Copyright 2007, by Mark Edward Vande Pol All rights reserved
Originally published May 6, 2007 at FreeRepublic.com. as,
Skinning Cats: Legal Means to Disarm the Second Amendment
Note: The links in this article were updated November 21, 2021
There are few things that keep me up at night, but this is one of them. It may be cynicism, but more likely it's the long sad experience of watching the courts over the years. So when your side finally wins one that should have you celebrating, and yet you walk away with a knot in your gut, it's probably warranted.
Senior Judge Laurence H. Silberman's majority opinion in Parker v. District of Columbia was a thing of beauty, affirming armed self-defense as an individual right pre-existing the Constitution. It was almost hard to believe. Maybe that's what's bugging me. Such wins are so few and far between that when you do finally see one, you're left waiting for the other shoe to drop.
For decades this property rights activist has witnessed the slow destruction of small landowners' means to make a living. News stories occasionally recount the outrage of property owners chased off their land by armed agents of the state. Game officials are now trained in riot control, wearing flak vests, and have little to no background in game management. Streams are fenced, preventing even wildlife from getting a drink. It's spooky.
The principal means instituting these evils are scads of rulings from the Federal bench with virtually no bases in constitutional law, at least, so it appears at first. What's less commonly known is that the people who wield that power actually operate on a powerful legal foundation based in statutes pursuant to treaty law, and therein lies the rub as far as gun owners are concerned, or should be.
Treaties are powerful. Nations are formed and surrender by treaties (the very existence of the United States is acknowledged by the Treaty of Paris). So given that the leftists have made such use of them in land control, perhaps it's not such a stretch for gun rights people to give treaties and international law more thought.
We'll start with the scope of their powers. The Constitution, Article VI, Clause 2 states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Treaty law supersedes both Congressional statues and all state laws, which given the abuse of the Commerce and General Welfare clauses should be enough to give one cause for pause. The obvious saving caveat is the phrase, "under the Authority of the United States." It should be fairly obvious that this phrase renders any treaty that involves powers not enumerated in the Constitution void. In other words, the government of the United States does not have the authority to agree to terms with any other nation, the enforcement of which would require powers that exceed its Constitutionally enumerated powers. So in theory at least, a citizen whose rights have been violated by an unconstitutional treaty should be able to sue and have the treaty thrown out.
It's never happened. That's a red flag. Perhaps we've never had such a treaty?
I'm going to rely in detail upon but one example in order to illustrate what an outrage this process has become: The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere. This treaty is so vague and open-ended that it must be read to be believed; its virtually unlimited scope is clearly beyond the powers granted to the Federal Government under the Constitution.
From the Preamble to the treaty:
The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control;"
"Any agency within man's control," is certainly a commitment that exceeds the Constitutional authority of the Federal government, but it gets worse. After going on at considerable length about wilderness areas and national parks, they come back with this language in Article V Section 1:
The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate law-making bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves referred to in Article II hereof.
In other words, the treaty applies to every inch of lands and waters within the United States. It commits every dime of the American economy to preserve ALL species. Ratification of a treaty with this scope is a betrayal of American citizens and their land. It commits them to achieve the unachievable: demanding a complete halt in the process of natural selection. That was in 1941.
So, how did this little beastie get ratified? This is the part that should scare gun owners to no end.
I was writing a book on environmental policy that examined this history. I contacted a friend of mine in DC and asked him to do a little research for me at the Library of Congress. He pulled the entire file on this treaty. In his summary report to a distracted Senate, Executive Report No. 5, April 3 1941, Secretary of State Cordell Hull quite obviously had deliberately misrepresented its virtually unlimited scope. He didn't say anything about land outside of parks and nature preserves.
There was no debate. There was no record of a committee vote. There was no record of a quorum. There was no recorded vote.
The problem is in the US Constitution, Article II, Section 2, Clause2:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
"Senators present" not two-thirds of the full Senate. It's the Constitution's original Poison Pill.
Hamilton's Federalist #75 makes an attempt to paper-over the obvious contention over the means of ratification.
Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan.
"Best digested" by whom? Although it was a LONG time ago when I read Farrand's Records, I do not recall any extended discussion on the adoption of treaties. I researched the twenty-four references with the string "senators present" for this article, and the only discussion I found was about treaty adoption in general, not a significant discussion on the requirement of a supermajority. This was obvious spin on Hamilton's part.
Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present.
It was a serious issue, and Hamilton knew it. Later in the paper, he makes his real intentions obvious:
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.
So according to Hamilton, the people's representatives can't be trusted to have a say in the commitments of the government at a level which supersedes all laws in the country. Great. Then why are they allowed to write the laws? Well, the means to circumscribe them is obvious.
Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy (emphasis in the original!!!), and despatch, are incompatible with the genius of a body so variable and so numerous.
Mr. Hamilton wants the people's representatives to be ignorant of the terms of a treaty drafted in secret and passed before they know it! What's this "We the People," stuff anyway!
The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
So not only does drafting, negotiating, and ratifying the supreme law of the land have to be completed before the people get wind of it, it has to be convenient! Treaties can take many years to negotiate, sometimes even decades. So to argue for expediency at that point is a bit silly.
Now, for the worst part.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.
The whole point of requiring a supermajority of the Several States (at least that's how it was before the 17th Amendment) to ratify changes to the supreme law of the land almost equivalent to the Constitution itself is a decision of that magnitude should have the approval of the whole people minus a tiny fraction of extremists, who should at least have the time to make their case.
If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder.
And now he gets to the closer.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance.
"Punctual attendance"?
The lack of a quorum call for the ratification of the Convention on Nature Protection readily shows what a joke that can be. Senators can easily have motive not to be in attendance so as not to be held accountable for taking a stand. So, there you have the best case Hamilton could make and he belabored it ad nauseum. His point was effectively, 'If we sneak one of these through in secret, with just a select group, and in a big hurry, it's your fault.'
Nor had this provision gone un-noticed. As is evident from Mr. Hamilton's language, it is obvious he was working off objections raised by others whom he doesn't name. Fortunately, someone was diligent enough to record the complaints of Patrick Henry in the Virginia Ratifying Convention:
The Senate, by making treaties, may destroy your liberty and laws for want of responsibility. Two thirds of those that shall happen to be present, can, with the President, make treaties that shall be the supreme law of the land; they may make the most ruinous treaties; and yet there is no punishment for them.
How ironic if the Tories of his day had disparaged Mr. Henry as if he was some "conspiracy nut." As things appear today he was more likely prescient.
In the last days of the 106th Congress, the U.S. Senate ratified a package of 34 treaties almost without notice. They were ratified as a package. There was no debate. There was no recorded vote. Two of them have implications nearly as broad as the Convention on Nature Protection: the International Plant Protection Convention and the UN Convention to Combat Desertification. Property rights groups, long used to this kind of perfidy were caught totally by surprise. When the deed was done and Jesse Helms was confronted, he looked at the activists and said that we had dropped our guard.
It was our fault.
Gun owners take note. Only last October (now April 2013), the UN has submitted its Arms Trade Treaty. We're almost there: What the DC Circuit giveth, a Democrat President and a few goons in the Senate could taketh away with complicit "Republicans" hiding their heads in the sand by simply failing to show up.
[Since this article was written, the UN has started slipping gun control language into the Convention on the Rights of the Child, probably on the strength of the idea that they can use "child protection" as cover for hidden powers to confiscate guns. Such powers are easily extended via legislation citing treaty authority and thence the courts. - MVP, 2009]
This is a situation that may soon call for vigilance at a level at to which gun rights groups are unused, particularly if a Democrat is elected President. We now have a Democrat Senate capable of anything, no matter how outrageous, and Republican "moderates" easy to cow, particularly if the payoff is to NOT be in attendance. We no longer have a Jesse Helms to gum up the works and buy time. Like sentries on the battle line, this job cannot be trusted to any one man or group at a time. Like any battle against an opposing army, this battle has its enemy generals who should be watched and observed for every move. Like any battle with unknown foe, it will require a means of collecting intelligence. If I could put a wire on Chuck Schumer I would do it.
This little article was meant to alarm you, because alarm is in order. The DC Circuit ruling, while a cause for celebration doesn't have us there yet. If we do win in the Supreme Court, don't think for a second that the gun-grabbing thugs of the left will let the situation get away from them without a fight. The threat we face is unambiguous. The motives are obvious. The enemy is committed. If the Second Amendment is hosed by treaty, we won't get the chance to let it happen again.
Mark Edward Vande Pol is the author of Natural Process - That Environmental Laws May Serve the Laws of Nature. This book demonstrates why regulatory environmental control is fundamentally flawed and proposes a free-market alternative together with examples and implementing strategy. You can learn more about this book at http://www.naturalprocess.net.
