Does the Federal Government have the Constitutional Authority to the Abrogate the Right to Keep and Bear Arms Through a Treaty? Robert Greenslade
I recently received an email from a reader concerning the right to keep and bear arms. This individual had come across a commentary that claimed the federal government has the constitutional authority to use its treaty power to abrogate the individual right to keep and bear arms. Since the debate over firearms ownership usually focuses on the intent and wording of the Second Amendment, this topic is rarely discussed.
The claim that the right to own a firearm can be abrogated through a treaty is based on the erroneous belief that federal government was granted unlimited power concerning treaties. In reality, the federal government's treaty power is extremely limited. This power is found in Article VI of the Constitution:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding."
This provision states that the Constitution and all laws and treaties made pursuant to the powers granted by that document are the supreme law of the land. Alexander Hamilton addressed the extent of this clause in Federalist essay No. 33:
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t is said that the laws of the Union are to be the supreme law of the land. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution."
As asserted by Hamilton, the clause is limited in scope. In his words, we see the principles of limited government and enumerated powers. If laws, in order to be supreme, must be passed pursuant to the Constitution, then it follows that the federal government has no power to adopt any treaty unless the subject embraced by the treaty is within the scope of the powers delegated to that government. Otherwise, this provision would be an absurdity because the treaty power could be used to negate the system of limited government established by the Constitution.
The federal government only exists within the scope of its limited enumerated powers. When that government enacts treaties pursuant to the Constitution, those treaties are supreme. If the federal government enacts treaties outside the scope of its enumerated powers, those treaties are of no effect because the federal government does not exist outside of its delegated powers. For example, the Constitution does not grant the federal government any authority over marriage within the several States. Thus, the federal government cannot use its treaty power to acquire or delegate to a foreign power or entity any authority over marriages within the individual States.
Since the Constitution is a compact between the several States, and the people, as comprising one nation, are not a party to that compact, the federal government cannot use the treaty power to bring the American people, or their rights, within the scope of that compact. In addition, the federal government cannot circumvent the limitations placed on its powers by the Constitution through a treaty. That would make a clause in the Constitution superior to the Constitution itself. Thus, the federal government cannot bind the American people, their individual rights, or their property, through a treaty.
Edmund Randolph, Governor of the Virginia, and a delegate to the Federal [Constitutional] Convention of 1788 made the following statement concerning the federal government's treaty power during the debates in the Virginia Ratifying Convention:
"I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty."
George Nicholas stated that the federal government could not make any treaty that embraced objects not within the scope of its delegated powers:
"The provision of the 6th article is, that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all the treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land. They can, by this, make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistant with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province. It is sufficiently secured, because it only declares that, in pursuance of the powers given, they shall be the supreme law of the land, notwithstanding any thing in the Constitution or laws of the particular states."
Mr. Corbin asserted that the treaty power pertained to the States:
"But, say gentlemen, all treaties made under this Constitution are to be the supreme law of nations; that is, in their way of construction, paramount to the Constitution itself, and the laws of Congress. It is as clear as that two and two make four, that the treaties are to be binding on the states only."
Mr. Corbin's observation was in total harmony with the Constitution. Since the Constitution is a compact between the States, it follows that the treaty power would be confined to the States. This is further verified by the fact that the treaty making power is vested in the Senate and the President. [See Article II, Clause 2] The Senate, as originally conceived, is the representative of the States and was appointed directly by the legislatures of the several States. The President is elected by electors appointed in a manner prescribed by the legislatures of the several States. Thus, the power to make treaties is within the exclusive control of the States. The House of Representatives, the so-called voice of the people, is excluded from the treaty making process.
If the treaty power was as extensive as some believe, then a corrupt President, with the aid of a sympathetic Senate, could conspire with a foreign power or entity, like the United Nations, and nullify the Constitution. Thus, they could dissolve the Union and make the States subject to a foreign jurisdiction. James Madison, in the Virginia debates referenced above stated: "[t]he power of making treaties does not involve a right of dismembering the Union."
As stated above, a delegated power cannot be greater than the document that grants the power. In addition, a delegated power, which is limited in scope, cannot be used by an agent to circumvent the grant of power that created the agent in the first place. The Founders intended the treaty power, for the most part, to pertain to war, peace and commerce with foreign nations. Since the right of the people to keep and bear arms is not within that sphere of power or the general powers delegated to the federal government, it cannot be constitutionally abrogated through a treaty.
This is further confirmed by the Ninth Amendment. The Amendment restrained the federal government from denying or disparaging the pre-existing rights of the people or any other right not enumerated in the Constitution.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"
Not only does this Amendment make the debate concerning the intent and wording of the Second Amendment totally meaningless because the right is secured through the Ninth Amendment, but it also secures the right from the treaty power. Since the Ninth Amendment, which was passed 3 years after the adoption of the Constitution, prevents the federal government from denying the people the right to keep and bear arms, it follows that the President and the Senate do not have the authority to use the treaty power to circumvent the Amendment. The federal government cannot constitutionally use a delegated power to abrogate an enumerated prohibition on the exercise of power. This principle would also apply to treaties and the Second Amendment.
In spite of these limitations, there will probably come a time in the not too distant future when the usual suspects in the federal government advocate a treaty, through the United Nations, to deny or take away the individual right to keep and bear arms. They will prey upon the constitutional ignorance of the American people and then attempt to have their minions in the federal judiciary re-write the treaty power from the bench just as they did with the General Welfare and Commerce Clauses.
We should never lose sight of the fact that there are individuals within the government power structure who advocate global government. They can never achieve their goal if the American people remain armed. If there is a movement for treaties limiting the private ownership of firearms it will be globalists in the federal government leading the charge.
Knowledge is power. We are losing the Constitution and our federal system of government because government is using the people's lack of knowledge to acquire more and more power. Hopefully, if the time comes, there will be millions of individuals in the firearms community willing to step forward and remind the federal government that you were never granted the constitutional authority to use the treaty power to take away our right to keep and bear arms.
http://www.sierratimes.com/05/05/26/greenslade.htm
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