Monday, December 24, 2012

Treaties, Executive Orders, and the NRA

So... It seems that a lot of folks understand that the electoral math of the question makes any significant federal gun control in the near future unlikely.

Unfortunately, many still hold the idea that somehow, the Obama administration doesn't need congress to implement gun control; that they could do so by executive order (or that the ATF would do so without congressional action, at Obamas direction), or by signing the UN arms treaty; and that they would of course, do so at their earliest opportunity.

... I guess because Obama is the living earthly incarnation of satan or something?







Comics from the new and so-far very good web comic Failure to Fire

Finally, these same folks mostly seem to believe that the NRA is useless, or worse, actively conspiring with the evil one to take away our guns etc... etc...

All three of these ideas are entirely incorrect, as I have written here and on other blogs many times before (as this is a commonly held mistaken idea that has come up often).

Oh and an aside: anyone who is getting their information or opinions (on any subject whatsoever) from reading things like Alex Jones, Joseph Farrah, World Net Daily, or anything that Larry Pratt or the GOA put out... you should really just stop. They’re about 90% full of it, and the 10% that isn’t, is overblown.

Before we get get into the legalities of the first two ideas, let's talk about the politics for a second...

For those that do, please tell me... Why do you believe so strongly that, against all evidence, gun control is the hill the democratic party wants to die on?

Because, make no mistake, that's what it would be; even if the gun control was Obama and his administration alone, without the action of congress.

If Obama really cared that much about gun control, he would have done it already.

If you think that "He was just waiting for his second term. Now that he doesn't have to be re-elected, you'll see, he'll do all the things we've been saying he was going to since 2008"...

...You're an idiot.

Oh it's absolutely true that Obama will be more liberal/progressive/socialist etc... this term; and will get more aggressive about what he wants etc... (or perhaps more to the point, his far more radical appointees, who he can sacrifice if necessary, will do so).

It's this ridiculous argument that somehow Obama is special, specially evil etc... and that by virtue of this he has some magical ability to completely ignore the realities of law, the constitution, government, politics... physics... that makes these folks idiots.

Perhaps there are some rational arguments to be made that perhaps Obama want's gun control bad enough to commit politicial suicide, or to have his party do so; but I haven't seen them being made. Just this idiotic "because he's Obama, that's why" crap.

Yes, Obama want's more gun control (though not to the extent that some seem to think), but in order to do so, he needs to deal with CONGRESS.

Obama wants a lot more things, a lot more than he wants gun control; and he isn't going to waste any political capitol whatsoever on a subject he doesn't really care about that much.

Why do you think he put Joe Biden in charge of the "special comission"?

If he was serious, he'd be leading the charge himself. He'd be on television twice a day with specific ideas, and demonizing opponents etc...

If it works out, hey, great, he can claim credit. If it fails (and it will), he doesn't get any of the blame.

What Obama really wants is to raise taxes, cut the military, increase social spending etc... He's not stupid, he knows that he's going to need congress to do it.

What Obama absolutely does NOT want, is to see Obamacare repealed (for which he's going to need to have at least the senate stay under democratic control); and that trying to shove gun control down our throats would just about guarantee all the vulnerable Democratic senators would lose their seats.

There are maybe a dozen truly committed, truly anti-gun senators, and maybe two dozen in the house... plus another dozen completely safe seats in the senate and maybe 50 or 60 in the house. No-one else is going to put their seat on the line over an issue that they either don't care about all that much, or that they don't see any major advantage in supporting.

Now, on to the legal question

Neither treaties nor executive orders can violate the constitution (including the court decisions interpreting the constitution).

First, treaties:

Some seem to believe that a double evil combination will occur, where Obama signs a treaty that will unconstitutionally ban small arms; and by doing so while congress is in recess, he can immediately implement the provisions of the treaty to do so.

If you believe this, let me say to you, right now, without any hesitation...

YOU'RE A MORON

Or, at the very least, you have no business having an opinion on this subject, since you have no idea how our government works, or anything about law, or the constitution.

Treaties cannot be implemented without the approval of congress. They must be ratified by the senate, and their implementation must be enabled by house legislation (approving the funding for implementing the provisions of the treaty).

If a treaty is signed, but never ratified, the executive branch cannot implement any of its provisions.

However, that's entirely irrelevant because...

Treaties don't trump the constitution, nor do they override court decisions interpreting the constitution.

Ever, under any circumstances.

Treaties can supersede state and federal law, but not the constitution.



Any provision of any treaty that would do so, is automatically null and void.

Here are the relevant supreme court decisions:

Amaya v. Standard Oil:
"the treaty-making power does not extend ‘So far as to authorize what the constitution forbids.’"

Reid v. Covert (which is controlling in this question):
“No agreement with a foreign nation can confer power on Congress, or on any other branch of Government, which is free from the restraints of the Constitution. 
There is nothing new or unique about what we say here. This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.” – Reid v. Covert, October 1956, 354 U.S. 1, at pg 17.
And the summary of the majority opinion:
“The United States is entirely [354 U.S. 1, 6] a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. 
(Quoting Article VI, Clause 2…)
“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 … ” 
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. 
Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.”
Treaties MAY NOT supersede the constitution; however, it is important to note that the constitution does not necessarily apply to actions outside our borders and not concerning our citizens (US v. Curtis Wright).

The ratification of a treaty is an act of congress, and no act of congress, or its effects, may supersede the constitution. Article II and Article VI are mostly clear, and what ambiguity there is has been clarified numerous times by the supreme court.

Treaties CAN AND DO trump previous federal laws, and both state laws and state constitutions; which was clarified in Gibbons v. Ogden.

...And on to the executive orders...

Now, there's some important language I quote above:
"The United States is entirely [354 U.S. 1, 6] a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."
As this applies to acts of congress, it also applies to the executive branch and its agencies.

The substance and authority of the government exists solely in the constitution; therefore no agency of it may act outside of its authority.

Because great power and discretion are given to the president (and by extension the executive branch) in foreign affairs, executive orders can ignore the constitution outside the borders of the country and when acting on non-citizens; but they cannot ignore the constitution inside our borders, or when dealing with American citizens.

"It doesn't matter if its unconstitutional, Obama is evil and doesn't care, and he's going to do it anyway"

Yeah...

Rather than address this whole thing again on the politics side, I'll just refer you back to the politics section above, and say...

YOU'RE A MORON

Or at the least, without any knowledge or understanding, you're parroting misinformation spread by either morons, or by those who are deliberately manipulating you (most likely for fundraising purposes).

But since we're in the legal section, let's get back to that...

I can see that there are some arguments (other than the "but he's evil" one that is), where its plausible the Obama administration might decide to attempt some blatantly unconstitutional garbage...

But...

Why do you believe that if the Obama administration suddenly decides to do various clearly and obviously unconstitutional things, that they'll actually be allowed?

That they'll have funding to do so?

That they won't be stopped by the courts?

That there won't be a million lawsuits?

That the various officials of the executive branch will go along with it?

That the enforcement agents of the executive branch will implement and enforce these new unconstitutional measures?

Again, I'm not talking about the possibility that they may attempt minor and lesser executive action to restrict guns in some ways (more on that below); just the idea that somehow, because Obama is extra special magic evil; that he can all of a sudden magically seize or ban all our guns (or all our evil black guns etc...)

Ok... the NRA

Right now I'm rather irritated with the NRA.

Not because they are "evil, ineffective, compromising backstabbers", but because of this:

http://home.nra.org/pdf/Transcript_PDF.pdf

This statement... Much of it is reasonable, true, good, useful helpful; unfortunately, some is very much not:
And here's another dirty little truth that the media try their best to conceal: There exists in this country a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people. 
Through vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse. And here’s one: it’s called Kindergarten Killers. It’s been online for 10 years. How come my research department could find it and all of yours either couldn’t or didn’t want anyone to know you had found it?
Then there’s the blood-soaked slasher films like "American Psycho" and "Natural Born Killers" that are aired like propaganda loops on "Splatterdays" and every day, and a thousand music videos that portray life as a joke and murder as a way of life. And then they have the nerve to call it "entertainment." 
But is that what it really is? Isn't fantasizing about killing people as a way to get your kicks really the filthiest form of pornography?
In a race to the bottom, media conglomerates compete with oneanother to shock, violate and offend every standard of civilized society by bringing an ever-more-toxic mix of reckless behavior and criminal cruelty into our homes — every minute of every day of
every month of every year. 
A child growing up in America witnesses 16,000 murders and 200,000
acts of violence by the time he or she reaches the ripe old age of 18. 
And throughout it all, too many in our national media … their corporate
owners … and their stockholders … act as silent enablers, if not
complicit co-conspirators. 
Rather than face their own moral failings, the media demonize lawful gun owners, amplify their cries for more laws and fill the national debate with misinformation and dishonest thinking that only delay meaningful action and all but guarantee that the next atrocity is only a news cycle away.
Ahhh yes... it's all the medias fault, especially that nasty TV and those awful video games.

Not only is this not helpful, in context it is both idiotic, and actively HARMFUL.

Not intentionally so of course; but in spectacular arrogance and ignorance.

I think the Penny Arcade response to this is appropriate here:



Lord knows, this isn't the first time the NRA was harmfully wrong (their entire history on the Heller case for example)... and it won't be the last.

However, that doesn't mean that I don't generally support the NRA.

I'm a life member, and I won't be resigning my membership over this stupidity (though I will be letting them know how I feel; and unlike most gamers, I know people inside NRA management... I would suggest everyone else who does as well, also make their displeasure known).

The NRA are by far the most effective organization for protecting our rights surrounding firearms and self defense (as I have written many times before, for example: http://anarchangel.blogspot.com/2010/06/political-captial-fundraising-mission.html)

The GOA has been promoting the idea for years that the NRA are the bad guy... but frankly, the only thing Larry Pratt believes in is Larry Pratt... And the only thing the GOA is effective at is spreading  unreasonable fear, and disinformation, aimed at increasing their fundraising.

Without the NRA our right to keep and bear arms would be fully abrogated by government... and would have been long ago.

Are they perfect? No. But they're the best we've got, and they do the best they can; and they are certainly NOT "part of the problem".

All that said... there's still some potential problems (of course)

I don't mean to suggest that there isn't any possible thing that the Obama administration could do on its own, or headaches, irritation, delays and difficult etc... they could cause.

For example, through executive orders and "administrative procedures", "administrative rules", "executive agency regulations" etc... the import of some firearms... possibly even all firearms, and ammunition... could be accomplished.

That is a foreign policy action, which has what could be interpreted, in principle, as having enabling legislation, depending on interpretation.

The administration couldn't ban the domestic manufacture, sale, or possession of any particular type of firearm; nor could they establish standards through the ATF or DOJ that would have the effect of doing so (there is specific legislation addressing this issue, and executive orders cannot counter that).

...BUT...

That doesn't mean they couldn't make life immensely more difficult; applying maximum scrutiny to every manufacturers, distributor, FFL etc...

Some have suggested they could simply order the NICS system shut down; but there's actually a default out for that. Even if there wasn't, this would clearly be an action intended to ban further sales of firearms, and the courts would be on that in a heartbeat (with the SAF, SAAMI, the NSSF the NRA, and every firearms manufacturer behind it).

...But they could make every transaction go through enough scrutiny to make the 3 day delay/proceed limit; backing the system up, and preventing sales entirely in some gun control states.

They could also go for some restrictions that may be allowed under existing law, and wouldn't be clearly unlawful or unconstitutional... The evil mind can think up lots of scenarios where some restriction could happen...

But again, the politics of the situation militate against it; except possibly in a minor way.


So, to appropriate the meme:



Keep Calm and Carry One... or More... Guns...


18 comments:

  1. I'm not sure where you are getting your info, but good topic. I needs to spend some time learning much more or understanding more. Thanks for fantastic info I was looking for this information for my mission.

    My blog post: Click On this page
    My page > Www.Prweb.Com

    ReplyDelete
  2. I almost never сreate remarks, but i diԁ sοme sеarching and wοund up here
    "Treaties, Executive Orders, and the NRA". Anԁ I actually do hаvе 2 queѕtions for you if
    you usually do not mind. Is it only me or
    does it look like a few of these remaгks lоok like they are wrіtten bу brain dead peoplе?
    :-P And, if you are writing on additional social sites, Ι would like
    to follοw everything fresh yоu have to post. Could you make a lіst of all оf all уour sharеd sites like уour Fаcebook pagе, twіtter feed,
    or linκedіn profile?

    Нere iѕ my page: http://titanicni.co.uk
    My web site > http://www.Prweb.com/releases/silkn/sensepilreview/prweb10193901.htm

    ReplyDelete
  3. Currently it sounds like Expression Engine is the best
    blogging platform available right now. (from what I've read) Is that what you are using on your blog?

    Feel free to visit my page - www.english4today.com

    ReplyDelete
  4. hi!,I love your writing so much! share we keep up a correspondence more about your article on AOL?
    I need a specialist on this space to resolve my problem.
    May be that is you! Having a look ahead to see you.

    My blog post; airplane simulation games

    ReplyDelete
  5. Just wаnt to say youг article iѕ as amazing.
    The clarity on your post is simplу great and i could suppose yοu
    arе knowledgeable οn this subject. Fine togethеr ωith your permissіon allow me tо seize yоur feed to keep
    uρdated with coming near near ρоst. Thanκ
    you 1,000,000 anԁ рlеase
    continue thе gratіfying ωork.

    my blog рost: http://scratchez.com/DwightSamu

    ReplyDelete
  6. It's an awesome paragraph in favor of all the web viewers; they will obtain advantage from it I am sure.

    My web page: www.bison2bi.com

    ReplyDelete
  7. If some one wishes expert view on the topic of blogging afterward i
    suggest him/her to go to see this blog, Keep up the good job.


    Also visit my web site; tv shows online

    ReplyDelete
  8. Magnificent beat ! I wish to apprentice while you
    amend your web site, how can i subscribe for a blog website?
    The account aided me a acceptable deal. I were tiny bit acquainted
    of this your broadcast offered brilliant transparent idea

    Also visit my web-site - tv links

    ReplyDelete
  9. Hі, its fаstidiοuѕ pieсe of wrіting regarding media print, we all be familiar ωith
    media is a enormous source of infoгmation.


    Look at my blog ρoѕt juddsim.blogspot.com

    ReplyDelete
  10. Awesοme ωebsite уоu hаve heгe but I was wаnting to know if you κnew of any community forums that cоver thе same topiсs talked аbout herе?
    І'd really love to be a part of group where I can get advice from other knowledgeable individuals that share the same interest. If you have any suggestions, please let me know. Kudos!

    Look into my web page: Silkn Sensepil Reviews

    ReplyDelete
  11. Thank you for еѵery otheг wоnderful pоst.
    Wherе еlse may just anyone gеt that tyрe οf іnfo in such an ideal means of writіng?
    I've a presentation next week, and I am on the search for such info.

    My page ... Personal website http://www.sfgate.com/business/prweb/article/V2-Cigs-Review-Authentic-Smoking-Experience-or-4075176.php

    ReplyDelete
  12. I'm really loving the theme/design of your website. Do you ever run into any web browser compatibility problems? A small number of my blog visitors have complained about my blog not working correctly in Explorer but looks great in Opera. Do you have any advice to help fix this issue?

    Take a look at my blog ... click the Up Coming document

    ReplyDelete
  13. This site was... how ԁo you say it? Relеvant!

    ! Finallу I've found something which helped me. Kudos!

    My web-site ... http://Prweb.com/releases/silkn/sensepilreview/prweb10193901.htm

    ReplyDelete
  14. May I ѕimply saу what а comfort tο discoνеr ѕomeone ωho truly knowѕ what they aгe discuѕsіng ovег the internet.
    You definitely realizе how to bring an іѕsuе to light and makе it important.
    A lοt more pеοplе must check this out and understand this side of thе storу.
    It's surprising you are not more popular because you definitely possess the gift.

    Also visit my blog prweb.com

    ReplyDelete
  15. An outstanding share! I have just forwаrdеd this onto
    a co-worker who had bееn ԁoing a littlе reseаrch on this.
    And he actually ordeгеԁ me lunсh ѕimply beсause I ԁiscovered
    it for hіm... lol. So let mе rеwoгd thіѕ.
    ... Thanκs foг the meal!! But yeah, thаnx for sρеnԁing the
    time to talk about this subject here on yоur internet ѕіte.


    Heгe is my ωeb site :: silkn sensepil review

    ReplyDelete
  16. Hi friends, fastidious post and good arguments commented at this place, I am actually enjoying by these.



    Feel free to visit my website: diet plans to lose weight

    ReplyDelete
  17. Country by country we might think about doing something good, and those who shop for it as
    they can be easily confused if an email Student Loan people campaign should be updated.
    Bigger obstacles lie ahead, and this includes when we're out having a coffee and importantly when we're
    shopping. A couple of articles I'll discuss the building of this type of program. Negotiate with your sponsors to buy radio ads in exchange for a fee to cover all or part of your team.

    ReplyDelete
  18. Batteries are effortlessly unscrewed for cartridge replacement where the nicotine pad is firmly affixed
    into it with no leakage problems. A recommended way to commence is to attempt an economic starter kit.
    A exciting sighting there was Peter Mensa from Accurate Blood acquiring a facial from Renaud Paris.
    Conde Nast Traveler celebrated the 85th Anniversary of 'The Leading Hotels Of The Globe,' at a chic event celebrating the bond in between film and travel at
    Mr. This device works really properly like a normal way of smoking but the huge distinction is that fact it doesn't contain any toxins.

    Feel free to surf to my web blog: buy v2 cigs coupon uk

    ReplyDelete