Durk Pearson & Sandy Shaw’s®
Life Extension NewsTM
Volume 16 No. 1 • January 2013

Update on Bond v. United States

Return to Federalism, Bond v. United States and the Treaty Power

In the August 2012 issue of this newsletter we reported on a remarkable unanimous decision at the U.S. Supreme Court that a woman had standing to challenge her indictment under a federal law on the basis that her case involved a local matter that, under the Tenth Amendment, should have been dealt with by state law (and which would have resulted in a much shorter prison sentence). As you will recall, the Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In a rare federalism issue, the Court upheld Bond’s standing to challenge her indictment under the Tenth Amendment, ruling that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. (This was reported in The Volokh Conspiracy Daily, a blog by a constitutional attorney at www.Volokh.com.)

The Case Isn’t Over

As the Volokh report continues, it explains that the case is not over. “When it was returned to the lower federal courts for a decision on the merits, the U.S. Court of Appeals for the Third Circuit under which Bond was convicted is authorized by an international treaty.” (D&S Comment: Words seem to be missing here after the word “convicted.” It is likely that what it said was probably something like “was upheld on remand and is authorized by an international treaty.”) As Volokh notes, this raises the question of whether the federal government can use treaties to extend its authority to areas under which it has no Constitutional authority, eg. to areas beyond its authority. Volokh reports that the Cato Institute has filed an amicus brief urging the Supreme Court to hear an appeal to this decision by the U.S. Court of Appeals for the Third Circuit and to reverse it. It would, of course, require the highly unusual action by the Supreme Court of hearing a case twice.

Volokh writes that the brief for the case was authored by Georgetown law professor Nicholas Rosenkranz (a leading academic expert on the constitutional law of treaties), Ilyo Shapiro, and Trevor Burrus and quotes from the brief: “Bond has thus brought her case back to the Supreme Court, asking the Court to clarify and cabin Holland [Missouri v. Holland, 1920, which appears to be the source of a single sentence by Justice Oliver Wendell Homes that has been interpreted to mean that Congress’s constitutional powers can be expanded by treaties]. In this, our third brief in the case, we are joined again by the Center for Constitutional Jurisprudence in arguing that allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has gotten repeated without question and that the ruling is in deep tension with other cases. We’re in a quagmire with respect to the treaty power that can only be escaped by limiting or overturning Missouri v. Holland.”

Though it is unlikely that the Supreme Court will take the case, we can only hope they do. If treaties can override Constitutional limits without an Amendment, as indicated above, the federal government of “limited” powers can be expanded without limit by treaties created by the Executive branch and approved by a vote of 2⁄3 of the Senate. The requirement of a 2⁄3 vote for approval by the Senate is a significant hurdle but is far less than the 2⁄3 vote of both Houses of Congress to propose an Amendment or 2⁄3 of the States to call a Convention to propose Amendments, after which 3⁄4 of the legislatures of the States must approve it (or them). See Article V of the Constitution.

Get Rid of Private Gun Ownership With a U.N. Treaty

An example of the sort of thing that is being sought by the Obama Administration in the form of a treaty that would make hash of an important right in the Bill of Rights of the Constitution is a United Nations treaty currently in the works to severely limit, regulate, or ban the private ownership of small arms. (At present we think—and certainly hope—it unlikely that 2⁄3 of the Senate would vote to approve such a treaty.) The treaty, if it passed the Senate, though, would wreck the Second Amendment because, in light of Missouri v. Holland, a treaty restricting or prohibiting ownership of small arms might “override” the Second Amendment. (The scary question to consider here is: WHAT IS THE PURPOSE the Obamaistas have for disarming the American populace?)

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