Obama trying to undermine our 2nd Amendment rights in a typical Obama way

Coach is Right ^ | 12/26/14 | Doug Book

[Pollster1]

I would prefer to avoid a second civil war. I hope and pray that Obama will make it through these final two years without crossing and lines that cannot be accepted. I’m not optimistic on that account.

[philman_36]

However, if they do ratify the treaty, then a treaty can take away our rights as defined by the Constitution.

A positive law can nullify a natural law? Is that what you're saying?

[Cymbaline]

You’d only need one XO for that.

[Phlyer]

What part of "as defined by the Constitution" is unclear to you? The words, "natural law" do not appear in the Constitution. If you're saying that there are rights that are not defined in the Constitution, we agree (see the 9th Amendment). We may even agree on what some of them are. But that's now what my comment was about. Conversely, I would never - and did not - say anything like: "A treaty can repeal the natural law of gravity."

In part, this revolves around the definition of what a 'right' is. My definition (posted several times already in various threads) is that a 'right' is a capability that the government has the power to take away from you, but not the authority. Whether it is moral or ethical or whatever may be a basis for deciding what authority to grant to the government. That's a different question. If you're trying to say that there are certain "unalienable" rights that are derived from "Nature's God" and which no legal document (a law) should ever constrain, we may agree. That's not relevant to the definition I use for legal 'rights.' On the other hand, the 'Bill of Rights' is exactly consistent with my definition, because it explicitly states things that an autocratic government would have the power to take away from us, but by the Constitution the US Government does not have the authority to take away from us.

[Phlyer]

In fact any subsequent amendments that do not specifically mention abridgement of the 9th and 10th should probably not be construed so as to abridge them.

I agree completely. And if I were on the Supreme Court that is exactly how I would 'interpret' any relevant questions.

However, that's not the topic. In essence, if there were a treaty, duly approved by the Senate, that explicitly did abridge the 9th and 10th Amendments, then by the words of the Constitution, those would become moot.

Our only protection against that is that treaties require the approval of 2/3 of the Senate.

conclude the government is illegitimate

"Legitimate" (or illegitimate) are good points of discussion. Applying one or the other of those labels depends on what you assume the labels mean. Are they purely legal terms, or are there moral/ethical/cultural meanings that may override the legal usage?

I would conclude, for example, that any US Government, through a treaty approved by 2/3 of the US Senate, that abridged fundamental parts of the Constitution without going through the defined amendment process, would be 'illegitimate' in the sense that it violates the contract between "We, the People" and our government.

However, to a lawyer, the legal process would have been complied with if the treaty is approved, and the Constitution establishes that approved treaties are co-equal with the formal Constitution.

I truly wish the Senate and the US Supreme Court were as careful with their responsibilities as the power they have would warrant. At the least, they should have the moral, ethical, and intellectual honesty to admit explicitly when something that they approve (for the Senate with treaties) or interpret (for the US Supreme Court) abridges the written words of the Constitution.

[philman_36]

So, once again, I ask my simple question...

A positive law can nullify a natural law? Is that what you're saying?

A simple yes or no will suffice, no diatribe is necessary.

[philman_36]

...a 'right' is a capability that the government has the power to take away from you, but not the authority.

So by YOUR thinking from whence does such "power" derive?

Which goes directly back to my previous question. How is it, in your mind, that man made legislation (positive law) overcomes natural law which is precedent to the former.

Simply by the act of "making some action a law" by legislation?

[no-s]

In essence, if there were a treaty, duly approved by the Senate, that explicitly did abridge the 9th and 10th Amendments, then by the words of the Constitution, those would become moot.

Aside from the 9th and 10th, there is also the concept of enumerated powers. Basically, I assert that any interpretation that allows the government to evade such limits is (apparently imho only, alas) is not a legitimate construction. Treaties are not explicitly asserted to evade enumerated powers, and in any case can not abridge unenumerated rights because the 9th and 10th forbid that. Also the 2nd amendment precludes modification by treaty in any case, as it explicitly further restricts the power of the government and if in conflict with the treaty clause, the 2nd would be superior as a modification of the constitution. And seeing as how the method of amendment is explicitly laid out, and powers are limited, there is no legitimate authority to evade the process of amending the constitution.

Should a government make a practice of asserting power and authority based on an illegitimate construction, it would not be a legitimate government. This is what I mean to imply by illegitimate.

[Phlyer]

A simple yes or no will suffice, no diatribe is necessary.

My answer is, "6".

(Ask an irrelevant question and you'll get an irrelevant answer.)

[Phlyer]

So by YOUR thinking from whence does such "power" derive?

From the barrel of a gun. From an essential monopoly on organized force. Why do we pay taxes? Because they'll come after us with guns if we don't. Power is the ability to make something happen.

If "We, the People" refused to obey - dying if necessary before the guns of the government - then eventually the government would lose its power. But we haven't yet, and right now the government has enormous power.

[Phlyer]

Should a government make a practice of asserting power and authority based on an illegitimate construction, it would not be a legitimate government. This is what I mean to imply by illegitimate.

I agree. Unfortunately, the checks and balances in the Constitution have been eroded by the courts, including the US Supreme Court. Until and unless we have another major revolution, the opinions of We, the People are undermined by the concentration of power in the federal government.

You are providing an 'interpretation' of the words of the Constitution, and you give precedence to the clear and unambiguous language that establishes intent on things like how the Constitution should be amended. I would also.

So an unfortunately relevant question is: Is there an interpretation of the Constitution that would allow them to play one part off against another and increase the power of government? We've seen how that comes out time and time again.

When the US Supreme Court says that 'shadows and penumbras' of what is written trump the plain language of the 10th Amendment, then the 'intent' of the Constitution is no longer any protection for We, the People.