If Heller goes bad- Montana may secede???

[evan price]

http://sos.mt.gov/News/archives/2008/February/2-19-08.htm
http://www.washingtontimes.com/apps...0080219/EDITORIAL/646772049&template=nextpage

Secy of State Brad Johnson of Montana delivered a letter to the Washington Times about possible outcomes of the Heller decision.

Second Amendment an individual right

The U.S. Supreme Court will soon decide D.C. v. Heller, the first case in more than 60 years in which the court will confront the meaning of the Second Amendment to the U.S. Constitution. Although Heller is about the constitutionality of the D.C. handgun ban, the court's decision will have an impact far beyond the District ("Promises breached," Op-Ed, Thursday).

The court must decide in Heller whether the Second Amendment secures a right for individuals to keep and bear arms or merely grants states the power to arm their militias, the National Guard. This latter view is called the "collective rights" theory.

A collective rights decision by the court would violate the contract by which Montana entered into statehood, called the Compact With the United States and archived at Article I of the Montana Constitution. When Montana and the United States entered into this bilateral contract in 1889, the U.S. approved the right to bear arms in the Montana Constitution, guaranteeing the right of "any person" to bear arms, clearly an individual right.

There was no assertion in 1889 that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of "any person" to bear arms.

As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states.
Numerous Montana lawmakers have concurred in a resolution raising this contract-violation issue. It's posted at progunleaders.org. The United States would do well to keep its contractual promise to the states that the Second Amendment secures an individual right now as it did upon execution of the statehood contract.

BRAD JOHNSON Montana secretary of state Helena, Mont. Montana, the Second Amendment and D.C. v. Heller

 

[evan price]

RESOLUTION OF INDIVIDUAL LEGISLATORS OF THE 60TH MONTANA LEGISLATURE AND OTHER ELECTED MONTANA OFFICIALS Quote:
WHEREAS, the United States Supreme Court (Court) has agreed to review and decide the case of D.C. v. Heller appealed to it from the D.C. Circuit Court of Appeals;

WHEREAS, the Court has agreed to consider the question, "Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes";

WHEREAS, when the Court determines in Heller whether or not the Second Amendment secures an individual right, the Court will establish precedent that will affect the State of Montana and the political rights of the citizens of Montana;

WHEREAS, when Montana entered into statehood in 1889, that entrance was accomplished by a contract between Montana and the several states, a contract known as The Compact With The United States (Compact), found today as Article I of the Montana Constitution;

WHEREAS, with authority from Congress acting as agent for the several states, President Benjamin Harrison approved the Montana Constitution in 1889, which secured the right of "any person" to bear arms, clearly intended as an individual right and an individual right deemed consistent then with the Second Amendment by the parties to the contract;

WHEREAS, the wording of the Second Amendment and the Montana right to bear arms, now Article II, Section 12, exist today in form and wording identical to that agreed upon by the citizens of Montana and the United States in 1889 and unchanged since then; and

WHEREAS, a contract, compact or treaty must be implemented consistent with the terms and understandings in place at the time entered into.

THEREFORE BE IT RESOLVED by the undersigned members of the 60th Montana Legislature as follows:

1. That any form of "collective rights" holding by the Court in Heller will offend the Compact; and

2. That the Second Amendment and the Montana right to bear arms are both statements securing a preexisting right from government interference, and do not confer any boon of government upon the people; and

3. The level of review for the Montana right to bear arms and for the Second Amendment are specified within those declared rights -- "shall not be infringed" for the Second Amendment, and "shall not be called in question" for the Montana right to bear arms;

4. Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any "collective rights" holding in Heller;

5. The undersigned incorporate by reference here a more thorough, attached explanation of the contract argument advanced; and

6. The undersigned legislators appreciate the attention of the Court to this argument on behalf of Montana and its citizens.


Elected officials in concurrence:

Synopsis of argument

A collective right interpretation of the Second Amendment by the Court would breach Montana's Compact with the United States, a contract entered into in 1889, a time when no authority seriously held a collective right view and therefore no part of the intent of the contracting parties.

Intent of the parties

When Montana entered into statehood and adopted the Compact as a part of the Montana Constitution of 1889[12], included was a provision guaranteeing the right to bear arms to "any person."[13]. The right to bear arms reservation was at Article III, Section 13 of the 1889 Montana Constitution. This was exactly the same language as used in the territorial Montana Constitution of 1884[14]. The language was unchanged in the revision and readoption of the Montana Constitution in 1972, with the RKBA provision being lodged at Article II, Section 12[15].

To be clear, the wording of the right to bear arms reservation in the Montana constitution is exactly the same today as it was in 1884, and as it was in 1889 upon adoption of the Compact. This reservation of right clearly and unambiguously contemplates an individual right for "any person," language that simply cannot be respun to somehow mean a right of state government. As the Montana Supreme Court has said, the individual rights reserved by the people to themselves in the Montana Constitution are specifically a direct bar to government actors. (St. v. Long, 216 M 65, 700 P2d 153, 42 St. Rep. 643 (1985)) This is contradictory to a theory that when the people of Montana reserved themselves this right they somehow meant to confer authority to government actors.

….. That is, Congress knew full well that the people of Montana had reserved the right of "any person" to bear arms, and found that reservation not inconsistent with the federal system and the Second Amendment. "It is further to be observed that treaties are the subject of careful consideration before they are entered into, and are drawn by persons competent to express their meaning, and to choose apt words in which to embody the purposes of the high contracting parties." (Rocca v. Thompson, 223 U.S. 317, 32 Sup. Ct. 207, 56 L. Ed. 453.)

 

[PercyShelley]

I presume that this is just chest-beating, and not a serious legal statement, right? There is, as I recall, a resoundingly negative precedent regarding the right of states to secede.

Very inspiring anyway. Perhaps I ought to move to Montana (and become a dental floss tycoon).

 

[ctdonath]

I presume that this is just chest-beating, and not a serious legal statement, right?

Dunno about that. There's a sound legal principle involved, the MT Secretary of State is leading it, a non-trivial number of legislators are supporting it, and the Declaration of Independence is looking rather current.

Yes, there is certain precedent - which interestingly happened before MT joined the Union.

 

[AZAndy]

Perhaps I ought to move to Montana (and become a dental floss tycoon).

Frank! Ol' pal, I thought you was dead!

 

[lanternlad1]

There is no precedent of a single state trying to secede that I know of. The Civil War was a collective action by a group of states, The Confederacy. Montana and Vermont often have questions of secession on their ballots which come closer and closer to happening every year as I understand it. Hawaii and Texas also have the right to secede, as they were separate countries before joining the USA (Republic of Texas and Kingdom of Hawaii) although I don't see that happening anytime soon. Montana has made serious precedent of flouting the FedGov as of late (disallowing the Patriot Act inside its borders, refusing to allow the U.N. flag to fly any where in Montana) and I applaud them. I'd have moved there already, but the wife is a native Texan, and doesn't like the cold. Also, this will cause the SCOTUS to sit up and take notice (hey, that rhymes!) and SERIOUSLY consider the consequences of their actions.

 

[romma]

Hooray Montana!! I wish more States would draw the same line in the sand.

At least Washington would get the message on how important this is to "We The People"...

 

[ozwyn]

times like this i look over at cold, cold montana with just a little envy...

 

[xjchief]

There is no precedent of a single state trying to secede that I know of. The Civil War was a collective action by a group of states, The Confederacy. Montana and Vermont often have questions of secession on their ballots which come closer and closer to happening every year as I understand it. Hawaii and Texas also have the right to secede, as they were separate countries before joining the USA (Republic of Texas and Kingdom of Hawaii) although I don't see that happening anytime soon. Montana has made serious precedent of flouting the FedGov as of late (disallowing the Patriot Act inside its borders, refusing to allow the U.N. flag to fly any where in Montana) and I applaud them. I'd have moved there already, but the wife is a native Texan, and doesn't like the cold. Also, this will cause the SCOTUS to sit up and take notice (hey, that rhymes!) and SERIOUSLY consider the consequences of their actions.

The government that preceded the US annexation of Hawaii was the Republic of Hawaii not the Kingdom of Hawaii. It existed for about 4 years after replacing the kingdom. There is, to my knowledge, no right of succession in Hawaii's constitution.

I fully support and commend Montana on it's efforts to preserve the rights of it citizens. It really is time for the states to assert their legal rights as the feds continue to push for more and more centralized control. The US Constitution has been stretched to the point of absurdity on so many issues and it's time someone stood up and said enough is enough. If I weren't moving back to Hawaii for family reasons, I'd be packing my bags for Montana.

 

[NG VI]

I love the Montana legislature! look at those principles and integrity!

My state isn't bad at all, but Montana rocks!

 

[green-grizzly]

That legal argument seems weak and convoluted to me, like something cooked up by the local constitutionalist pro se litigants. Probably it is for the best that Montanta did not file a brief.

More power to them though. I think they would have been better off just saying they will not tolerate federal interference with their guns, and just because the Supreme Court misinterprets the 2nd Amendment does not mean Montana will too. I wish more states and the Congress had the balls to do that, instead of just filing briefs and hoping the court will do the right thing.

 

[geekWithA.45]

The Bill of Rights was a condition of ratification for the original 13 states, and a condition of joining the union for all the rest.

Unilaterally altering the BoR ~absolutely~ invites scrutiny of overal durability and validity of the rest of the Constitution, and quite rightly so.


If Heller comes back collective, my official position will be that "All Bets Are Off".

No, I won't go running into the street shouting "Revolution!" but I sure as hell will be taking affirmative actions to ensure my current and future Liberty.

 

[MiddleAgedKen]

Montana and Wyoming are looking good to me, although I know my wife couldn't abide the weather and I can't bring myself to do it to her.

I suspect that it won't come to actual secession, although I do think that some state-level equivalent of civil disobedience might be in the cards. The feds will simply start to find it difficult to accomplish anything in Montana...people they need to talk to in the state lose their e-mail access (darndest thing), paperwork keeps getting lost, that sort of thing.

 

[freddd]

Evidently Texas didn't have the right to secede or they would have been allowed to in 1861. I cheer Montana, and hope that Heller goes the way it should so there's no issue, but if it doesn't, I don't see this issue going smoothly. States' rights is a dead concept, ladies and gentlemen.

 

[rocinante]

I think Calhoun got South Carolina to the point of secession long before the Civil War but they lost fervor when Andrew Jackson made it plain he would squash the secession with the military.

Is the Union really a roach motel, once you go in you can never come out? I don't think constitutionally that question has really been decided adequately. Bottom line the only time it was put to a real test it was decided by the oldest law predating civilization. Might makes right.

I applaud Montana but this is just a bunch of theatrics but don't discount play acting in the realm of politics.

 

[MAKster]

While it's fun to speculate about such scenarios, there is a less than zero chance that Montana will secede from the United States. In Texas v. White, the Supreme Court ruled that the U.S. Constitution did not permit states to secede from the U.S. and all acts by state legislatures in an attempt to secede were absolutely null. In order for a state to be created, Congress must pass an enabling act which authorizes the people of a territory to frame a constitution and lays out the requirements that must be met prior to consideration for statehood. Prior to Montana becoming a state, it was a territory created by Congress and under the total control of the U.S. Government. It was not a sovereign nation signing a treaty with the United States as equals. The only way for Montana to secede would be if they raised an army and went to war.

 

[AntiqueCollector]

Evidently Texas didn't have the right to secede or they would have been allowed to in 1861.

The feds have often infringed upon rights. Doesn't mean those rights are not still rights though.

 

[lance22]

Before we wax too nostalgic about Montana we should recall that it was a Montana Senator who tipped the scales for the original AWB. He voted against the clear will of his constituency because "the people deserve a judgement, not an echo" ... in other words as a ruler he needed to do what was 'best' for the people as the people are just ignorant.

Even in Montana - there are tried n' true devotees to the cult of state, but it is good to know that there are many who are mindful of what this country is intended to be.

 

[TexasRifleman]

Evidently Texas didn't have the right to secede or they would have been allowed to in 1861

Correct. Texas does not have any right to secede documented in the annexation paperwork.

What Texas DOES have oddly enough is the right to split into 5 smaller states if we want.

I'd be OK with Dallas and Austin leaving Texas.........they are more trouble than they are worth.

 

[Henry Bowman]

Nothing to fear. SCOTUS will find it to be an individual right...subject to reasonable restrictions. The devil is in defining "reasonable."

 

[freddd]

Antique, you are completely correct and I didn't phrase that well. What I should have said was "they didn't from the feds prospective have the freedom to secede".

That said, am I the only one scared by the fact that a state can freely join "the union", but should the people decide to remove themselves from that same union they will be subject to military invasion? Something about that bothers me.

 

[Tribal]

I think MiddleAgedKen is on the right track: we won't see actual secession, but statewide civil disobedience is possible. The list of things that could be done is limited only by your imagination.

It's also possible that the legislature could come up with an amendment explicitly stating that firearm ownership is an individual right that shall not be infringed (the 11th Amendment was a similar response to a Supreme Court ruling the states didn't like).

 

[RP88]

the idea of 'reasonable' to a politician or to the government will only be guns good for defending yourself against crazy people and not defending yourself from the military or police. Thats the problem: we all know that they'll say that we CAN own guns, but will they say that we CAN own ANY KIND of gun? Of course not. thats what the whole argument is about in the first place: not against guns, but against guns that can stand up to military and law enforcement, or can cause massacres by their rationale (semi-autos, military-style, armor-defeating, etc.).

with that said, good for Montana. Hopefully others take it up as well not just for the ruling, but against anything thing else unreasonable the gov. or SCOTUS try to do.

 

[Cosmoline]

They'd take notice if we cut off the pipeline, that's for sure. But I think we're getting ahead of ourselves.

 

[blacksheep]

God i love Montana!!!!!