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Montana Says Gun Rights Issue Settled Long Ago


By Pat Shannan

Montana Secretary of State Brad Johnson has warned the Supreme Court that guns are legal in his state under the compact each party agreed to when Montana joined the union in 1889.

Johnson and other Montana officials are saying the U.S. government already resolved any questions about the application of the Second Amendment by defining that “any person” has the right to keep and bear arms.

“The Montana Resolution cautions that a collective rights decision would violate the Montana contract for statehood because when that contract was entered the collective rights interpretation had not yet been invented and the individual rights view was an accepted part of the contract,” an announcement from the leaders said.

That’s the issue in a pending Supreme Court case originating in the District of Columbia (AFP, Jan. 28, 2008), where authorities have banned handguns under the claim that such a 100%-limit is “reasonable” and therefore enforceable despite the Second Amendment. Gun rights advocates have become increasingly perturbed at what bureaucrats and politicians define as “reasonable.”

The federal government’s position is outlined in a document submitted by U.S. Solicitor General Paul D. Clement. He said since “unrestricted” private ownership of guns clearly threatens the public safety, the Second Amendment can be interpreted to allow a variety of gun restrictions.

“Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the Second Amendment,” Clement wrote in the brief.

However, facts and statistics show that rather than an “unquestionable threat to public safety,” areas of unrestricted private gun ownership have always enjoyed exactly the opposite—lower crime and safer communities.

Because of the specifics of the D.C. case, the ultimate ruling is expected to address directly whether the Second Amendment includes a right for individuals nationwide to have a gun or whether local governments can approve whatever laws or ordinances they desire to restrict firearms.

Most gun advocates pass off such rhetoric as merely more government mumbo jumbo and “lawyer legalese.” Larry Pratt of Gun Owners of America is one.

“If the Supreme Court were to accept the solicitor general’s line of argument, D.C.’s categorical gun ban of virtually all self-defense firearms could well be found to be constitutional,” he said.

Pratt warned such a precedent to affirm any and all gun restrictions if they are considered by a judge to be “reasonable” would place those rights on the lowest rung of the constitutional ladder.

“In contrast to other provisions in the Bill of Rights, which can only be trumped by ‘compelling state interests,’ the Second Amendment would be relegated to an inferior position at the lowest rung of the constitutional ladder, should the Justice Department prevail,” said Pratt.

In a joint resolution from the Montana leaders, including Rep. Denny Rehberg (R), they caution that should the Supreme Court rule that Second Amendment rights apply only collectively, it would violate the contract under which Montana entered the union as a state. Nobody has suggested that such a move would be the latest cause for secession, but no one has said that it wouldn’t, either.

Gary Marbut, president of the Montana Shooting Sports Association and the author of a book on Montana gun law, said, “There was a promise made to Montana that the right to bear arms was an individual right, and what’s more, a ‘collective right’ interpretation would have been impossible because Montana had no state-run militia in the 1880s.”

Individual rights, such as those of free speech and a jury trial, are more definitive than a “collective right” decided by state or local governments.

The Montana contract is archived as Article I of the Montana Constitution. The Montana officials point out that the time the then-territory’s “Compact with the United States” was agreed to by Congress, the Montana Constitution included the “right of any person to bear arms.”

That language “simply cannot be re-spun to somehow mean a right of state government,” they said. “It could not have referred to the National Guard, which wasn’t created until years later.”

Meanwhile, U.S. Rep. Virgil Goode (R-Va.) has asked President Bush to order the Justice Department to submit a brief to the high court supporting the rights of individuals under the Second Amendment. Goode earlier wrote Bush that under the perspective being promoted in the District of Columbia, a national ban on all firearms, even hunting rifles, could be considered valid.

The Second Amendment reads, “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

See more from Pat at

(Issue # 9 &10, March 3 & 10, 2008)

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