Montana: Wrong Heller Decision Would Violate Its Compact with the United States
Brian Doherty | February 20, 2008, 10:13am
An interesting wrinkle in the gun-rights controversy: Various Montana politicians have signed a resolution arguing that anything other than an individual-right interpretation of the Second Amendment (at issue in the forthcoming Supreme Court case Heller v. D.C.) would violate the compact between Montana and the U.S.
Excerpts from the resolution:
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;
............
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.........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.
A longer explanation of their "contract argument."
Neu Mejican | February 21, 2008, 12:01pm | #
Wayne,
I never claimed the 2a defines an individual right, or that it was intended to define an individual right.
I claimed that the poor choice of language in the 2nd
fails to sufficiently define the right it is attempting to protect. Your typical state constitution does a better job with the language.
Are you saying that your rights flow from government documents?
A couple of points:
I did not miss the import of the first clause. As I was discussing, it is the meaning of the phrase "keep and bear arms" that causes much modern confusion. Although the current usage of the term includes the meaning "to carry weapons" its meaning in the 18th century was commonly that involving military service.
Again, the wiki on this one is extensive (as is typical with controversial subjects).
"In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. . . . As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia."
The phrase "bear arms" is even used to mean "military service" in the Declaration of Independence.
Saul Cornell's book (see link above) provides a reasoned discussion of the controversy.
(1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly)
The right of the assembly is clearly a right of groups of people (an individual can not assemble in any meaningful sense). If that phrase is being used to support an individual interpretation of the same phrase in the 2nd, it provides weak support.
The "militia was the main point argument" (see Cornell) is that the right of the people to form a militia (to bear arms) is inherent on the citizens, and does not require the involvement of the state, can not be hindered by the state, and is not a function of the state, but of the citizenry.
This distinction carries with it the clear implication that "the people" and "the state" are not the same thing.
This is accurate. The people and the state are not the same thing. However, the people are a collection, a plural, a group. Conceptually separate from the state, but still a group.
I would say that the wording of the original draft of the 2nd indicates that it was introduced to define this right of the citizenry to form non-state militia, and the right of individuals to be free from conscription in those non-state militia. Clearly, as can be seen by the various re-writes of that original draft, there was some debate and disagreement about the issue at the time.
The result, as is often the case in group writing, was an ambiguous wording that has resulted in considerable disagreement over the years.
To claim that the controversy results from an unwillingness by those that disagree with you to just read the words of the 2nd is disingenuous at best (rhetorical hoops my ass).
There exists a controversy because the language is not clear.
Neu Mejican | February 21, 2008, 9:25pm | #
Wayne/Bob Smith,
I see.
So let me get this straight:
I claim the language is ambiguous (meaning likely to be interpreted differently by different people).
I cite:
*many people over the years have understood the meaning of the 2A in a very different way than your preferred interpretation,
*a long history of controversy over the meaning
*authorities on the subject that disagree,
*judicial rulings have varied regarding that interpretation,
*the textual history of the various revisions it went through before being adopted which seem to all include some discussion of militia (making 2A what I call "mostly about militia" and Cornell calls "a civic right")
And your refutation of the ambiguity claims consists of.
"No its not. It clearly only has one possible interpretation and it means what I say it means."
[yawn]
Bob Smith,
"A right to life in one's home being necessary to the security of a free state, murder shall be illegal".
That was poorly formed.
You would do better with this version:
"The right of the people to
keep and bear arms be free from murder in their home shall not be infringed;
a well armed and well regulated militia a living citizenry being the best security of a free country; but no person religiously scrupulous of
bearing arms watching their neighbor's back shall be compelled to
render military service confront a murderer in person.
The problem with your syntactic argument is it misses the source of the ambiguity-the semantics of key phrases in the original text.
"keep and bear arms" can mean either a) carry arms, or b) fight as part of a militia. The fact that the second clause is all about militia helps to motivate interpretation b...some will disagree, of course, in support of my claim.
The 2nd as passed:
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.
Has, of course, a different syntactic structure.
It could be considered equivalent grammatically to "Because a well regulated militia is necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."
Again, this seems to be primarily about the importance of a militia. It does not seem to be about your right to have a gun to defend yourself from a mugger.
"The people," fwiw, is not ambiguous, as TrickyVic points out...it refers to the collective also referred to as the citizenry...it is an inclusive term.
But the "right to assembly" and the "right to form militia" seem very parallel to me in how they are phrased and conceptualized. It is the right of citizens to get together to do things...something that can only occur when there is more than one person...a collective if you will.
Ed | February 22, 2008, 12:03am | #
The wording of the 2nd amendment "keep and bear arms" does indeed give the citizen the right to own and use an arm if needed. The term "bear" means "to exert influence or force" or from the middle English, of which much of the language of the time period was based, "bring forth".
James Madison was responsible for proposing the Second Amendment and was one of three authors of the Federalist Papers, a group of essays published in newspapers to explain and lobby for ratification of the Constitution.
In Federalist Paper 46, James Madison argued that a standing federal army could not be capable of conducting a coup to take over the nation. He estimated that based on the country's population at the time, a federal standing army could not field more than 25,000 - 30,000 men. He wrote:
Quote:
"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."
The above means that not only was the 2nd amendment created to assure that the citizenry would be armed if called upon as a militia and to provide personal protection which, was a given in those times, the citizens needed to be armed so they could rise against the government if the government got out of hand.
Thomas Jefferson, the author of The Declaration of Independence wrote:
Quote:
To William Stephens Smith, 1787
"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
Quote:
To Peter Carr, 1785
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks."
Quote:
To John Cartwright, 1824
"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent..., or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press."
Quote:
"No free man shall ever be debarred the use of arms." Thomas Jefferson, Proposed Virginia Constitution (1776).
Quote:
"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime."--Cesare Beccaria, quoted by Thomas Jefferson
Some further quotes that support the 2nd amendment:
Quote:
"A militia when properly formed are in fact the people themselves and include all men capable of bearing arms .To preserve liberty it is essential that the whole body of people always possess arms . . . " Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788).
Quote:
"I ask, sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." George Mason, during Virginia's Convention to Ratify the Constitution (1788).
Quote:
"THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY....Who are the militia? are they not ourselves?...Congress have no power to disarm the militia....Their swords, and every other terrible implement of the soldier, are the birth right of an American. The unlimited power of the sword is not in the hands of the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. --- Tench Coxe Pennsylvania Gazette February 20,1788
Quote:
"Arms in the hands of citizens [may] be used at individual discretion...in private self-defense..." (John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788))
The quotes above are just a sampling of the thinking of the men that were our founding fathers. Their thoughts and position on the ownership and use of arms is clear.
Neu Mejican | February 22, 2008, 10:29am | #
Wayne,
I recognize that the author of the article you cite draws a conclusion that agrees with your preferred interpretation.
However, I am not convinced that he makes a convincing case that the language is unambiguous (he actually makes much of the fact that the language is ambiguous to modern readers and attempt to explain why their is controversy over the meaning).
Read the Cornell book.
He knows as much about the issue as Reynolds and comes to a different conclusion.
This is why, of course, appeals to authority are unconvincing. One side can always find an expert that agrees with their point of view.
I will, of course, reiterate, since you didn't seem to get it any of the other times I stated it...I essentially agree with the Standard Model, which says that the 2nd is primarily about militia. I am unconvinced, however, that self-defense was on the minds of the framers as they debated the issue. They had just gone through a struggle to overthrow tyranny. I think they were concentrating on the value of a militia for protecting against tyranny.
The evidence that they all thought you have a right to arm yourself for self-defense is orthogonal to the 2nd (it is covered in the 9th, however). I think the proper framing of the 2nd is an specification/extension of the right to assembly.
What good is it to say that the people can gather to protest their government, if the government can infringe their right to assemble as a militia to oppose tyranny?
So no Wayne, the 2nd doesn't mean what you think it means. You are wrong.
=/;^p
Frank Zappa | February 23, 2008, 5:00pm | #
I might be movin' to Montana soon
Just to raise me up a crop of Dental Floss Raisin' it up
Waxen it down
In a little white box
I can sell uptown
By myself I wouldn't
Have no boss,
But I'd be raisin' my lonely Dental Floss
Raisin' my lonely Dental Floss
Well I just might grow me some bees
But I'd leave the sweet stuff
For somebody else...
but then, on the other hand
I'd Keep the wax N' melt it down
Pluck some Floss N' swish it aroun'
I'd have me a crop
An' it'd be on top
(that's why I'M movin' to Montana)
Movin' to Montana soon
Gonna be a Dental Floss tycoon
(yes I am)
Movin' to Montana soon
Gonna be a mennil-toss flykune
I'm pluckin' the ol' Dennil Floss
That's growin' on the prairie
Pluckin' the floss!
I plucked all day an' all nite an' all Afternoon...
I'm ridin' a small tiny hoss
(His name is MIGHTY LITTLE)
He's a good hoss
Even though He's a bit dinky to strap a big saddle or
Blanket on anyway
He's a bit dinky to strap a big saddle or
Blanket on anyway
Any way I'm pluckin' the ol' Dennil Floss
Even if you think it is a little silly, folks
I don't care if you think it's silly, folks
I don't care if you think it's silly, folks
I'm gonna find me a horse
Just about this big
An' ride him all along the border line
With a Pair of heavy-duty
Zircon-encrusted tweezers in my hand
Every other wrangler would say
I was mighty grand
By myself I wouldn't
Have no boss
But I'd be raisin' my lonely Dental Floss
Raisin' my lonely Dental Floss
Raisin' my lonely Dental Floss
Well I might Ride along the border
With my tweezers gleamin'
In the moon-lighty night
And then I'd Get a cuppa cawfee
N' give my foot a push...
Just me 'n the pymgy pony
Over the Dennil Floss Bush
N' then I might just Jumb back on
An' ride Like a cowboy
Into the dawn to Montana
Movin' to Montana soon
(Yippy-Ty-O-Ty-Ay)
Movin' to Montana soon
Justin Vorwald | February 28, 2008, 3:40pm | #
As a law student, I have a few of problems with this argument.
First, I understand Montana is construing their acceptance into the Union as a contract. My knee jerk reaction to this proposition is that it doesn’t hold water. Based on my readings of Calhoun, who advanced nullification prior to the Civil War, and the response it received, the admission of a state into the union does not constitute a contract. It especially does not avail contract remedies to the states when there is a conflict between the understanding of the Constitution and state constitutions. For example, a case I read for my Property II class today had a conflict between CA’s constitution and the United States constitution. In this case, just as in all other cases, the United States constitution won due to the Supremacy Clause. If you then say that the understanding of the constitution the court offered was invalid because it does not agree with what the old understanding was, then I direct you to Cooper v. Aaron, in which the Supreme Court stated that whatever it says the Constitution is, it is. This has been generally accepted despite the lack of Constitutional language giving the court this Judicial Supremacy or even that of Judicial Review.
Secondly, if it is a contract, they are not always taken to mean exactly what was intended by parties at the time of the agreement. I would agree that, generally speaking, the subjective intent of the parties to create a contract with this specific provision is important when determining what that term means. However, there is an equally valid form of contract interpretation (one that has gained general acceptance as contract law has developed in the United States) that applies a reasonable person standard. The same conclusion can be drawn under either paradigm. It is important to note though that the reasonable person standard does provide more leeway for a different understanding of the "Compact".
Third, as to the ‘living document’ argument that the author of the linked essay dismissed with no evidence, this methodology warrants serious consideration. I personally don’t care for it, but that does not mean it is not a valid form of constitutional interpretation.
I will leave my complaints at that, although there are several formal and informal logical fallacies committed by the author. I hope this was helpful.
Ed | February 28, 2008, 6:55pm | #
For those that think the Jefferson quotes that I posted are fabricated then check these. Most have been verified.
What the Framers said about our Second Amendment Rights to Keep and Bear Arms
* "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
* "Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
-- Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution
* "The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188
* If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28
* "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)
* "[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46
* "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
--John Adams, A Defense of the Constitutions of the United States 475 (1787-1788)
* "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
--Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
* "Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
--Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
* "Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
--Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
* "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356
* "No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950]
* "The right of the people to keep and bear ... arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country ..."
-- James Madison, I Annals of Congress 434, June 8, 1789
* "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
-- Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789
* " ... to disarm the people - that was the best and most effectual way to enslave them."
-- George Mason, 3 Elliot, Debates at 380
* " ... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights ..."
-- Alexander Hamilton speaking of standing armies in Federalist 29
* "Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-- Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836
* "The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry, Elliot, p.3:386
* "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone ..."
-- Patrick Henry, Elliot p. 3:50-53, in Virginia Ratifying Convention demanding a guarantee of the right to bear arms
* "The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zacharia Johnson, delegate to Virginia Ratifying Convention, Elliot, 3:645-6
* "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959
* "The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation of power by rulers. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally ... enable the people to resist and triumph over them."
-- Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, p. 3:746-7, 1833
* " ... most attractive to Americans, the possession of arms is the distinction between a freeman and a slave, it being the ultimate means by which freedom was to be preserved."
-- James Burgh, 18th century English Libertarian writer, Shalhope, The Ideological Origins of the Second Amendment, p.604
* "The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."
-- Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]
* "And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... "
--Samuel Adams
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