New Twist in Old Argument

As we hurtle toward the Supreme Court’s hearing arguments on D.C. versus Heller next month, the amicus briefs from both sides continue to flow to the high court. There are a variety of opinions being proffered on the interpretation of the Second Amendment as an individual or collective right to keep and bear arms, and some have opened some very interesting discussion topics on boards and chat rooms across the world wide web.

Perhaps the most legally intriguing argument for the Second Amendment’s individual interpretation comes from the Secretary of State and a group of legislators from Montana. In their argument, they say the U.S. has already answered the question, saying the Second Amendment rights apply to “any person.” The basis of their argument falls long before the gun control movement in the United States.

To establish their position, they point to the contract under which Montana became a state. In the resolution offered by Congressman Denny Rehberg, Montana’s legislators caution the Supreme Court that a decision to the contrary would violate their contract with the United States. They also put forth the position that the individual rights interpretation was an “accepted part of that contract.” Interpretation to the contrary would not only violate Montana’s contract, it would fly in the face of Montana’s “customs, culture and heritage.

Says Gary Marbut, President of the Montana Shooting Sports Association, “we hope the Supreme Court will recognize and credit the contract argument, an argument unmentioned in any of the briefs submitted in the Heller case.”

The Montana contract is archived as Article I of the Montana Constitution. At 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," the group writes, "Contracts must be implemented so as to effect the intent of the parties to the contract. A collective rights decision by the court could also call into question the sanctity of contracts, considered to have been a bedrock principle of law for centuries.”

As further support of their opinion, they point to then-President Benjamin Harrison’s 1889 approval of the constitution proposal, including Montana’s specific inclusion of the right to bear arms. Other determinations, they write “offend” the contract.

That language, Montana officials say, “cannot be ‘respun’ to somehow mean a right of state government.” The National Guard, they say, wasn’t even formed until some years afterward.

They also poo-poo the idea of a “living constitution” a document with an “evolving meaning” that is changeable over time. There may be such a concept, they offer, but the idea of an evolving contract to be disregarded or revised at the whim of one party or the other is simply does not exist in law.

This latest wrinkle is one that raises interesting legal discussion – including some pretty specific legal wrangling on message boards, but it’s not the only call from legislators for action to counter a brief field by U.S. Solicitor General Paul Clement that says: "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.”

As we move toward the inevitable arguments of D.C. versus Heller before the United States Supreme Court, the importance of the foundational concept of individual ownership of firearms cannot help but be impressed upon the members of the high court. Hopefully, the recognition of that foundational belief – by our founders and antecedents – will not be neutralized by the largely emotional arguments offered by those who believe otherwise.

--Jim Shepherd