2020 CANDIDATE QUESTIONNAIRE United States Senate
(MUST be returned by 5PM, March 27, 2020 (Received here)
for any candidate with a Primary challenge)
1. RKBA standard of review. In his majority
Opinion for the USSC in D.C. v. Heller, Justice Scalia
settled that the Second Amendment reserves and secures an individual
right. In that Opinion, Justice Scalia also declared that this
right the people have reserved to themselves is a fundamental right,
and because of that a rational basis will no longer suffice as a
standard of review for governmental curtailment of this right.
Scalia left open what standard should apply. Some argue that
the proper standard of review for the right to keep and bear arms
(RKBA) is contained within the Second Amendment itself, "shall not
be infringed." Do you agree that this qualifying clause should
be looked to in determining an appropriate threshold, a judicial
standard of review for government curtailment of this fundamental
right?
( ) Agree
( ) Disagree
( ) Other (please explain)
2. Strength of RKBA prohibition asserted. Some
argue that the restraint on government curtailment of the RKBA found
in the Second Amendment's "shall not be infringed" (as with the
"shall not be called in question" in the Montana Constitution) is
the strongest language of prohibition the drafters could conceive
and use while still maintaining decorum and appropriate phraseology
of constitutional language. Do you:
( ) Agree
( ) Disagree
( ) Other (please explain)
3. RKBA outside one's home. D.C. v. Heller
held that a person has a fundamental right to keep a firearm in a
person's home, but did not address issues about firearms outside of
a person's home, that is, the right to "bear" arms. However, a
U.S. district court judge in Maryland recently addressed this in Woollard
v. Sheridan when he said, "In addition to self-defense, the
right was also understood to allow for militia membership and
hunting. See [Heller]. To secure these rights, the Second
Amendment‘s protections must extend beyond the home: neither hunting
nor militia training is a household activity, and ―'self-defense has
to take place wherever [a] person happens to be.' [Masciandaro]"
Do you agree that the rights reserved by the Second Amendment extend
outside of a person's home?
( ) Agree
( ) Disagree
( ) Other (please explain)
4. Gun laws generally. It is said that U.S. has
among the least restrictive gun laws in the World. Do you
believe U.S. gun laws:
( ) Are a lot too lenient and few and need to be seriously
strengthened.
( ) Are just a bit too loose and need some tweaking.
( ) Are just about right and ought to be left alone.
( ) Are still too restrictive and should be relaxed.
( ) Other (please explain)
5. Prior restraint. Prior restraint describes
both a governmental action, and a doctrine that has evolved
concerning First Amendment intrusions by governmental entities. In
short, the doctrine holds that government entities may not prevent
in advance the exercise of a constitutionally-reserved right, but
before resorting to any final course of prior restraint (with narrow
exceptions) a governmental entity must either avail itself of all
alternate remedies (e.g., sequestering a jury), or must rely upon
punishing afterwards any abuse of rights. If prior restraint
is allowed at all, it must be narrowly tailored to achieve a
compelling government purpose. Do you think the concept of
limiting prior restraint of a fundamental right should also apply to
the fundamental rights reserved under the Second Amendment?
( ) Yes
( ) No
( ) Other (please explain)
6. Constitutional conflict resolution. There is
an ancient principle of law that if there is a conflict between two
provisions of a co-equal body of law, the most recently enacted must
be given deference as the most recent expression of the enacting
authority. Without this principle, no law, once enacted, could
be amended or even repealed. Many alleged federal intrusions
into the rights of states and of people of the states are done under
the assumed authority of the Interstate Commerce Clause, buttressed
by the Supremacy Clause and the Necessary and Proper Clause.
However, the Interstate Commerce Clause, the Supremacy clause and
the Necessary and Proper Clause were ALL amended by the Ninth and
Tenth Amendments - the Ninth and Tenth Amendments actually affected
and changed - amended - all parts of the underlying Constitution,
and that congressional power asserted under the Interstate Commerce
Clause must fail if that power is in conflict with either the Ninth
or Tenth amendment. Do you:
( ) Agree
( ) Disagree
( ) Other (please explain)
7. Remedies for federal/state conflicts. When
there are conflicts between what a state wishes to do and what the
federal government wishes to impose upon a state, there are a
variety of remedies available. A state, for example, may pass
a resolution protesting against a federal mandate or
incursion. Or, a state may ask its congressional delegation to
introduce and enact legislation to address or moderate the
conflict. One commonly-understood remedy is for a state to sue
the federal government in federal court, asking that the judicial
branch of the federal government restrain the executive and
legislative branches of the federal government. While that may
sometimes be a fruitful remedy, some observers express concern that
lawsuits in federal court are inadequate as an ultimate remedy for
federal/state conflicts, because that remedy depends upon a subset
(federal courts) of one party (federal government) to a conflict to
resolve a conflict with the other party (a state) to the
conflict. This may leave the party who's subset is not
deciding the outcome (a state) at a distinct disadvantage.
About this concern, do you:
( ) Agree
( ) Disagree
( ) Other (please explain)
8. Contract for statehood - effect. Article I of
the Montana Constitution is the Compact with the United
States. That Compact is a contract entered into by and between
Montana and the other states in 1889, wherein Congress was acting as
the agent for the other states. This contract declares that it
is not subject to amendment without such change being ratified by
the parties to the contract, and that Montana and its people are
also guaranteed by contract a view of the Montana and U.S.
Constitutions as they were understood and accepted in 1889, at the
time the contract was agreed upon. Do you agree with this
view, or do you view the terms of this contract as having become
changed over time, without overt ratification, but by the flow of
time, events, case law evolution, changing judicial philosophies,
and/or enactment of laws by Congress that effect changes in the
original conditions of the contract?
( ) I agree that contract law binds the U.S. and Montana to an
understanding of terms and conditions that existed when the contract
was entered into.
( ) I disagree because the contract or circumstances have
changed
( ) Other (please explain)
9. Who a U.S. Senator represents. Some Senators
believe that, once elected, a U.S. Senator should attempt to
represent all of the people and interests of the United States to
the best of his or her ability, even if that may conflict with the
interests of the people of the state from which the Senator is
elected. Others believe that they have a duty to represent the
people of the state which elected them, as far as that is possible,
even if that conflicts with the interests or needs of people of
other states. Others may believe that as U.S. Senator they can
be most effective by advancing the programs and interests of the
United States government. Do you believe a U.S. Senator
should:
( ) Represent all of the people of the U.S.
( ) Represent the people and state which elected him or her.
( ) Advance the interests of the U.S. government as best for
all
( ) Other (please explain)
10. Oath of office. A U.S. Senator, to be
seated, must take the following oath of office: "I do solemnly
swear (or affirm) that I will support and defend the Constitution of
the United States against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose of
evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter: So help me God." Do
you think this oath is:
( ) An absolute solemn and binding promise.
( ) A general guideline.
( ) Just a formality.
( ) Can't really apply because constitutional issues are too
complex.
( ) Other (please explain)
11. Voting on large (or any) bills unavailable to read.
Sometimes members of the Senate are asked to vote on large and
complex bills, often prepared by the executive branch and sometimes
running hundreds or thousands of pages, to which senators have not
had access, and which senators have not been able to read and
study. Two examples are the Patriot Act and the Affordable
Care Act. Sometimes such bills contain surprise provisions
that senators would not favor had the bill been available with
adequate time to review. About voting on bills that have not
been available to senators to study, do you believe:
( ) Sometimes the crush of business is just so great that we
must vote on bills we haven't been able to read.
( ) That is just the way things work in the Senate.
( ) A senator should always vote against a bill that has not
been available to study.
( ) Once a bill has passed a committee, it is safe to assume
it is properly vetted.
( ) Senators must trust the executive branch to prepare
workable bills.
( ) People should just wait for bills to be passed to learn
what's in them.
( ) Senators can trust their party leaders to tell them which
bills are good or bad.
( ) Other
12. Lautenberg repeal. In 1996, Congress enacted
a gun ban known as the Lautenberg Misdemeanor Gun Ban. Because
this ban covers misdemeanors, it disarms otherwise law-abiding
citizens for life – for offenses as slight as spanking a child or
grabbing a spouse’s wrist. Do you support a repeal of the
Lautenberg Misdemeanor Gun Ban?
( ) Yes
( ) No
( ) Other (please explain)
13. Judging the Constitution. It has long been
assumed by most that only the U.S. Supreme Court may determine the
powers the states have delegated to the federal government under the
Constitution. However, the principle also exists that the
servant may not judge the powers given to him by his master, or that
an agent may not judge the powers given to him by his
principal. By this standard, only the states may properly
define the powers they have delegated to the federal government when
they created it with the Constitution, and that no branch of the
federal government, including the judicial branch, may properly or
ultimately make that decision. What do you believe?
( ) By tested tradition, only the Supreme Court may rule on
the U.S. Constitution.
( ) For the states to make such decisions would just be
unworkable.
( ) The states have reserved sovereignty under the Tenth
Amendment to determine what powers they have delegated to the
federal government in the Constitution.
( ) Because the states created the Constitution and the
federal government, only the states may determine what powers they
delegated.
( ) Other (please explain)
14. "Gun free" zones. Some people believe that
if we declare some places to be "gun free zones" that criminals will
learn about and obey such policies, and that will make everyone in
such places safer. Others believe that persons with criminal
intent don't obey laws and policies and that persons with criminal
intent won't heed laws and policies creating "gun free zones."
What do you believe?
( ) Yes. Gun free zones are necessary and make everyone
safer.
( ) Maybe gun free zones will work, or at least show we are
trying to do something to curb senseless violence.
( ) I don't really understand this issue.
( ) No. Gun free zones only disarm law-abiding people,
creating safe places for criminals to operate and pools of
defenseless victims.
( ) Other (please explain)
15. Firearm and equipment bans. It is argued by
some that certain types of firearms or firearm accessories are just
too potentially dangerous to be allowed, other than for government
officials such as military or police. These arms or
accessories may allow a person to shoot more accurately over a long
distance, fire more bullets in a short period of time, conceal a
firearm from public view more easily, fire more high-velocity
bullets, fire slow bullets that don't create a sonic boom, fire
larger bullets, carry more ammunition because of smaller cartridges,
or buy and possess more firearms because they're inexpensive.
Others argue that what matters is the intent of a person using a
firearm or firearm accessory, and not the tool the person
employs. What do you believe?
( ) Certain types of firearms and accessories are just too
dangerous and must be banned for non-government users.
( ) Only government employees can be trusted to possess
certain dangerous firearms or firearm accessories.
( ) Preventing lawful people from buying such firearms or
accessories will at least limit the number of those available for
criminal misuse.
( ) We must start somewhere to curb rampant violence, and
banning certain firearms and accessories would be a good place to
start.
( ) Even on island nations banning firearms or
accessories doesn't work and it won't accomplish anything useful
here.
( ) When the people formed and empowered our
governments, they wrote into the charters that government entities
are delegated no power to enforce any such bans.
( ) Other (please explain)
16. Firearm suppressors. Permanent hearing loss
is a huge problem for firearms enthusiasts. While people who
shoot a lot habitually use some form of hearing protection, that
only helps, but does not eliminate, the problem of gradual,
incremental hearing loss from shooting. That's why some people
prefer to use firearm suppressors for shooting. Unlike the
Hollywood portrayal, a suppressor does not "silence" a
firearm. It only reduces the muzzle blast, just one component
of the sound a firearm discharge makes. A Suppressor can do
nothing to diminish the sonic boom created by a supersonic bullet
going downrange. Still, a firearm suppressor, when used in
conjunction with standard hearing protection, does reduce the sound
impact on a shooter enough to prevent gradual, permanent hearing
damage. However, the incorrect lore persists that suppressors
totally silence firearms, and that they are commonly used by
criminals. Because federal law heavily regulates suppressors,
they are very difficult and expensive to acquire. Just getting
the required paperwork assembled, mailed, and approved may take as
much as a year. Your position is:
( ) Suppressors are not needed for hunting, so current
regulation should be maintained.
( ) Suppressors are illegal to curb crime, and that's
essential.
( ) The $200 tax on each suppressor funds important government
programs.
( ) Suppressors should be treated legally like other firearm
accessories, such as scopes, slings, or bipods.
( ) Mufflers should be taken off hunting vehicles to help
catch poachers.
( ) Other (please explain)
17. "Red flag" laws. Some states have considered or
adopted a type of law that has come to be called a "red flag" law,
or in some cases a Risk Protection Order (RPO). They have also
been proposed at the federal level. Proponents allege these laws
make people safer by allowing police to take people's guns if there
is an allegation that such persons might be dangerous to themselves
or others. Despite possibly good intentions of proponents, such laws
have serious constitutional and practical problems. The
constitutional problems include lack of due process and violation of
property rights and the right to keep or bear arms. Some
practical problems include that such a policy fails its intended
goal because it leaves an allegedly dangerous person free to find
another way to commit the predicted mayhem. An RPO bill was
introduced unsuccessfully in the 2019 Legislature and will probably
be introduced again in 2021. About such a bill, would you:
( ) Support
( ) Be neutral
( ) Oppose
The foregoing responses are actually my positions on these issues,
to the best of my knowledge and at this time.