MONTANA SHOOTING SPORTS ASSOCIATION
2020 CANDIDATE QUESTIONNAIRE
Montana Attorney General
(MUST be returned by 5PM, March 27, 2020 (Received here) for any
candidate with a Primary challenge)
1. Preemption and LR-130. Montana has a
“preemption law” at 45-8-351. M.C.A., to effectively implement
Article II, Section 12 of the Montana Constitution by prohibiting
local governments from regulating firearms. Notwithstanding
our preemption law, the City of Missoula recently attempted to
impose a type of gun control known as a “universal background
check,” to require a federal background check for most private
transfers of firearms. Ultimately, both the Attorney General
and the Montana Supreme Court held that Missoula's ordinance
violated Montana's preemption law. To forestall future
attempts such as Missoula's and clarify existing law, the
Legislature passed HB 357, which created Legislative Referendum #
130 (LR-130). This measure will be on the ballot in November
for a public vote. LR-130 is intended to strengthen Montana's
existing preemption law and to further clarify that local
governments may not regulate firearms and may not create a patchwork
of gun control across Montana. Do you:
( ) Support LR-130
( ) Oppose LR-130
( ) Take no position on LR-130
2. Government spending to influence elections outcome.
Any use of taxpayer funds to influence the outcome of elections has
generated two legal axioms about such spending:
1) That when legislative bodies budget and appropriate
taxpayer funds, it is no legitimate part of that appropriation to
influence the outcome of an election. Therefore, any spending
of taxpayer funds that has the effect of taking sides or influencing
an election outcome amounts to theft of public funds; and
2) Under the “equal stake doctrine,” both the proponents and
opponents of an issue to be publicly decided at an election have an
equal stake in any taxpayer funds used to influence public opinion
on the issue. Therefore, any spending of taxpayer funds must
be neutral (e.g., an AG's ballot statement of intent) or balanced
(e.g., the SoS Voter Information Pamphlet).
If state or local governmental entities should attempt to or
actually spend taxpayer funds to influence an election, will you
seek legal remedies to stop that abuse and will you seek to hold the
officials responsible for such misuse of public funds?
( ) Yes
( ) No
3. SJ 11. The 2017 Montana Legislature passed
Senate Joint Resolution # 11, defining for the first time ever an
important phrase used in the Montana Constitution. That phrase
declares that the right to keep or bear arms shall not be “called in
question.” Now that there is finally a definition of this critical
phrase, as expressed by the people of Montana via their elected
representatives in the Legislature, are you comfortable asserting
this definition in court as needed?
( ) Yes
( ) No
( ) It depends on the case
4. Chief law enforcement officer? There is some
dispute over what official is the "chief law enforcement officer"
(CLEO) in Montana. Past AGs have asserted that the AG is the
CLEO in Montana. Some county attorneys have claimed that they
are the CLEO in their county. Traditionally, elected sheriffs
have been considered to be the CLEO within their jurisdiction,
although some chiefs of police have claimed that they, not the
sheriff, are the CLEO within municipal boundaries. Who do you
believe is the ultimate CLEO for any location in Montana?
( ) AG
( ) County Attorney within his county
( ) Sheriff within his county
( ) Chief of police within his city
5. Ninth and Tenth Amendments. The Ninth and
Tenth Amendments to the U.S. Constitution reserve to the people and
the states all powers not overtly delegated to the federal
government in the Constitution, yet these two amendments are often
treated in legal circles as the ugly stepchildren of law and are
largely ignored. The two dominant schools of legal thought
about the Ninth and Tenth Amendments may be 1) that these two
amendments are included in the footnotes to the Constitution, but
they don't really mean much about how the Constitution is actually
implemented, or 2) any amendment actually amends and changes the
underlying Constitution, and when any conflict exists between the
amendment and other terms or authorities in the document, then
deference must be given to the amendment as the most recent
expression of the enacting authority. Do you agree more with
the first view or the second?
( ) First
( ) Second
6. "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). 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:
( ) Actively support
( ) Passively support
( ) Be neutral
( ) Passively oppose
( ) Actively oppose
7. Buffering federal actions. The federal
incidents at Waco, Texas and Ruby Ridge, Idaho, have taught us that
sometimes it is desirable for state or local authorities to moderate
the impact of federal authorities upon local citizens. As AG,
would you seek to buffer overzealous federal actions in Montana?
( ) Yes
( ) No
8. Sanctuary state. Some assert that the
Supremacy Clause of the U.S. Constitution makes all federal laws and
regulations superior to any state authority. However, the U.S.
Supreme Court has held in Printz v. US (a Montana case) that
Congress may not commandeer state and local government personnel and
resources. MSSA has proposed a law prohibiting state and local
government employees from enforcing or aiding to enforce any new
federal gun control laws, such as bans on certain firearms or
ammunition feeding devices. Do you believe such a state law
and prohibition is legally sustainable?
( ) Yes
( ) No
9. Permitless carry. Since 1991, it has not been
required for a person to have a concealed weapon permit to have a
firearm "wholly or partially covered by clothing or wearing apparel"
in 99.4% of Montana - outside of the limits of incorporated cities
or towns. Since 1991, there is no evidence that such
unpermitted people have abused this prerogative. MSSA proposes
that this condition apply now to the remaining 6/10ths of 1% of
Montana, inside city limits. Do you think this is good policy?
( ) Yes
( ) No
10. "Gun Free Zones." Mythical "gun free zones"
are only gun free for non-dangerous, law-abiding people. For
lawbreakers, "gun free zones" are government-guaranteed safety zones
where criminals may ply their mayhem without effective
interference. That's why over 90% of all mass shootings happen
in "gun free zones." MSSA proposes that people with Montana
concealed weapon permits, people who have been vetted by the local
sheriff, be exempt from all government-created "gun free zones"
except prisons, jails, courtrooms, and federal enclaves. For
this proposal, are you:
( ) In support
( ) Neutral
( ) Opposed
11. Judging the Constitution. It has long been
assumed by many that only the U.S. Supreme Court may determine the
powers the states have delegated to the federal government in 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)
12. 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 having been ratified
by the parties to the contract. Montana and its people are
also guaranteed by contract law 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)
13. 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 of a reserved
constitutional right 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 and Article II, Section 12 of the Montana Constitution?
( ) Yes
( ) No
( ) Other (please explain)
The foregoing responses are actually my positions on these issues,
to the best of my knowledge and at this time.
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accepted)
Date
Printed Name, Candidate for Attorney General of Montana