MONTANA SHOOTING SPORTS ASSOCIATION
2022 JUDICIAL CANDIDATE QUESTIONNAIRE
Please check the response that best describes your position on
each issue, or explain further if you wish, including on the last
page or separate page(s).
1. RKBA standard of review. In his majority
Opinion for SCOTUS 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 the right reserved is a fundamental right, and
because of that an interest-balancing approach or "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 to the U.S. Constitution and Article II, Section
12 of the Montana Constitution, respectively "shall not be
infringed" and "shall not be called into question." Do
you agree that these qualifying clauses should be looked to in
determining the appropriate 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 restraints on government curtailment of the RKBA
found in the Second Amendment and in Article II, Section 12,
respectively "shall not be infringed" and "shall not be called
into question," are 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 the right to
"bear" firearms outside of a person's home. Article II, Section 12
of the Montana Constitution does not clearly state that the right
reserved applies outside of a person's home. 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 and Article II, Section 12
of the Montana Constitution extend outside of a person's home?
( ) Agree
( ) Disagree
( ) Other (please explain)
4. 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 the government 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, moving a
trial, etc.), or must rely upon punishing afterwards any abuse of
rights. If prior restraint is allowed, it must be narrowly
tailored to achieve a compelling government purpose. Do
you think the concept of limiting the government's prior
restraint of a fundamental right should also apply to the
fundamental rights reserved by the Second Amendment and Article
II, Section 12?
( ) Yes
( ) No
( ) Other (please explain)
5. 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. A lot of 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, it is sometimes argued
that prior commerce jurisprudence must yield to the new argument
that the Interstate Commerce Clause, the Supremacy Clause and the
Necessary and Proper Clause were ALL amended by the Ninth and
Tenth Amendments. According to this argument, the Ninth and
Tenth Amendments actually affected and changed - amended - all
parts of the underlying Constitution, such 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 or disagree with this argument?
( ) Agree
( ) Disagree
( ) Other (please explain)
6. 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 an agent (federal courts) for one party (federal
government) to a conflict to resolve a conflict in favor of the
other party (a state) to the conflict. This may leave the
party whose agent is not deciding the outcome (a state) at a
distinct disadvantage. Do you agree or disagree with
this concern?
( ) Agree
( ) Disagree
( ) Other (please explain)
7. 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. Some argue that
this contract 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.
Others argue that the terms of this contract have 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. Which view do you agree
with?
( ) The original contract has not changed and cannot be changed
without express ratification
( ) The contract or circumstances have changed or evolved
( ) Other (please explain)
8. "Public order" laws. It has become more
common for lawmakers to enact, and jurists to uphold, laws to
enforce the "public order," often to the infringement of
individual rights. These include laws that criminalize
individual behavior, but for which there is no victim - no other
individual who is injured or deprived. In upholding this
type of law, jurists in recent times seem increasing likely to
agree that a compelling state interest exists to prohibit, mandate
or criminalize individual behavior, thereby expanding the
authority of governmental entities over the conduct of
citizens. When a conflict exists between the power of
government and the rights and prerogatives of citizens, are you
more or less likely to find that a compelling state interest
exists for agencies of government to make encroachments on the
historic rights and prerogatives of citizens?
( ) More likely
( ) Less likely
( ) Other (please explain)
9. Qualified immunity for federal employees.
It is often asserted that Montana has little authority over the
activities of federal employees in Montana. Yet, it is
generally agreed that the U.S. Constitution does not overtly give
the federal government any general police power, and that states
have retained police powers. Thus, it is also generally
agreed that federal employees are not exempt from the criminal
laws enacted and enforced by a state. The Ninth Circuit's
decision in Boundary County v. Horiuchi determined that
Boundary County, Idaho could prosecute FBI sniper Lon Horiuchi for
manslaughter for killing Vicki Weaver in the infamous Ruby Ridge
debacle despite Horiuchi's claim of qualified immunity. Do
you believe Montana may enact, and Montana courts can enforce,
laws that control the conduct of federal employees operating in
Montana?
( ) Yes
( ) No
( ) Other (please explain)
10. Defining the Montana Constitution. There
is a phrase in the Montana Constitution that has never before had
an authoritative definition. That is the phrase in Article
II, Section 12 that says that the right to keep or bear arms
"shall not be called in question." To remedy this deficit,
the Montana Legislature passed Senate
Joint Resolution 11 in 2017 to provide a definition for this
important phrase. Since this phrase has never before been
defined and now the Legislature has provided a definition, do you
believe Montana jurists should:
( ) Adhere strictly to this definition if the issue
comes before them.
( ) Take judicial notice of this definition but not
feel bound to apply it.
( ) Ignore this definition.
11. More about SJ 11.
Concerning SJ 11, if the lower courts should not apply the
definition in SJ 11 if the issue arises, do you believe the
Montana Supreme Court should:
( ) Enforce the Legislature's definition.
( ) Create a new definition.
( ) Keep out of this policy area.
The foregoing responses are actually my positions on these issues,
to the best of my knowledge and at this time.
Candidate Signature (electronic signature
accepted) Date
Printed Name
Candidate for Associate Justice of the Montana Supreme Court