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MONTANA SHOOTING SPORTS ASSOCIATION
2024 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 its recent
decision in NYSRPA v Bruen, SCOTUS declared that the old,
interest-balancing, levels of scrutiny method for reviewing Second
Amendment cases is no longer allowed. The Second Amendment,
SCOTUS said, may no longer be treated as a second-class right.
Rather, if a government action affects the right to keep and bear
arms at all, then the burden shifts to the government to demonstrate
that the text, history, and tradition of treatment would have
allowed such a restriction in 1791 when the Bill of Rights was
adopted. Do you believe that this new evaluation standard
should be used when considering the constitutionality of state laws
and government actions in Montana?
( ) 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 only 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 to the people under 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
Clause 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 subsequently-enacted 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 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 several 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 unilateral 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 State
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 regulate 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.
https://leg.mt.gov/bills/2017/billpdf/SJ0011.pdf
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.
12. Rights upon release from custody. Prosecutors
routinely demand, and some judges allow, that an
accused-but-innocent (until convicted) person be stripped of
reserved constitutional rights as a condition of release from
custody, EVEN IF abuse of the restricted right had nothing to do
with the alleged offense for which the person was in custody.
Should an accused trespasser be prohibited from trial by jury,
should an accused poacher be prohibited from political speech, and
should an embezzler be prohibited from possessing firearms?
MSSA recommends that an accused person should not be stripped of a
constitutional right as a condition of release from custody unless
abuse of that right was an element of the offense for which the
person was in custody. Are you inclined to look closely at a
prosecutor's request for release conditions to ascertain if they do
or do not relate to alleged conduct by the accused?
( ) Yes, always
( ) Yes, if I have time
( ) No, the prosecutor probably knows best
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 Judicial Office in Montana