Right to Bear Arms in Montana

Concepts within the Montana Constitution relating to the right to bear arms
by Gary Marbut © 2008
(permission to reproduce granted with attribution)

We tend to think of the right to bear arms in Montana as being expressed solely by Article II, Section 12, but there are other parts of the Montana Constitution which support this important right.

The right to bear arms itself.

Certainly, the people have carefully and deliberately reserved to themselves right of "any person" to bear arms in Article II, Section 12 of the Montana Constitution.

    "Section 12. Right to bear arms. The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons."

This is one of the most clearly-articulated reservations of the right to bear arms included in any constitution. There is no question whatsoever that it reserves an individual right, since it speaks of the right of "any person." There is no question but what it applies to self defense since it applies "in defense of his own home, person, and property." There is no question that it is a fundamental right since it is located in the Declaration of Rights. Finally, the language of this reserved right has a pristine genealogy since the wording was exactly the same in the Montana Territorial Constitution of 1884, the Montana Constitution as adopted upon statehood (and approved by the other states by their agent, Congress) in 1889, and as reauthorized by adoption of the revised Montana Constitution in 1972.

For whom are rights reserved?

It is beyond question that the various reservations of rights in the Constitution are rights the people have reserved from interference by government actors.

It is worth noting that a state government, such as that of the State of Montana, has no political reality until created. It is created by the sovereign people within its geographical boundaries (Art. II, Sec. 1). Each of these citizens surrender a measure of their personal sovereignty in order to empower state government to do for them in common those things that the people cannot individually do for themselves, or individually do well or effectively for themselves.

The extent to which the creators of state government, its citizens, surrender power to the state is far from an unlimited grant of power to the state, a concept essential to our constitutional form of government. In fact, the limits of the grant of power from individuals to the state are significant and thoroughly articulated in the Declaration of Rights in the Montana Constitution. In the Declaration of Rights, as a part of the limited grant of power to the state, the people have essentially declared "In all of these listed respects, we specifically withhold power for the state, local governments, and their employees to operate."

So, what else does the Constitution say that may impact or effect the clearly-articulated right to bear arms?

Inalienable rights.

    "Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities."

Before discussing this reservation of right by the people of Montana, what does the word "inalienable" mean? Inalienable means inseparable. It means that not only may something not be taken away from a person, it means that a person cannot even sell it or give it away!

For example, consider the right to be a free person as an inalienable right. Not only do the people of Montana forbid the state to enslave people, but the inalienability of the right of freedom means that a person could not sell themself into slavery.

Although the inalienability of the right to freedom is among the strongest principles of our system of constitutional government, even this may be argued to have exceptions, such as the right to contract. A person may contract for debt and thereby obligate himself to work to repay the debt, although debts are usually collateralized in some way as security. A person may commit himself to a time of service obligation for place and activity, such as enlistment in the military, with severe penalty for violation of this contract. However, the exceptions for inalienability of freedom are relatively rare and constrained, especially in the context of any grant of authority to the state, or prohibition thereof.

With this background of understanding inalienability of rights, what does Article II, Section 3 say about the right to bear arms?

"All persons are born free …" In the Dred Scott decision (Scott v. Stanford), Chief Justice Roger Taney examined the differences between a free man and a slave. One notable difference, Taney explained, is that a slave is not allowed to possess arms. The possession of arms is therefore an essential attribute of a free person. This is perfectly understandable since slaves are usually not slaves by choice, must be held in their servitude by force. Allowing a slave to possess the means to counter that force would defeat the power of the slave owner or any person holding another in bondage.

Other inalienable rights we have secured from government interference in Article II Section 3 affect and support our right to bear arms. These include "… the rights of … defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety … in all lawful ways."

"Defending their lives and liberties" is an obvious corollary to the right to bear arms in Article II, Section 12, reinforcing that right by separate statement. This applies to people defending their lives from evildoers threatening bodily injury, defending their liberties from those who would constrain their liberties (historically, persons acting in the name of "government" of some sort), and also people defending the system that protects their liberties.

"Acquiring, possessing and protecting property" certainly will include firearms, both because firearms are property to be protected, and because firearms allow a person to deploy a level of force that may be necessary to protect property from others who would use force to take it.

"Seeking their safety" is another interesting concept. What makes a person unsafe, for which one might need to seek safety? Safety implies freedom from bodily injury, the security of freedom from want or need, and the safety of a system that protects the rights of individuals. Some potential for bodily injury may not be defended against with a firearm, such as a fall from a high place, a water accident, or injury from violent weather. However, bodily injury to a person done by another person or a wild animal is not at all uncommon, and being able to defend oneself with a firearm certainly can generate safety. Said differently, under some circumstances it may be necessary for a person to be armed to be safe. Concerning security, those who have invested time, skill and effort to provide for future want or need have amassed some amount of wealth. Where there is wealth, there will always be others willing to take that wealth by force. This requires the possessor of wealth to be prepared to defend his wealth with sufficient force to protect that wealth, security and safety. Finally, since safety may depend on effective rules and community restraints to protect liberty, the bearing of arms can be necessary to defend that system of rules that guarantees safety by guaranteeing and defending the liberty of the individual.

"In all lawful ways" implies that the state (Legislature) may make some rules to define how these rights may be implemented and enjoyed. However, it does not permit abrogation of these rights without constitutional amendment. It does not permit the state to make rules that would ignore or violate these rights. The Legislature cannot, by law, erase rights from the Constitution. Nor can the judiciary or executive. That may be done only by a vote of the people.

What about the important sentence, "In enjoying these rights, all persons recognize corresponding responsibilities"? Left unsaid here is what these "corresponding responsibilities" may be. And, is "recognize" any sort of mandate?

First, "corresponding responsibilities." Certainly it is a commonly-held principle in a society of free and among sovereign people that it is improper for one person to injure another, or to damage the property of another. It is said, for example, that your right to swing your fist ends at my nose. So, one of the unspecified "corresponding responsibilities" will certainly be to not exercise one's rights in such a way as to injure another person or damage his property.

What other responsibilities may there be in a free society to which each member must attend? There must be a general civic responsibility to uphold and defend the system agreed upon by all. In a society of free people, liberty is enhanced by the rules of conduct devised to ensure liberty. The most important of those rules are the ones protecting the rights of the individual. So, a member who benefits from those rules also has a "corresponding responsibility" to both comply with and defend those rules. This will necessarily include a vigorous defense of the rights the people have reserved to themselves in the event that any of those rights are encroached upon by persons prohibited such encroachment. These persons may include individual government actors, or secondary rule makers such as persons acting in the legislative, executive or judicial branches of government.

The last "corresponding responsibility" discussed in the Constitutional Convention that generated this provision is a responsibility for every person to acknowledge and allow that every other person also must be admitted to have and allowed to exercise the rights reserved to all under the Constitution.

Are there other "corresponding responsibilities" that are universal? Probably not. Is there any implied responsibility that it is necessary to keep government actors happy and within their personal or collective comfort zones? No. What about government employees who are uncomfortable with free people freely exercising the rights they have reserved to themselves? Is there any responsibility for citizens to ratchet down their exercise of freedom in order to provide comfort to government employees uncomfortable with free people exercising constitutional rights? No. Is there any responsibility to scale back rights' exercise to better allow government employees to do their jobs? No. Is there any responsibility to reduce rights' claim to allow government to deliver services more efficiently or for less money? No.

Does "recognize" command or imply any sort of mandate upon conduct or how rights are exercised? Not according to the usual and plain meaning of the word. Generally, recognize is used as, "to be aware of" or "to be informed about." It can have stronger usage such as "to admit," "to recognize the validity of an argument," or even "to recognize a property title." It is said that this stronger usage of "admit" was discussed in the Constitutional Convention in the context of each individual citizen acknowledging that every other individual must be allowed to exercise all reserved rights. It was not intended that this sentence allow any rights to be weakened with interference by government actors.

Individual dignity.

    "Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.     Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."

The essential language of this reservation relating to the right to bear arms is: "Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of … political … ideas."

Certainly, all of those concepts expressed in the Montana Constitution are political concepts, by very definition. The Constitution is entirely about political ideas. Included among those, of course, is the political idea of the right to bear arms.

"Discriminate against" means not only to treat one person differently than another, but also to be biased against one person or one class of people for any reason. Therefore, a person who is told that he or she may not exercise a particular constitutional right, because that person is exercising the constitutional right at issue (political idea), must violate this section of the Constitution. Thus, a person who is exercising his or her right to bear arms may not be disarmed simply because the person is armed, for such action would violate Section 4, especially if done by a government actor. (Comment: This allows that a person could be disarmed for a different reason than just being armed, such as if the person were actively threatening others, or if the person were in a prison environment where a hostile prisoner could get the person's firearm.)

Further, individual dignity and any form of bondage are incompatible to the degree of their conflict. Absolute bondage is absolutely insulting to individual dignity. Even partial bondage is still an affront to individual dignity. As Chief Justice Taney said in Dred Scott, a slave is not allowed to possess arms. Possession of arms is a badge of freedom. The primary purpose of the right to bear arms is so that a person may defend the sanctity of the person - that a person may, if necessary, use force to resist another who would use force to take the person's liberty or property. A person disarmed is robbed of his dignity because his ability to resist loss of his liberty or property is diminished or eliminated - he may be actually or partially enslaved, injured or killed by another without fear of effective resistance.

Privacy.

    "Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."

Most definitions of privacy include the right to be left alone. Generally, this means to be left alone by government actors. The right to privacy in Montana is a fundamental right, and one that by declaration requires a "compelling state interest" to override. Further, the right to privacy is a direct bar to State action. St. v. Long, 216 M 65, 700 P2d 153, 42 St. Rep. 643 (1985).

Whether or not a person possesses firearms, and what firearms a person owns, are decidedly private matters. Private means limited to oneself or any trusted, self-selected others. For example, to be required to provide government agents with a list of what firearms one owns would be as much a violation of privacy as to require a person to provide a list of what books one has read, what periodicals a person receives, or whom in a community are one's trusted acquaintances. None of these would be consistent with being left alone.

Conclusion

The sanctity of the individual is central to the concepts expressed in the Montana Constitution. Important among those concepts is the reservation of the right to bear arms at Article II, Section 12. However, support for this important right is not restricted to Section 12, but is found in many other places in the Constitution as well.