MONTANA SHOOTING SPORTS ASSOCIATION
2014 JUDICIAL CANDIDATE QUESTIONNAIRE
Please check the response that best describes your position on
each issue, or explain further if you wish.
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 the right
reserved 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 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 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
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 firearms outside of a
person's home, the right to "bear" arms. The Montana
Constitution's Article II, Section 12 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 extend outside of a person's home?
( ) Agree
( ) Disagree
( ) Other (please explain)
4. University system and
the RKBA. The Montana Constitution gives the Board
of Regents "full power, responsibility, and authority to
supervise, coordinate, manage and control the Montana university
system," yet the Constitution fails to give the Regents any
authority to suspend, amend or abrogate the fundamental rights of
persons on U.-system campuses. The Montana Supreme Court has
said that the primary effect of reserved, fundamental rights is to
inhibit government actors. U.-system managers are clearly
government employees because the U.-system is clearly a function
of government. The Montana Constitution says that the right
of "any person" to bear arms in defense of themselves or their
homes "shall not be called in question." Yet the Regents do
more than "question" this right by asserting rules making it
impermissible to keep or bear arms on a U.-system campus. Do
you believe that the current scheme of effective prohibition of
firearms on campuses by the Regents and campus managers is
consistent with the right the people have reserved to themselves
to keep and bear arms in the Montana Constitution?
( ) Yes
( ) No
( ) 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 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
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)
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. 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 recently 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 - that the
Ninth and Tenth 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. About this latter argument, 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 to 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.
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. 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. 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?
( ) Agree
( ) The contract or circumstances have changed
( ) Other
9. "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, to
enhance 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
10. 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
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