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Rob Natelson: A Federal Lawsuit Threatens Constitutional Limits on the State Legislature

Most state constitutions limit the financial powers of the state legislature. They have to: In the 19th century several states nearly went bankrupt from bad fiscal practices.

Now a federal lawsuit puts those protections in danger.

The Montana constitution requires the state to run a balanced budget. And it requires that before the state can go into debt, the proposed debt must be approved either by 2/3 of each house of the legislature or by a vote of the people.

In 2011, a group of government employees and apologists sued the State of Colorado in federal court, arguing that the Colorado constitution’s limit on the legislature’s taxing, borrowing, and spending powers violates the U.S. Constitution. The plaintiffs argue that unless a state legislature has absolute power to tax, borrow, and spend as it wishes, that state does not comply with the U.S. Constitution’s requirement that it have a “republican form of government.”

The suit is ridiculous on a number of levels, as my co-author and I show in Independence Institute issue papers here and here. Nevertheless, last year an Obama-appointed federal judge refused to dismiss it, and ruled that it could proceed.

That judgment is now on appeal. On April 19 I’ll be in Helena on behalf of MPI to discuss the suit and how it threatens both the Montana Constitution and the fiscal health of Montana and the livelihood of her citizens. Keep tuned for more details.

Rob Natelson: Protecting People Against “Gun Control”

    Like the Montana Constitution, the Colorado Constitution guarantees citizen gun rights. Nevertheless, Colorado recently became the first Rocky Mountain state to impose sweeping limits on gun and gun-magazine ownership in violation of its own basic law and of the Second Amendment of the U.S. Constitution. The action is concerning for Montana, because Rocky Mountain trends often start in Colorado.

    Attracting considerable notice has been my speech to the Pro-Second Amendment Committee of Grand Junction, Colorado, where I explained the original meaning of the Second Amendment, including the significance of the words “the right” and “infringe.” Particularly noticed has been the part where I show that you can use the same arguments the gun controllers use to restrict other constitutional rights, including free speech and sexual choice.

    I’ve reproduced part of the speech below. In it, I refer to the Colorado Constitution’s gun-rights provision. The Montana Constitution’s comparable section is Article II, Section 12: “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.”

    The speech also mentions that the Colorado Constitution defines the “militia” be include, essentially, all able-bodied men of military age. The comparable provision in the Montana Constitution is Article V, Section 13(2): “The militia forces shall consist of all able-bodied citizens of the state except those exempted by law.”

    Here are the excerpts:

My talk tonight will address three different, but related, topics.

    First, I’ll speak about the right to keep and bear arms as that right is enshrined in both the United States and Colorado Constitutions. I will be speaking about what those rights actually mean as the constitution-writers understood them, not as the courts have distorted them. I’ll discuss why those rights are there, what their scope is, and what it means to infringe them.

    Second, I’m going to speak about the politicians in the Colorado legislature who voted for bills designed to control and harass Colorado gun owners. I’ll say something about the convoluted thinking of those politicians, and what I think really motivates them.

    Finally, I will suggest a way citizens can respond to what those politicians have done.

    * * * *

    The Second Amendment of the United States Constitution states that:

    “A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

    What does this amendment really mean?

    In recent years, people offering answers to that question have often focused on the militia part of  the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”

    But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”

    Notice two things about the phrase I just read.  First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.

    Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.

    I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.

    So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.

    In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”

    On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.

    History makes it clear that the Second Amendment is designed to serve four principal purposes.

    First, it guarantees the states militia power of their own to balance the military power of the federal government;

    Second, it promotes the God-given right of personal self defense;

    Third, it enables the citizenry to repel foreign invasion; and

    Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.

    [The speech passed over the first purpose as more relevant to federal rather than state gun control, and then continued as follows:] . . . I’ll discuss here the other three principles. We begin with the right of self-defense.

    In order to enable people to defend themselves, the right to keep and bear arms has to include weapons sufficient for that purpose. Which weapons are sufficient for the purpose of self-defense will vary according to changes in technology and in society.

    Advocates of gun control tend to be the same sort of people who argue in favor of the idea of a “living Constitution.” Of course, usually when people argue for a “living Constitution,” what they really want is a dead Constitution. Specifically, they want to eliminate almost every constitutional limit on the power of federal politicians and allow those politicians to control almost everything except abortion, which they want the politicians to subsidize.

    Yet some of the people who think the Constitution should be manipulated to meet allegedly new conditions take a very different tack when applying the Second Amendment. To them, the Second Amendment, if it protects individual rights at all, should be limited to militia duty with muskets and flintlocks.

    But if the Second Amendment is based partly on a right to personal self-defense—and it is—then this narrow view is wrong.  The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons.  Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense.

    It is true that when the Second Amendment was ratified, a standard capacity 30 round magazine would not be necessary for personal self-defense. But now, when when mass murderers and terrorists have modern weapons, citizens need standard capacity magazines for self defense. They also need handguns and a range of other weapons. That is one reason the Second Amendment protects their use today.

    In addition to self-defense, the Second Amendment was adopted to enable citizens to defend against tyrants foreign and domestic. At this point it becomes helpful to turn to the Second Amendment’s preamble: The Amendment seeks a “well regulated militia.” In 18th century language, “a well regulated militia” meant a “well-trained militia.”

    The “militia” that the Second Amendment says should be well trained consists of all able bodied men. Article XVII, Section 1 of the Colorado Constitution expresses this well: It says, “The militia of the state shall consist of all able-bodied male residents of the state between the ages of eighteen and forty-five years; except, such persons as may be exempted by the laws of the United States, or of the state.” That was pretty much the American Founders’ view of the matter. Read Madison’s language in Number 46 of The Federalist Papers, and you’ll see what I mean. It is pretty much the understanding of our fathers and grandfathers when gun use and safety was commonly taught in public school.

    So according to the Second Amendment, we want all men of military age well trained in the use of weapons. And why is this? Because, as the preamble tells us, this is “necessary for the security of a free state.” By “a free state,” the Constitution means “a free country.”

    So all men of military age should be well-trained in weapons so that America survives as a free country.

    Well, what weapons? Obviously, the muskets and single-shot rifles in use when the Second Amendment was adopted are no longer sufficient to do the job. Today the Second Amendment protects a range of weapons appropriate for citizen militias resisting foreign invaders and tyrannical politicians.

    Now at this point someone favoring gun control always comes up with the line, “Well, does that mean that citizens have the right to hoard naval artillery and atomic bombs?”  And the answer is “No, the Second Amendment doesn’t encompass naval artillery or atomic bombs any more than the First Amendment includes falsely shouting ‘fire’ in a crowded theater.” The language and purposes of the Second Amendment, as well as its history, tell us what it excludes as well as what it includes.  Naval artillery and atomic bombs are not customary for personal self-defense and they never have been militia weapons used for repelling foreign invaders and domestic tyrants. In fact, the Second Amendment itself refers to the right to bear arms—that is, to carry arms—referring to weapons that normally are carried by a human being.

    Let’s focus for a minute on another purpose of the Second Amendment: protecting against domestic tyrants. We tend not to discuss this purpose much, but it might possibly have some relevance to the authoritarian types who currently dominate the Colorado legislature.

    Politicians in America right now tend to fall into either of two groups. There are those who generally favor freedom but also strongly support law enforcement. And there are those who are skeptical toward law enforcement but nevertheless seek to expand the power of government in many areas of life, and particularly in economic affairs. It’s not intuitively obvious which group should be for gun control.  You might think that those who favor economic freedom might be for gun control as a way of backing law enforcement. Or you might think those who favor more economic regulation might be against gun control because they are skeptical about law enforcement and might not want to give the police a monopoly over weapons.

    But we all know what the situation is in real life: In real life, the biggest advocates of gun control are precisely those who want to lord it over the rest of us in nearly every other aspect of life.

    Why is this? Well, reflect on the fact that the modern era of gun control began with the federal Gun Control Act of 1968. This law—if an unconstitutional act can be called a “law”—was passed in the wake of some ghastly political assassinations. I don’t think this is a coincidence. It’s reasonable to assume that those who wish to fasten more and more fetters on the productive people of American society might consider that one day they might go too far, and face physical and armed opposition.

    Indeed, just the fact that many citizens are armed may have a moderating influence on authoritarian politicians.

    The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should be should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed.

    The point was made another way by Jean Louis DeLolme, a Swiss jurist. DeLolme wrote a book on the English constitution that we know Madison read, and that was a source for other American Founders as well. In speaking of the need for an armed citizenry, DeLolme wrote:

    The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow every thing, that they never need to move; and Manlius [a Roman consul] included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebis. [Look toward war, and you shall have peace].

    The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally.

    And this brings us specifically to the majority that now controls the state legislature.

    Certainly, their political views are pretty skewed. Consider one example.

    The same politicians who voted for gun control were by and large the politicians who voted for civil unions. If you have read that bill, you know it goes far beyond civil unions: It is really a same-sex marriage bill that is labeled a civil union measure in an effort to evade the marriage rules of the Colorado Constitution.

    Now, one basis for the civil unions bill is the U.S. Supreme Court’s holdings that the right to engage in sex outside of marriage, both heterosexual and homosexual, is a federal constitutional right. The Founders would have been astonished at this for a number of reasons. But that is what the modern Supreme Court says.

    Now, ask yourself: What would be the reaction of the Colorado legislature’s majority to a proposal requiring a background check before anyone could exercise the constitutional right of non-marital sex? What would be the reaction to a bill saying that the eager couple had to pay the fee for that background check? What would be the reaction of Speaker Ferrandino or Senate President Morse to a bill stating that the eager couple was limited to “15 rounds,” so to speak?

    No doubt those legislative leaders would explode in outrage. How can you limit a constitutional right that way?” they’d sputter.

    “Well,” we might respond. “You’re doing just that with an enumerated constitutional right—the Second Amendment.”

    When they stopped sputtering, they might argue that, well, “Guns are different. Fifteen thousand Americans die from gun violence each year.”

    “Are they?” We might say. “In fact, 17,000 Americans die from AIDS each year, primarily as a result of non-marital sex—and that figure doesn’t even count other sexually-transmitted diseases. So if you can impose background checks and the like on our right to keep and bear arms, then we can impose similar restrictions on your right to bare other parts of your body.”

    The same sort of argument that applies to the unenumerated right of non-marital sex and the enumerated right to keep and bear arms also applies to the enumerated rights of freedom of speech and freedom of the press. As a child of the 1960s and 70s, I remember how free use of the First Amendment allowed protesters to pressure the federal government into some fatal mistakes in Southeast Asia—mistakes that, as widely predicted, led inevitably to a bloodbath in which 2 million people died. You see, free speech can be very dangerous.

    But this is emphatically NOT an argument for government restrictions on free speech—nor is an argument for government restrictions on non-marital sex. As the courts properly hold, the state and federal constitutions protect even rights with potentially-dangerous consequences. For example, the courts hold that the government generally may NOT impose prior restraints on a person seeking to exercise First Amendment rights.

    Yet the worthies who run the Colorado legislature think nothing of imposing burdensome prior restraints on the entirely innocent enjoyment of Second Amendment rights.

    I think we can explain the difference partly because authoritarians understand, at some level, that disarmed citizens are easier to push around than armed citizens.

[The speech concluded by suggesting responses such as a lawsuit, recall efforts, and a citizen’s initiative to overturn the law.]

Rob Natelson: The Montana Supreme Court Ballot Issue Jurisprudence: “Liberal, Sí — Conservative, No!”

Many Montanans have complained of the state’s supreme court’s leftward bias. But law is such a specialized area, that this bias can be hard to illustrate in ways non-lawyers can understand.

But everyone can see it in how the Montana justices handle ballot issues.

In Montana, the legislature and citizen petitioners enjoy the right to place initiatives and referenda on the ballot. Opponents also are free to challenge those measures in court.

The state supreme court has heard many ballot-issue cases. Some of the cases involve measures that are truly non-partisan, or can’t be classified as “liberal” or “conservative.” But many others do involve measures that can be classified that way.

 In my MPI study of the court issued late last year, I identified 18 cases in which the ballot measure under attack could be classified as either “conservative” (tending to reduce the power of government) or “liberal” (tending to increase the power of government). In 12 of the 18 cases, the measures challenged were “conservative.” In six, they were “liberal.”

The results, tabulated in a chart on page 18 of the study, show a dramatic difference in how the court treats conservative and liberal ballot issues.  Of the 12 conservative measures, the court upheld only two and struck down 10.  But of the six liberal measures, the court upheld every one! Since 1996, moreover, the pattern was perfect: every challenged conservative measure was struck down, every liberal measure upheld.

There were some particularly striking cases. For example, in one dispute the court voided a proposed conservative measure because it did not have legal force—it was an expression of popular opinion: what the court called a mere “resolution.” Yet in a later case, the court upheld a liberal initiative (I-166, which I discussed in an earlier post), although it, too, was a mere resolution.

Now, what made that pair of cases particularly perverse is that, under the law, they should have been decided precisely the opposite way. This is because the conservative measure was a proposed constitutional amendment, and the state constitution contains no rules against “resolutions” being part of the constitution. (In fact, resolutions or “recitals” are common in state and federal constitutions.) On the other hand, the liberal measure was a statutory initiative, and the state constitution (Article III, Section 4) specifically requires that statutory initiatives be genuine “laws” rather than mere expressions of opinion.

So the court struck down a conservative measure that was stronger on the law, and upheld a liberal measure that was weaker!

You can read the entire study here.

Government Transparency: A Click or Two Away

Your state and local governments are hiding things from you. It’s not a conspiracy. It’s not incompetence. It’s just inconvenient. Some things are inconvenient to tell you. Other things are inconvenient for you to know. Either way, you don’t have access to a lot of information that the Montana Constitution guarantees but that present Montana laws and technology don’t provide for. That lack of transparency means you can’t see what’s being done in your name or how your tax dollars are really being spent.

The problem isn’t with our public servants and employees. The 30,000 or so folks on our payroll are almost all conscientious professionals who want a better Montana. The problem is that as our government has increased in size and complexity, it hasn’t updated its rules or its technology to keep up with our right to know what’s being done in our names. Why does that matter? The harder it is for us to keep up the more likely we are to shrug and say things are just too complex for us to do anything about. Some folks like that. But it’s not how a participatory democracy should work. Informed citizens make informed decisions. Problem is, we simply can’t stay informed under the current setup.

Montanans need to know what the people who work for us are doing. But anymore that’s just about impossible. As budgets and agencies grow, the state’s books and rules get more and more complex. It’s one thing to see a budget. It’s quite another to see how that budget was executed: who got contracts, what was bought, how many people got hired, and how much was spent on any of those things? Article II Section 9 of Montana’s Constitution guarantees our right to know all that. But we don’t have a practical means of exercising that right. Sure, you can spend hours and hours surfing web sites from agency to agency and maybe track down some pieces of the puzzle. But you’re not likely to find information even as basic as what you have in your own checkbook.

Or you could make a written request to an agency or office asking for specific data. If you know where to ask, and if you ask for the right thing, and if they have a document that matches your request, you can even travel to their office during normal business hours to make a copy. So, assuming all those “ifs” come true the data you’re looking for might be available. But is it accessible? Is that the best we can do in the Information Age? I can find and buy a shear bolt for a Sears Craftsman 30” snow blower in ten minutes and with a half dozen mouse clicks. Why can’t I just as easily see how much was spent and who it went to for a snow plow the Department of Transportation just bought? It’s not a question of inventing something new. It’s a question of harnessing current technology in a way that makes our government more transparent and accessible. But that’s only half the problem.

Our laws are also out of date. They were written in an era when Xerox copiers and the U.S. Postal Service were about the only means of transmitting data. But now we have email, web sites, search engines, and all sorts of other tools that allow us to transfer data easily and cheaply, and in formats where people can analyze it, examine trends, make pretty charts and graphs, and a do host of other things that turn raw data into usable information. These are tools that anyone who has ever used Google or Yahoo takes for granted. Why aren’t they available to let us see what’s being done in our names and where our tax dollars are going?

Imagine tracking a dollar out of your wallet from the time it goes into government’s coffers until it’s spent: the revenue source, appropriation, agency, program, contract, recipient, and anything else that dollar touches. That’s true transparency and openness that will let people engage with their government and hold it accountable. The technology is cheap and readily available. Other states have done it. The mandate is in our Constitution. What’s missing is the political will to make it happen. Go to http://BigSkySearch.info to get more information about how to bring our state government into the 21st century. And tell your elected representatives that you want Montana’s government to be as transparent to you as you are to it.

Carl Graham

President

Montana Policy Institute

 

The Montana Policy Institute (www.mtpolicy.org) is a nonpartisan policy research center based in Bozeman.

 

For Immediate Release

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