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
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,
of the Montana Constitution.
"Section 12. Right to bear arms. The right of
person to keep or bear arms in defense of his own home, person,
property, or in aid of the civil power when thereto
legally summoned, shall not be called in question, but nothing
contained shall be held to permit
the carrying of concealed weapons."
This is one of the most clearly-articulated reservations of the
to bear arms included in any constitution. There is no
whatsoever that it reserves an individual right, since it speaks
right of "any person." There is no question but what it
to self defense since it applies "in defense of his own home,
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,
Montana Constitution as adopted upon statehood (and approved by
other states by their agent, Congress) in 1889, and as
adoption of the revised Montana Constitution in 1972.
For whom are rights reserved?
It is beyond question that the various reservations of rights in
Constitution are rights the people have reserved from interference
It is worth noting that a state government, such as that of the
of Montana, has no political reality until created. It is
by the sovereign people within its geographical boundaries (Art.
Sec. 1). Each of these citizens surrender a measure of their
personal sovereignty in order to empower state government to do
them in common those things that the people cannot individually do
themselves, or individually do well or effectively for themselves.
The extent to which the creators of state government, its
surrender power to the state is far from an unlimited grant of
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
the Declaration of Rights in the Montana Constitution. In
Declaration of Rights, as a part of the limited grant of power to
state, the people have essentially declared "In all of these
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?
"Section 3. Inalienable rights. All persons are
free and have certain inalienable rights. They include the right
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
their safety, health and happiness in all lawful ways. In enjoying
these rights, all persons recognize corresponding
Before discussing this reservation of right by the people of
what does the word "inalienable" mean? Inalienable means
inseparable. It means that not only may something not be
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
right. Not only do the people of Montana forbid the state to
enslave people, but the inalienability of the right of freedom
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,
this may be argued to have exceptions, such as the right to
contract. A person may contract for debt and thereby
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,
enlistment in the military, with severe penalty for violation of
contract. However, the exceptions for inalienability of
are relatively rare and constrained, especially in the context of
grant of authority to the state, or prohibition thereof.
With this background of understanding inalienability of rights,
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
slave. One notable difference, Taney explained, is that a
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
must be held in their servitude by force. Allowing a slave
possess the means to counter that force would defeat the power of
slave owner or any person holding another in bondage.
Other inalienable rights we have secured from government
in Article II Section 3 affect and support our right to bear
arms. These include "… the rights of … defending their lives
liberties, acquiring, possessing and protecting property, and
their safety … in all lawful ways."
"Defending their lives and liberties" is an obvious corollary to
right to bear arms in Article II, Section 12, reinforcing that
separate statement. This applies to people defending their
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
system that protects their liberties.
"Acquiring, possessing and protecting property" certainly will
firearms, both because firearms are property to be protected, and
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
a person unsafe, for which one might need to seek safety?
implies freedom from bodily injury, the security of freedom from
or need, and the safety of a system that protects the rights of
individuals. Some potential for bodily injury may not be
against with a firearm, such as a fall from a high place, a water
accident, or injury from violent weather. However, bodily
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
generate safety. Said differently, under some circumstances
it may be necessary for a
person to be armed to be safe. Concerning security, those
have invested time, skill and effort to provide for future want or
have amassed some amount of wealth. Where there is wealth,
will always be others willing to take that wealth by force.
requires the possessor of wealth to be prepared to defend his
with sufficient force to protect that wealth, security and
safety. Finally, since safety may depend on effective rules
restraints to protect liberty, the bearing of arms can be
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
rules to define how these rights may be implemented and
However, it does not permit abrogation of these rights without
constitutional amendment. It does not permit the state to
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
here is what these "corresponding responsibilities" may be.
is "recognize" any sort of mandate?
First, "corresponding responsibilities." Certainly it is a
commonly-held principle in a society of free and among sovereign
that it is improper for one person to injure another, or to damage
property of another. It is said, for example, that your
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
What other responsibilities may there be in a free society to
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
who benefits from those rules also has a "corresponding
to both comply with and defend those rules. This will
include a vigorous defense of the rights the people have reserved
themselves in the event that any of those rights are encroached
persons prohibited such encroachment. These persons may
individual government actors, or secondary rule makers such as
acting in the legislative, executive or judicial branches of
The last "corresponding responsibility" discussed in the
Convention that generated this provision is a responsibility for
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
Are there other "corresponding responsibilities" that are
universal? Probably not. Is there any implied
responsibility that it is necessary to keep government actors
within their personal or collective comfort zones? No.
about government employees who are uncomfortable with free people
freely exercising the rights they have reserved to
there any responsibility for citizens to ratchet down their
freedom in order to provide comfort to government employees
uncomfortable with free people exercising constitutional
No. Is there any responsibility to scale back rights'
better allow government employees to do their jobs?
there any responsibility to reduce rights' claim to allow
deliver services more efficiently or for less money? No.
Does "recognize" command or imply any sort of mandate upon conduct
how rights are exercised? Not according to the usual and
meaning of the word. Generally, recognize is used as, "to be
aware of" or "to be informed about." It can have stronger
such as "to admit," "to recognize the validity of an argument," or
"to recognize a property title." It is said that this
usage of "admit" was discussed in the Constitutional Convention in
context of each individual citizen acknowledging that every other
individual must be allowed to exercise all reserved rights.
was not intended that this sentence allow any rights to be
weakened with interference
by government actors.
"Section 4. Individual dignity. The dignity of
human being is inviolable. No person shall be denied the equal
protection of the laws. Neither the state
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
The essential language of this reservation relating to the right
bear arms is: "Neither the state nor any person, firm,
corporation, or institution shall discriminate against any person
the exercise of his civil or political rights on account of …
Certainly, all of those concepts expressed in the Montana
are political concepts, by very definition. The Constitution
entirely about political ideas. Included among those, of
is the political idea of the right to bear arms.
"Discriminate against" means not only to treat one person
than another, but also to be biased against one person or one
people for any reason. Therefore, a person who is told that
he or she
may not exercise a particular constitutional right, because
is exercising the constitutional right at issue (political idea),
violate this section of the Constitution. Thus, a person who
exercising his or her right to bear arms may not be disarmed
the person is armed, for such action would violate Section 4,
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
the degree of their conflict. Absolute bondage is absolutely
insulting to individual dignity. Even partial bondage is
affront to individual dignity. As Chief Justice Taney said
in Dred Scott, a
slave is not allowed to possess arms. Possession of arms is
badge of freedom. The primary purpose of the right to bear
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
force to take the person's liberty or property. A person
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
"Section 10. Right of privacy. The right of
individual privacy is essential to the well-being of a free
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
and one that by declaration requires a "compelling state interest"
override. Further, the right to privacy is a direct bar to
action. St. v. Long, 216 M 65, 700 P2d 153, 42 St.
Whether or not a person possesses firearms, and what firearms a
owns, are decidedly private matters. Private means limited
oneself or any trusted, self-selected others. For example,
required to provide government agents with a list of what firearms
owns would be as much a violation of privacy as to require a
provide a list of what books one has read, what periodicals a
receives, or whom in a community are one's trusted
None of these would be consistent with being left alone.
The sanctity of the individual is central to the concepts
the Montana Constitution. Important among those concepts is
reservation of the right to bear arms at Article II, Section
However, support for this important right is not restricted to
12, but is found in many other places in the Constitution as well.