Concepts within the Montana Constitution relating to the right to bear arms
© by Gary Marbut*, 2008
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
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. St. v. Long, 216 M 65, 700 P2d 153, 42 St.
Rep. 643 (1985).
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?
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
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 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 themselves 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 Dredd Scott decision, 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 a significant 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, and allowing a slave to
possess the means to counter that force might 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, their liberties from those
who would constrain their liberties, and also people defending the
system that protects their liberties.
"Acquiring, possessing and protecting property" certainly will include
firearms, both because firearms are property, 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, 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
restraints to protect liberty, the bearing of arms can be necessary to
defend that system of rules that guarantees safety by guaranteeing the
liberty of the individual to all.
"In all lawful ways" implies that the state (Legislature) 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.
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 not 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
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 that
protects all. In a society of free people, liberty is enhanced by
the rules of conduct devised. 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 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 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 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 weaken any rights from interference
by government actors.
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
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
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 their right to bear arms may not be disarmed simply because
they are armed, for such action would violate Section 4, especially if
done by a government actor.
Further, individual dignity and any form of bondage are incompatible to
the degree of their conflict. Absolute bondage is absolutely
insulting to individual dignity. Partial bondage is still an
affront to individual dignity. As Taney said in Dredd Scott, a
slave is not allowed to possess arms. Possession of arms is
therefore 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 life, liberty or property. A
person disarmed is robbed of his dignity because his ability to resist
loss of his liberty or property is diminished - he may be actually or
partially enslaved, injured or killed by another without fear of
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
Most definitions of privacy include that it is 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
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.
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.
**Gary Marbut is president of the Montana Shooting Sports Association,
author of the book Gun Laws of Montana, the author of many Montana laws
relating to firearms, an active self defense firearms instructor,
certified as a firearms instructor by the State of Montana, a
competitive shooter, a member of the International Association of Law
Enforcement Firearms Instructors, and has been accepted in state and
federal courts as an expert in firearm use, firearm safety and use of