Topic: Constitutional Issues
Freedom Contingent Upon Compliance Is Not Freedom! It is imperative to understand that this country is formed solely upon the Sovereignty of the People themselves and that in that Sovereignty, they have, out of both necessity and desire, come together to form communities of governments to act both on their behalf and upon their Consent.by Republicae
(libertarian)
Sunday, April 20, 2008
It is imperative to understand that this country is formed solely upon the Sovereignty of the People themselves and that in that Sovereignty, they have, out of both necessity and desire, come together to form communities of governments to act both on their behalf and upon their Consent. This Sovereignty finds its expression, and has done so, in the governments of the Several States, which in turn, have reflected their Will in the formation of a federation of States called the United States.
The Several States, in the purist expression of the People's Sovereignty have formed, established and delegated the government federal. The Rights of the People are embedded in the Rights of the States, you cannot have one without the other, nor can you have a delegation of authority and power without such Rights, both Reserved and Delegated. It is the Delegated Trust, from the People through the medium of their Respective States to the federal government, which pronounced and delineates the Sovereignty of the People themselves.
Delegated powers must always subordinate to those Reserved by both the States and the People. The powers Reserved by the People and thereby the States, which represent them, have the complete power to Amend the federal government by Constitutional Convention with three-fourths Concurrent Majority voting in assent. This power speaks to the sole Sovereignty of the People through the medium of the States in which they resided and hold their Citizenship. The subordinate federal government is simply the reflection of the States and thereby the People.
In its formation, the federal government is simply a reflection of the compact between the States, who by Consent of the People, did ratify that compact between them. The Constitution was not formed by the federal government but the federal government by the Constitution. This Constitution was merely a compact of agreement between the Several States acting upon the Consent and Will of the People who resided in those States. As such, this compact, with its specified provisions and divisions of authority and power, was and is subject to the continued Consent and Will of the People through their respective mediums of government, the States.
There is, in the essence of primacy, no such thing as States Rights outside of the delegation of both authority and power to the Several States by the People of those States. Likewise, there is no Sovereignty in either the Several States or the federal government outside of the Delegation, in Trust, of such authorities and powers by the People themselves as expressed in the Compact between the Several States, reflected in the federal government. The Constitution was not, nor is it today, an agreement between the Several States and the federal government since the federal government has no inherent powers or authority within itself. The Constitution solely an agreement between the People, through the medium of the Several States, and themselves.
The Constitutions of the Several States preceded both the formation of the Constitution and federal government so too, do they precede it in both execution and authority. The language of the Constitution cannot be stronger in the delineation of delegated authority and power emanating from the States, by the Consent of the People themselves to the federal government. As such, this agreement, ratified between the Several States, solely upon the Consent of the People, seeks to guards the Reserved Powers of the People, thus the Several States, against the government as a whole and against all its departments, officers and any mode that might be devised which would impair such construction thereby impeding the Reserved Powers of the States, respectively, which solely reflect the Rights of the People. It was this intention, clearly enumerated, to place the Reserved Powers of the States, and thus the People, beyond the possible interference and control of the federal government of the United States.
It was also clearly stated that, in consideration of these Reserved and Delegated Powers, that the Right of the Separate Governments of the Several States was complete and contained within themselves to protect their own Powers and Authorities as Consented to by the People to represent them respectively in each of their respective States. As to the federal government, the provisions of this Compact between the States, through the Consent of the People, was to allow for the protection of those Delegated Powers to the federal government as long as the federal government, thus the majority of the States, continued adherence to the provisions agreed upon by the Constitution.
To speak to the Delegation of Powers to the federal government, the Constitutional Convention was very deliberate in both content and expression, especially in the inclusions of the 9th and 10th Amendments to the Constitution. One of the more interesting facts is that the final version of the 10th Amendment was far more expansion as it was originally proposed which was worded in a far more restrictive verse: "That each State in the Union shall respectively retain every power, jurisdiction, and right, which is not, by the Constitution, delegated to the Congress of the United States, or to the departments of the federal government."
Of course, in the Resolutions of Ratification by the Several States, the meaning of both the 9th and 10th Amendments is clearly expounded. These Resolutions express the exact nature and character of what was taking place as they Ratified the agreement between them called the Constitution of the United States. This agreement did not place any Power or Authority within the grasp of the federal government as inherent, but only as Delegated in Trust. That Trust only extended to, and was expressed by the continuation of maintenance of the provisions of that agreement; upon violation of such provisions it was expressly expounded that such violations would effectively nullify and render void the agreement itself, thereby rendering the Several States to their original form as separate governments without an agreement forming a federal government between them to reflect certain preset and limited requirements.
In these Delegate Powers, the People, through the medium of the Several States, have given or granted an agency of execution of such Delegated Powers to act on behalf of the People themselves; thus performing certain duties, restricted by Compact, that are intimately connected with the Principle Power of the People themselves. Without such agency, all ability to act upon these Delegated Powers would be nugatory therefore, such powers are delineated in a structure of government broken into various Branches, each set with particular limited powers and overlapping powers crafted to both execute and check the powers of each Branch. So too, in the creation of a multi-layered government structure, the Several States play an indispensable role in maintaining balance within the system and in the protection of their Citizens.
Now, to reiterate the scope of the Powers of the Several States and thus the People themselves who delegate such Powers to the States we need look no further, of course, than the Constitution. In support of this opinion the Constitution is of extreme clarity, it relies upon, in the first place, on the 2nd Section of the 6th Article, which provides the following: " This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land: and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." It is apparent in this clause that there is a very definite supremacy associated with the mechanics of the government of the United States except when such supremacy contradicts or infringes upon the laws or Constitutions of the Several States. This is a delineation of the various levels of Power and Authority that has been duly delegated to each stratus of government, from those of the States themselves, then to those that the federal government reflects in both application and scope of such powers and authorities thus delegated.
It is, or should be sufficient to see that such a statement is declaratory in both nature and character and that there are no powers or authorities vested in the federal government by the Constitution that extend beyond those enumerated in the Delegated Trust placed into the mechanics of the federal government as it reflects the Will of the People as expressed through their Respective States. The layers of supremacy results from the relationship that was formed between the Several States in agreement to form the federal government and within the very specified limits placed upon the federal government by the States in Convention. The reach of the federal government does not extend beyond the Delegated Trust of powers and authority, all others being Reserved to the States and to the People of the States. Beyond these enumerated and thus Delegated Powers, the Constitution is completely destitute of all authority. In other words, without the Delegation of these very limited powers by the States, acting upon the Consent of the People themselves, all execution of any power or authority by the federal government any operations outside such of Delegated powers is mere assumption and therefore illegal.
It is interesting to see just what the Delegates of the Constitution Convention rejected when they dismissed certain "articles", and it is this dismissal that speak volumes about what was and was not intended in the construction of Constitutional Order, thus the various delegation of powers to the States and the federal government. As reported by Committee, the following words were proposed and then rejected: "The acts of the legislature of the United States, made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the Several States, and of their Citizens and inhabitants; and the Judges of the Several States shall be bound thereby, in their decisions; any thing in the Constitutions or laws of the Several States to the contrary notwithstanding." As we can see, there is a very distinct difference between what was proposed and what was approved for final ratification by the Delegates to the Constitutional Convention. The above, as opposed to the prior approved version, clearly demonstrates the designation of supremacy over the mechanics of the federal government by the Constitutions and laws of the Several States.
Thus such limitations on the scope of supremacy of the federal government, in all its operations and powers, were marked with such distinction and clarity that there should be no need to elucidate, but obviously that is not the case. These limitations are clarified, not only in degree, but also in extent. It is within these limitations duly imposed upon the government by the authority of the Constitution, as agreed in Compact by the Several States in Convention, that the proper operation of government can be achieved and assure the protection of the Will and Rights of the People. To assume that the government can carry its own supremacy beyond such limitations, thus extending its own authority over the Reserved Powers of the Several States, in any shape, channel or form, would essentially destroy the entire system of the Republic by consolidating all its power in the hands of the government without regard to the Will of the People.
Thus we have seen that there has, through the decades, been a rapid expansion of the reach of the authority and powers that the federal government has assumed. This assumption is nothing more than usurpation, illegal under the Compact between the Several States as Ratified and, as we see, very detrimental to the Rights of the People. Even within the governments of the Several States, authority and power has been usurped from the People who retain Rights that are not even enumerated within the Constitution itself. We have been effectively taught that the Rights stated within the document of the Constitution are the only Rights We the People have, but that is untrue. There are Rights that were never Delegated to either the States or the federal government, not only were such Rights never Delegated they were not even enumerated; yet we make no claim upon them.
Congress and indeed the State Legislatures have both extended themselves and the scope of their power beyond that which was delegated. Our times have seen a myriad of novelty legislation emanating from both bodies however, this does not mean that such legislation is legal in the Constitution sense, it merely denotes that both legislative bodies have made an assumption of powers and authorities beyond those delegated to them. The law, whether on the level of the federal government or the State, must also be as proper as it is necessary. Without those two standards of character, then the law is without competency and should be considered void of demand.
The law therefore must yield that which is both proper and necessary, under such delegated powers, to be executed legally. We must realize, and therefore press upon all government, that is it, both our Right and therefore our Power to establish and ordain our government. Indeed, we have, ordained and established our State governments through their State Constitutions; from that origin, the States, by our Consent and through such Powers and Authority Delegated in Trust, did ordain and establish the federal government upon our behalf and for our sole benefit. We did so, in such ordination and establishment, form separate State Constitutions and thereby State governments, each created by itself and for itself without any concert or agreement with any of the other States; afterwards, in our Sovereignty, we did ordain and establish the federal government to be a reflection of the States to perform very specific functions within a very limited scope of delegated power.
Unlike the ordination and establishment of the governments of the Several States, the planning, ordination and execution of the federal government was done in concert and agreement between the Several States. It is this very same Power and Authority, through the Conventions of the Several States that did ordain and establish a federal government. This Supreme Power, as declared by the 10th Amendment, still resides within the People themselves and is solely Reserved by the People of the Respective States. I dare say that while there are those who would claim that such Power has been extinguished, they either fail to understand or refuse to assent to the Authority that still resides within the People themselves and if they hold such views then they only continue to allow for the assumption of power by the federal government.
This is the Right of the People, to Retain and Reserve those Powers and Authorities unto themselves and to exercise such Rights even when the various departments of government act to the contrary. Although there are those who would, through such assumption, lay claim to power and authority through the government, in both its infringements and abuses over Constitutional Order; there must come a time when We the People realize, and therefore exercise, the fact that Sovereignty resides in the People and not in government. When government, at any level, relinquishes its loyalty to the Constitution, the People themselves are released from all allegiance to the government for it is impossible for the People to remain loyal to an un-loyal, and therefore illegal government.
It must be logical to adhere to the principle that, so far as the federal government is concerned, that the People of the Several States can act in the very same way, in the same capacity, in which they did ordain and establish the federal government by Constitution, can, by the same united and concurrent voice, change, abolish or establish another government in its place, as well as completely dissolve the Union altogether. The Power to ordain and establish must also, by the very nature of such Power, have the Authority and Ability to dissolve the agreement that they entered into by Concurrent Consent. This, both the act of creation and dissolution, is an example of the high Sovereignty of the People. If this is not the case then all our Rights are contingent upon the whims of the government and our compliance to its will regardless of our desires or Consent. Our system must stand as one in the relationship of the superior to the subordinate, the People themselves being superior to the subordinate federal government as the creator to the created.
An interesting note concerning constitutions is that the constitution of the former Union of Soviet Socialist Republics included within its articles the right of any Soviet Republic to Secede. The banality of that right can be seen in the way that constitution was ordained and established; in contradistinction to our own Constitution, the constitution of the former U.S.S.R. was ordained by the central government itself, for itself, of itself, and did not rely upon the consent of the people over whom this legal document resided. Of course, the right of secession was among many rights guaranteed to the people of the former Soviet Union however, since none of those rights and indeed the existence of the Soviet government itself did not depend upon the consent or will of the people and since the people themselves held no concept of their natural rights or sovereignty, the constitution was of no effect regarding the people themselves or their potential grievances. This is an example of what happens when there is a complete centralization of power. All so-called rights in such a system are absolutely contingent upon compliance.
In our original, thus former Constitutional Republic, it was the People, after all, that both called for the creation and existence of the federal government and conferred upon it all the powers and authorities it utilizes. Without such conferment the federal government has no ability or power to operate in any capacity or strength whatsoever, in fact, there would be no federal government since it emanates solely from the Consent of the People. As we have seen however, there has been a consolidation of powers and authorities by the federal government, centralized over the years to the effect that the Powers and Authority Reserved to the States and the People respectively have been assumed and absorbed by the centralized federal government; the effects of this process is evident.
So, the People of the Several States, in the essence of their Sovereign Capacity, agreed to unite themselves in a connection what was as close as possible without merging their Respective Sovereignties, the States, into one common sovereignty and consolidated government. For, it that had been the case we would not have State Constitutions or State governments and would only have one central government with one Constitution. The governments and Constitutions of the Several States are not, in any way, subordinate to the federal government, just the opposite is true. As to this Compact, that is the view of the document that legally provides the provisions of the functionaries of the federal government on behalf of the People in the Several States.
It is, in no way, the rule over the individual governments of those States, only the rule over the federal government as emplaced by the Several States in Compact. To use the language of the Constitution itself, it was solely ordained as the "Constitution for the United States" and not over them as they Ratified it between themselves. So, if a State or several States violate the provisions of the document they violate it in terms of the Compact made between the States, but when the federal government violates the document it violates the Law as set forth by that document as ordained by the Several States.
The Constitution was ordained over the federal government, over all departments and functions of the federal government, not over the States, which possess their own Constitutions that provide for the laws of each of the Several States. The federal government is therefore, under complete obligation to follow the strict legal format enumerated in the Constitution as it was ordained and established by the Ratification of the Several States in Compact Agreement between them. In the most distilled legal form, the federal government owes complete and absolute allegiance to the People as reflected through the Compact enacted between the Several States. So, if the Constitution is indeed a Compact between the Several States, acting in their Sovereign Capacity, upon Consent of their Sovereign Citizens, the rest should logically follow the necessary consequences of that action of ordination and establishment.
The absorption of Reserved Powers by the Delegated Authority is one, as we have seen for the last 150 years, of the most pressing dangers to the future health and well-being of our country for the absorption of those Powers Reserved to the States and to the People respectively effectively neutralizes the Rights of the People themselves. There can be no restoration of the Constitutional Republic without the restoration of the proper role of the Several States along with the Power and Authority Reserved to them and the Sovereignty of the People. Conversely, if the federal government is not reigned into and limited to the scope of power and authority that was Delegated to it in Trust, then there can and will be no restoration of the Constitutional Republic.
Recently, there have been several States who are once again expressing the prerogatives of the Rights Reserved to them and the people. One such expression is found in a Resolution by the Legislature of the State of Arizona, which stated in a Concurrent Resolution proposing the Dissolution of the federal government of the United States of America if certain conditions occur.
The following is the text of that Resolution:
Whereas, on July 4, 1776, our founding fathers proclaimed that the people had the right to alter or abolish their government and declared thirteen British colonies to be free and independent, or sovereign, states; and
Whereas, on March 1, 1781, the thirteen states formed a central government they called the United States of America under a charter known as the Articles of Confederation and Perpetual Union, which stated that "each state retains its sovereignty, freedom and independence"; and
Whereas, on September 17, 1787, the leaders of the Continental Congress signed the present Constitution of the United States, which was then transmitted to the thirteen states for ratification and the formation of a new central government; and
Whereas, several of the states delayed ratification of the Constitution and three states made clear their position regarding sovereignty by stating that "the powers of government may be resumed by the people whensoever it shall become necessary to their happiness"; and
Whereas, eventually all thirteen of the independent states ratified the Constitution of the United States and joined the new Union, while retaining their sovereignty as states. The states made the new central government sovereign only to the extent that the states delegated to it limited and specific powers; and
Whereas, the Constitution of the United States is merely a treaty among sovereigns, and under treaty law when one party violates the treaty the other parties are automatically released from further adherence to it unless they wish to continue; and
Whereas, the fifty current principals, or signatories, to the treaty have done well in honoring and obeying it, yet the federal agent has, for decades, violated it in both word and spirit. The many violations of the Constitution of the United States by the federal government include disposing of federal property without the approval of Congress, usurping jurisdiction from the states in such matters as abortion and firearms rights and seeking control of public lands within state borders; and
Whereas, under Article V, Constitution of the United States, three-fourths of the states may abolish the federal government. In the alternative, if the states choose to exercise their inherent right as sovereigns, fewer than thirty-eight states may lawfully choose to ignore Article V, Constitution of the United States, and establish a new federal government for themselves by following the precedent established by Article VII, Constitution of the United States, in which nine of the existing thirteen states dissolved the existing Union under the Articles of Confederation and automatically superceded the Articles.
Therefore
Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring:
1. That when or if the President of the United States, the Congress of the United States or any other federal agent or agency declares the Constitution of the United States to be suspended or abolished, if the President or any other federal entity attempts to institute martial law or its equivalent without an official declaration in one or more of the states without the consent of that state or if any federal order attempts to make it unlawful for individual Americans to own firearms or to confiscate firearms, the State of Arizona, when joined by thirty-four of the other fifty states, declares as follows: that the states resume all state powers delegated by the Constitution of the United States and assume total sovereignty; that the states re-ratify and re-establish the present Constitution of the United States as the charter for the formation of a new federal government, to be followed by the election of a new Congress and President and the reorganization of a new judiciary, similarly following the precedent and procedures of the founding fathers; that individual members of the military return to their respective states and report to the Governor until a new President is elected; that each state assume a negotiated, prorated share of the national debt; that all land within the borders of a state belongs to the state until sold or ceded to the central government by the state's Legislature and Governor; and that once thirty-five states have agreed to form a new government, each of the remaining fifteen be permitted to join the new confederation on application.
2. That the Secretary of State of the State of Arizona transmit copies of this Resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives and each Member of Congress from the State of Arizona."
The second example is by the Legislature of the State of Montana:
AN EXTRA-SESSION RESOLUTION OF INDIVIDUAL LEGISLATORS OF THE 60TH MONTANA LEGISLATURE AND OTHER ELECTED MONTANA OFFICIALS URGING THE UNITED STATES SUPREME COURT THAT ANY "COLLECTIVE RIGHTS" HOLDING IN D.C. V. HELLER WILL VIOLATE MONTANA'S COMPACT WITH THE UNITED STATES, THE CONTRACT BY WHICH MONTANA ENTERED THE UNION IN 1889.
WHEREAS, the United States Supreme Court (Court) has agreed to review and decide the case of D.C. v. Heller appealed to it from the D.C. Circuit Court of Appeals;
WHEREAS, the Court has agreed to consider the question, "Whether the following provisions D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes";
WHEREAS, when the Court determines in Heller whether or not the Second Amendment secures an individual right, the Court will establish precedent that will affect the State of Montana and the political rights of the citizens of Montana;
WHEREAS, when Montana entered into statehood in 1889, that entrance was accomplished by a contract between Montana and the several states, a contract known as The Compact With The United States (Compact), found today as Article I of the Montana Constitution;
WHEREAS, with authority from Congress acting as agent for the several states, President Benjamin Harrison approved the Montana Constitution in 1889, which secured the right of "any person" to bear arms, clearly intended as an individual right and an individual right deemed consistent then with the Second Amendment by the parties to the contract;
WHEREAS, the wording of the Second Amendment and the Montana right to bear arms, now Article II, Section 12, exist today in form and wording identical to that agreed upon by the citizens of Montana and the United States in 1889 and unchanged since then; and
WHEREAS, a contract, compact or treaty must be implemented consistent with the terms and understandings in place at the time entered into.
THEREFORE BE IT RESOLVED by the undersigned members of the 60th Montana Legislature as follows:
1. That any form of "collective rights" holding by the Court in Heller will offend the Compact; and
2. That the Second Amendment and the Montana right to bear arms are both statements securing a preexisting right from government interference, and do not confer any boon of government upon the people; and
3. The level of review for the Montana right to bear arms and for the Second Amendment are specified within those declared rights -- "shall not be infringed" for the Second Amendment, and "shall not be called in question" for the Montana right to bear arms;
4. Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any "collective rights" holding in Heller"
This is continued by an explanation of the Resolution which follows:
The United States Supreme Court (Court) will soon consider D.C. v. Heller, on appeal from the D.C. Circuit Court of Appeals. The Court has agreed to resolve the narrow issue of: "Whether D.C. laws violate the second amendment rights of individuals who are not affiliated with any state regulated militia, but who wish to keep handguns and other firearms for private use in their homes."
Although having narrowed the question under consideration, the Court must necessarily confront and decide whether the Second Amendment to the United States Constitution secures an individual right to keep and bear arms, or a collective right for states to arm their National Guards.
Viewing this question from the perspective of geographically diverse citizens, the current state of law is different, depending on where the citizen lives. The various federal circuit courts of appeals have ruled differently on this question, causing the Second Amendment to mean something quite different for a person residing in San Diego, California than it does for a person residing in San Diego, Texas. To resolve this difference is at least part of what will result from the Court's consideration of Heller.
About the facts in Heller much has been written. It is not necessary to reproduce that discussion here, nor the many arguments to be made persuasively by other.
What is important here is that what the Court rules in Heller will have import far beyond the narrow focus of the Court's declared intent. The Court's ruling will have an impact on all states, and upon all people living those states. It is the purpose of this essay to disclose one considerable impact that may not be apparent unless this argument is advanced to the Court.
Although the argument made here is specific to the State of Montana, this argument may be valid for most, if not all, other states.
Synopsis of argument
A collective right interpretation of the Second Amendment by the Court would breach Montana's Compact with the United States, a contract entered into in 1889, a time when no authority seriously held a collective right view and therefore no part of the intent of the contracting parties.
Compact with the United States
When Montana entered into statehood, that event was accomplished via the legal mechanism of the Compact with the United States, now preserved at Article I of the Montana Constitution[1]. Other documents which will enter into this discussion include the Organic Act[2], the Enabling Act[3], Ordinance 1[4], and the Proclamation of Montana statehood by president Harrison[5].
Montana's Compact with the United States (Compact) is a bilateral, written contract or agreement that binds the parties thereto. Compact defined: Bouvier's, 1839[6]; Bouvier's, 1856[7]; Webster's, 1884[8]; and Black's, 1910[9]. "The terms 'compact' and 'contract' are synonymous. Green v. Biddle, 8 Wheat. 1, 92, 5 L, ed. 547."
The only difference between a compact and a contract in any reasonable usage of the terms as they apply here is that a compact is more generally an agreement between or among states.
Montana's Compact shares many points in common with usual, bilateral contracts. It includes competent parties, subject matter, legal considerations, mutuality of agreement, and mutuality of obligation.
In this context, the term compact also has considerable overlap with the term "treaty." For some aspects of consideration of the effect of a compact, treaties are more nearly analogous, because treaties are always between nations or states, or the treaty-making authorities of nations or states. Further, treaties often contemplate a longer time span than usual contracts, as does Montana's Compact. Treaty defined: Black's, 1910[10]; and Bouvier's. 1856[11].
It is a bedrock principle of contract interpretation that contracts must be interpreted so as to give credence to the intent of the contracting parties. This principle is so well established as to need no elaboration here. The same principle applies to treaties. From Bouvier's Law Dictionary of 1914, "Treaties should be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them; Geofroy v. Riggs, 133 U.S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. When made with an Indian tribe its words are to be construed as an Indian would understand them; Jones v. Meehan, 175 U,S, 1, 20, Sup. Ct. 1, 44 L. Ed. 49." and "While they are to be liberally construed, they are to be read in the light of conditions existing when entered into, with a view to effecting the objects of the parties; Rocca v. Thompson, 223 U.S. 317, 32 Sup. Ct. 207, 56 L. Ed. 453."
Intent of the contracting parties
When Montana entered into statehood and adopted the Compact as a part of the Montana Constitution of 1889[12], included was a provision guaranteeing the right to bear arms to "any person."[13]. The right to bear arms reservation was at Article III, Section 13 of the 1889 Montana Constitution. This was exactly the same language as used in the territorial Montana Constitution of 1884[14]. The language was unchanged in the revision and readoption of the Montana Constitution in 1972, with the RKBA provision being lodged at Article II, Section 12[15].
To be clear, the wording of the right to bear arms reservation in the Montana constitution is exactly the same today as it was in 1884, and as it was in 1889 upon adoption of the Compact. This reservation of right clearly and unambiguously contemplates an individual right for "any person," language that simply cannot be respun to somehow mean a right of state government. As the Montana Supreme Court has said, the individual rights reserved by the people to themselves in the Montana Constitution are specifically a direct bar to government actors. (St. v. Long, 216 M 65, 700 P2d 153, 42 St. Rep. 643 (1985)) This is contradictory to any theory that when the people of Montana reserved themselves this right they somehow meant to confer authority to government actors.
Militia Act of 1903 was the beginning of the National Guard and directed the federalization of the National Guard. "The National Defense Act of 1916 transformed the militia from individual state forces into a Reserve Component of the U.S. Army - and made the term "National Guard" mandatory".[16] Since the National Guard was not invented or authorized until after 1900, there could have been no understanding in 1889 that the purpose of the Second Amendment was to authorize the states to arm the National Guard.
According to the Organic Act[2], the people of the Montana Territory were required to devise a constitution that met certain requirements in order for Montana to become eligible for statehood. Therefore, Congress, acting as agent for the several states, had full opportunity to review the proposed Montana Constitution as a result of passing the Enabling Act (February 22, 1889) [3] that allowed Montana to become a state. That is, Congress knew full well that the people of Montana had reserved the right of "any person" to bear arms, and found that reservation not inconsistent with the federal system and the Second Amendment. "It is further to be observed that treaties are the subject of careful consideration before they are entered into, and are drawn by persons competent to express their meaning, and to choose apt words in which to embody the purposes of the high contracting parties." (Rocca v. Thompson, 223 U.S. 317, 32 Sup. Ct. 207, 56 L. Ed. 453.)
Further, before Montana was allowed statehood, and as a part of the contract, the Montana territorial legislature, on behalf of the people of Montana, was required to approve Ordinance 1[4]. In its fifth paragraph, Ordinance 1 declared," Fifth. That on behalf of the people of Montana, we in convention assembled, do adopt the constitution of the United States." This adoption was on February 22nd, 1889. Certainly, the Second Amendment, in the exact same verbiage as it occurs today, was a part of the "constitution of the United States" that was adopted and accepted by Montana in 1889 via Ordinance 1.
In the proclamation of Montana statehood, by President Benjamin Harrison, dated November 8, 1889[5], President Harrison specified that Montana had been required to prepare and adopt a constitution that "not be repugnant to the Constitution of the United States" Further, he declared, "Now, therefore, I, Benjamin Harrison, President of the United States of America, do, in accordance with the provisions of the act of Congress aforesaid, declare and proclaim the fact that the conditions imposed by Congress on the State of Montana to entitle that State to admission to the Union have been ratified and accepted and that the admission of the said State into the Union is now complete." It was accepted in contract that in Montana, "any person" had the right to bear arms.
Conclusion
In 1889, Montana and the other several states entered into a contract - struck a bargain. That contract was reduced to writing and is found today as Montana's Compact with the United States and is recorded at Article I of the Montana Constitution. That contract has not been amended. In that contract, via adoption of the corollary and required Ordinance 1, Montana adopted the U.S. Constitution, definitely including the second amendment. Congress and the President, acting as agents for the states, allowed Montana into the union contingent upon Montana proffering an acceptable state constitution. That constitution, as it was accepted by Congress and the President, included the reservation of the right of "any person" to bear arms, a clearly individual right maintained and asserted today in exactly the same verbiage used in 1889.
There is no question that the contract into which Montana entered for statehood was predicated upon an understanding that the people of Montana would benefit from an individual and personal right to bear arms, protected from governmental interference by both the federal and Montana constitutions. That was the clear intent of the parties to the contract.
Therefore, any holding that the second amendment merely gives the power to the state to arm its National Guard or other state's militia would violate Montana's contract, because it would be in conflict with the intent of the parties of the contract, at the time the parties entered into that contract.
Some speak of a "living constitution," the meaning of which may evolve and change over time. However, the concept of a "living contract," one to be disregarded or revised at the whim of one party thereto, is unknown. A collective rights holding in Heller would not only open the Pandora's box of unilaterally morphing contracts, it would also poise Montana to claim appropriate and historically entrenched remedies for contract violation."
As we see, the issue of centralized power is gradually being questioned, not only by Citizens in their Individual Status, but also by the States. It is once again time to make this a primary issue in our hopes for the Restoration of the Republic for without the proper role of government, without the checks and balances as enumerated within the Constitutional Compact as Ratified Between the Several States then this country will continue down the road that will only lead to an increase of centralized power and tyranny. Without the proper exercise of Power and Authority as delineated within the Constitution the hopes and dreams of those who maintain Constitutional Patriotism will never be realized. We must make every concerted effort to regain each and every legislature of each State in order to press upon the federal government its place as a subordinate servant of the People.
This is indeed a Revolution that is no less important, no less critical for our Liberty than that fought in 1776. The results of this Revolution will determine the future of this country and whether our children and children's children will enjoy the Heritage of Liberty passed down from those who had the insight to form and craft our once-prosperous Republic. Increasingly, there will be forces, which will rise against all who contend that these Principles are both valid and pertinent to our lives and the wellbeing of our country. At some point in the future we must all decide whether we will be considered merely collaborators with the centralized power expressed by the federal government or if we will oppose such assumption of powers and therefore be considered, for all intents and purposes, enemies of such usurpation of power by that government.
We have become a society which must seek permission, pay taxes, fees, hold licenses and generally comply with all codes, rules, regulations and legislations whether they be proper and necessary or not. We are a society that must completely rely upon our complance to the central government, and increasingly to another layer of compliance acts legislated by our own States, if we wish to remain relatviely free and unfettered in our pursuits.
THE DAY MUST COME WHEN WE REALIZE THAT FREEDOM CONTINGENT UPON COMPLIANCE IS NOT FREEDOM!
In Liberty,
Republicae
Did you like this article? If you did, Thumb It! 16 thumbs so far
The views expressed in this
article are those of Republicae only and do not represent
the views of Nolan Chart, LLC or its affiliates. Republicae is
solely responsible for the contents of this article and is not an
employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.
So if I do not consent to being arreasted for theft and the state arreasts me anyways, does that mean that I am not free? If I don't consent to being governed at all does that mean that I still have to follow the law?
Sir, do you have any understanding of structure or context in the English language? What does the article state? It states that all Law, to be Just, must meet certain legal character and must be both Proper and Necessary in order to form a Just and Applicable Law. The entire purpose of government is for the People to delegate certain powers to it, but with that delegation are specific limitations intent on protecting the People themselves from the abridgment and usurpation of those powers.
How can you not read, do you simply not understand the English Language...I mean you make yourself out to be an imbecile with such statements because it is clearly obvious that you haven't read the article only taken one bit or one piece from its body to make claim of an argument that is non-sensical, to say the least.
Seriously, are you a child? Your level of understanding and comprehension is definitely not on a level that would indicate anything else.
"The entire purpose of government is for the People to delegate certain powers to it, but with that delegation are specific limitations intent on protecting the People themselves from the abridgment and usurpation of those powers."
Ok so this is why it is just for the government to ban the sale of liquor in certain counties, days, or hours because the people there wanted it that way? So what if the majority in the county wanted to make it illegal to criticize the local town hero, say Jebediah Springfield for example.
Would the majority support make such a law just? If not why are the rights guaranteed by the Constitution just? A majority did not vote for them, so can we really say for the people and by the people?
What truly makes a law just? Not everyone agrees with freedom as defined in the Constitution, so at what point is that minorities say ignored in favor of those who do agree with such provisions?
Who said it is Just or Proper for the government to ban the sale of Liquor, that is a local issue within those jurisdictions to determine for themselves, is it not. If a law does not conform with the Desires and Will of the People nor with the Principles of Individual Liberty then it is up to those People to decide that issue by actively pursuing and prevailing themselves of the functionality of the process in place to make such changes. When government acts outside of the power and authority delegated to it to govern then it is up to the People to implement the necessary changes to adjust such abuses. On local, district and county levels you have the ability to effect the results of an election by popular vote, since that vote is popular it is up to those who view such laws as either Just or un-Just to convince the majority of votes one way or the other. The determination of a Just Law is not in the enactment of it or not, but in the principles upon which it is constructed. Even on the State level, that election of the governor, representatives and Senate are based more on the popular vote, that is why it is extremely important that the Citizens of each of the Several States involve themselves as much as possible in State politics, for that is where it all begins.
If you read my article entitled “The State Desires Divisions” then you will see that the Founders placed within the structure of the Constitution a very ingenious function within the Republic and that was layer upon layer of not only checks and balances, but also numerous legal barricades to blunt the force and power of the Majority. They were well aware of the dangers of democracy and for that reason they created a Republic instead. By no means does majority support make a Law Just, Proper or many times even Necessary. The point comes to whether we are willing to fight against such Laws when it becomes obvious that they are un-Just, Improper or unnecessary?
You are making my point for me, it appears finally. The fact of the matter is that until the Citizens of this country get off their soft and complacent arses to make such changes, to empower themselves then we will continue to suffer from the woes of the status quo. State Legislatures are even involved in proposing and passing laws that hardly qualify as either Just, Proper or Necessary, yet the People rarely contact their State Officials to voice outrage, the same is true on the federal level.
Freedom has not been defined by the Constitution, it was only enumerated in the vaguest of terms. There are, according to the Constitution, Rights Retained by the People that are not even enumerated. That has been the problem it seems; apparently most People and definitely most government officials believe that the Constitution not only defines our Freedom, but places limits upon it, that is not the case. The Constitution does not define our Freedom and Liberty it only defines the scope of the reach and functionality of the government’s use of power and authority as it was delegated by the People. The Constitution is not, nor has it ever been a document or contract limiting the Rights, Freedom or Liberty of the People, it is only a document that, through Concurrent Consent of the People through the medium of the Several States, limits the government alone. We must return to the reasons of the Constitution and reject the novel ideas that have been pressed upon it, even by the Courts, that it limits the People in their Liberty, it only limits the government in it liberty to assume power not made available to it by the People.
If the Republic, as originally formed, was once again Restored, if the 17th Amendment repealed to once again place the Senate in the hands of the Legislatures of the Several States, if the dangerous novelty of the Fiat Monetary System was destroyed, then the People would once again have a chance to claim their Liberty in ways that few realize. The voice of the minority would have equal footing with the majority because that is one of the primary functions of a Republic. In our current system, the politicians pander to the will of the rich, to the majority because they can sway such support by their pandering. Democracies are dreadful monstrosities that always end in disaster, especially for those holding minority opinions. We must all come to understand that as long as anyone depends on their minority status to determine their rights then the majority will only recognize a degree of rights based solely upon a specified set of what the majority considers allowable and therefore, contingent freedoms. In other words, the majority will always restrict the rights of the minority unless the minority can base their rights upon something other than the specific attributes and or definitions of that minority.
The government is not inclined to, nor does it obligate itself to ensure the Rights of any person in this country although it was created to protect the Rights of every individual. It is up to the individual to combatively insist and aggressively pursue his or her Rights before the government. It is People, first and foremost, that form the State Republics through acting on a cooperative and voluntary basis, but with an extreme prejudice toward their Rights. It has been said that the majority opinion is the true ruler; if that is the case then perhaps it is time for us all to become the majority and not base our Rights upon a specific status as a minority. This does not preclude any attributes that a person has who is a member of a minority or their identity, but in the eyes of the majority and therefore the law, a minority is only a minority and will remain as such as long as they base their Rights solely upon their minority status.
The problem with every democracy is that the majority always rule to the exclusion of the minority. The reason the Founders purposed a Republic instead of a democracy was to blunt the force and power of the majority through layers of checks and balances to equal out the playing field. The more democratic a political system becomes the more the majority “lords over” the minority. It is strange that people are all for democracy until it actually rules against them and in a democracy, since the majority always rules, the minority will always suffer under the prejudices of the majority. There is a defined tyranny within a democracy and yet so many clamor for such a system because they feel that it will provide them with more voice while just the opposite is true. In every democracy the government system appeals to the material interests of the majority’s large voting block, in turn the government will then merely placate the minority with a degree of rights and yet never “grant” them the same degree of rights as the majority.
So, what shall we do as Citizens of the Several States? Shall we continue our allowances to the centralization of the federal government to the point that we no longer have ample power to resist its usurpations and abuses?
"State Legislatures are even involved in proposing and passing laws that hardly qualify as either Just, Proper or Necessary, yet the People rarely contact their State Officials to voice outrage, the same is true on the federal level."
That is because we live in a nation full of all sides of the nolan chart. We are overall a Centrist nation. People don't get angry if they have elected a conservative government that prohibits alcohol to be sold on Sunday, prevents porn from being bought or sold in thier county, or makes it a crime for minors to be outdoors at 2AM.
Not everybody is a libertarian. Not everybody understands why they should be angry. Not everybody supports Ron Paul. It is not the MSM or Rush Limbaugh's fault that Ron Paul did not appeal to everyone, but we as libertarians have got our heads so far up our collective asses that we can't see why and then we make ourselves look bad by resorting to conspiracy theory kookary as a legitament explaination as to why Ron Paul lost.
We need to make ourselves more attractive. Rush Limbaugh, Neal Boortz, and John Stossel have helped us get the country to understand some things that Libertarianism stands for.
These people can not do it alone. Rush will limit himself to the edge of Conservative Libertarianism everytime that he refuses to take on the drug war for being counter productive. He also shows himself to be a fool when he talks about how great it is to see the commie Pope in America. (I really think that he is back on drugs with this idiocy) Neal Boortz does not talk enough about the positives that illegal immigrants play in our country and he sounds like a conservative when he talks about the subject.
Rationality and Sense are not in abundance in our nation. There are too many forces that cause us to lose sight of things. Religion is the biggest, Economic illiteracy is another, and intolerance of gays, alternative lifestyles, and xenophobia keep us from getting anywhere.
This is why I ask these questions, because most Americans will not take the time to read your lengthy and boring articles if you don't get strait to the point and attack.
Of course Lloyd, I am not generally addressing the masses of Americans, obviously. My goal is to assist those who are to one day lead the fight against the legions of Statist, Socialist, Corporatist and Fascists. There are several levels to the battle or didn’t you notice? Many are just becoming aware of the principles of the Constitutional Republic; some however, are a bit more in tune with those principles and the standards necessary to arm themselves against everyday assaults against their own personal Liberty. It is not my “mission” to reach the masses, or to be popular or to do anything but express my personal feelings and miniscule understanding of our incredible Constitutional System of Liberty. My “mission”, if you can even call it that, is to start those small little brush fires in the hearts and minds of People, from there let them spread.
I personally could care less about that entertainer Limbaugh, or the rest of those who pose as voices of the People, they get their paychecks, have their adherents and usually prove that they are either completely unconcerned about the reality of this country or they simply don’t care as long as they continue to receive their hefty salaries.
I have been around a long, long time and have lived through the Administrations of 11 Presidents thus far; this next election will make 12. So, I have lived through a bit of history, seen drastic changes take place in this country over the years. I do have an understanding that not everyone is a “libertarian” believe me. Concerning the popularity of Dr. Paul, that had absolutely nothing to do with whether a very, very small minority of his supporters promoted certain “conspiracy theories”, it had very much to do with the way this electoral process has devolved into a superficial contest as judged and promoted by the heavy influences of media. Additionally, Dr. Paul’s message, which has, over the years rightly “predicted” a vast number of events that this country has faced and will face, has been on mark. These have not gone un-noticed, even by the “entrenchment politicians” or their media handlers.
I do a huge amount of research and I can tell you that there are very legitimate stories in very legitimate news sources, seemingly hidden by the view of the mass public readers, that have given Dr. Paul and his propositions pretty incredible acclaim. One for instance appeared in the Canadian Financials a few months ago, but it didn’t make it through our filtered media, where they stated that if Ron Paul won the Presidency and implemented Sound Money policy that it would make the United States so competitive that Canada would have to follow suite and also implement Sound Money. Amazing isn’t it that we never or rarely hear such stories. Even the CFR has stated in one of its publications that the global economy may be forced to once again return to Sound Money, of course they didn’t mention Dr. Paul, but it was an interesting article. Another article that didn’t get much exposure was in an American Financial paper, in it the headlines of the article said: “Maybe we should have listened to Ron Paul”; so there are those, even in the entrenchment that are taking notice that what Dr. Paul has been saying not only makes sense, but as things begin to crumble you will see more and more begin to take similar positions as Dr. Paul. That is a very good beginning, especially when more and more people realize that those politicians such as Hillary, Obama, and McCain really don’t have a clue and definitely don’t have answers.
Concerning common-sense rationality in this country, no, there is not a huge abundance, but there really doesn’t have to be in order to make necessary changes; thankfully we still have just enough of the structure of the Republic left to implement changes. Dr. Paul has been a catalyst for starting a ground swell of not only interest, but also action in many people. The seeds have been planted, now those seeds must be nurtured and tended until fruition…it will happen.
As far as my seemingly verbose articles, as I said, they are not necessarily for the masses, but for those in whom a spark has already ignited and I am there to fan it into a flame.
Want to comment on this
article? Leave your comment here. Your email address is
required to track your comment. However, we will neither
publish your email address nor distribute it to other
organizations or persons. The only reason we might use
it would be if we needed to contact you regarding your
comment. All comments are subject to our
terms of use policy.
