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Heller and Threats of Secession
Posted by: Dale Franks on Tuesday, February 19, 2008

Well, I must say this is an interesting development. The Montana Secretary of State, Brad johnson, and a number of Montana lawmakers have filed an amicus brief before the Supreme Court in DC v. Heller. The text of the brief can be found here. In addition, a summary of the brief can be found in a letter from Mr.Johnson to the editors of the Washington Post.

The money quote:
A collective rights decision by the court would violate the contract by which Montana entered into statehood, called the Compact With the United States and archived at Article I of the Montana Constitution. When Montana and the United States entered into this bilateral contract in 1889, the U.S. approved the right to bear arms in the Montana Constitution, guaranteeing the right of "any person" to bear arms, clearly an individual right.

There was no assertion in 1889 that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of "any person" to bear arms.

As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states.
In plain language, this argument asserts that a collective rights interpretation in Heller would nullify the statehood compact under which Montana—and several other states—entered the Union. This would allow Montana to legally secede from the Union, since such a decision would constitute a unilateral violation of the statehood compact, which expressly grants an individual right for Montanans to bear arms.

Of course, the amicus brief doesn't use the word "secession". It merely concludes, "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."

Those "appropriate and historically entrenched remedies" are, of course, repudiation and withdrawal from the contract.
 
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