Possible Montana Secession?

mijopaalmc

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Well, it looks like if the SCOTUS upholds the DC ban on the carrying of handguns by private individuals in D.C v. Heller Montana may try to "secede" from the United States (or at least terminate its statehood).

The Montana Secretary of State justifies the action thusly:

The court must decide in Heller whether the Second Amendment secures a right for individuals to keep and bear arms or merely grants states the power to arm their militias, the National Guard. This latter view is called the "collective rights" theory.

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.
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However the Compact With the United States on which the Secretary of State appears to basing his decision:

All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.
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(emphasis added)

Furthermore, the Enabling Act to which the Compact refers seems mainly to establish the conditions to the states' entrance in to the Union and says very little, if anything, is said about the Act being a contract, let alone terms which, if violated by the federal government, would lead to the dissolution of the contract between the states and the federal government.

I was there fore wondering if someone who knows more about the law that I would be able to shed some light on the contract-law interpretation of the Enabling Act and the legality of Montana's possible termination of said contract given the statements in the Compact.
 
If they secede, Canada will doubtless gobble them up!

Won't someone think of the children?

DR
 
Darth Rotor said:
If they secede, Canada will doubtless gobble them up!

Won't someone think of the children?

DR
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Actually, from what I have heard, the "secession" would just be a termination of Montana's statehood; it would remain a US territory.
 
mijopaalmc said:
Actually, from what I have heard, the "secession" would just be a termination of Montana's statehood; it would remain a US territory.
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Neato. Set the right precedent and the US could transform into a franchise instead of a country.
 
Garrette said:
Neato. Set the right precedent and the US could transform into a franchise instead of a country.
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Hmmm... so we'd have a more loosely aligned group of individual states with more sovereignty at the state level and an overlay of federal rules and bureaucracy. You could almost like a confederacy...

Nah, I don' think they even know what grits are in Montana.
 
It doesn't make sense even if you buy the Montana Secretary of State's premises. Montana is free to have a state constitution that provides more rights for individual citizens than the federal government; this court case would not interfere with that.
 
godless dave said:
It doesn't make sense even if you buy the Montana Secretary of State's premises. Montana is free to have a state constitution that provides more rights for individual citizens than the federal government; this court case would not interfere with that.
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Except that a stare decesis ruling (I think that is the correct legal terminology) in D.C. v Heller would allow federal legislation to be enforced at the local level, leading to a violation of Montana State Constitution should similar federal legislation ever be enforced in Montana.
 
godless dave said:
It doesn't make sense even if you buy the Montana Secretary of State's premises. Montana is free to have a state constitution that provides more rights for individual citizens than the federal government; this court case would not interfere with that.
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This is correct.

mijopaalmc said:
Except that a stare decesis ruling (I think that is the correct legal terminology) in D.C. v Heller would allow federal legislation to be enforced at the local level, leading to a violation of Montana State Constitution should similar federal legislation ever be enforced in Montana.
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This is not.
 
You know, I dimly recall that some states tried secession once. I don't think it worked out too well for them, regardless of the legal cases they thought they could make about it.
 
Actually now I see Mijo's point. If the federal government were to pass a nationwide law banning handguns (which wouldn't happen in the foreseeable future, but is theoretically possible), and if SCOTUS goes through, then the federal law would probably trump any rights granted by the Montana state constitution.
 
godless dave said:
Actually now I see Mijo's point. If the federal government were to pass a nationwide law banning handguns (which wouldn't happen in the foreseeable future, but is theoretically possible), and if SCOTUS goes through, then the federal law would probably trump any rights granted by the Montana state constitution.
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That is what some refer to as creeping federalism, and others in much harsher terms.

Note the flag of Virginia.

DR
 
godless dave said:
Actually now I see Mijo's point. If the federal government were to pass a nationwide law banning handguns (which wouldn't happen in the foreseeable future, but is theoretically possible), and if SCOTUS goes through, then the federal law would probably trump any rights granted by the Montana state constitution.
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And the Montana Secretary of State (along with some Montana State lawmakers) reasons that this would violate the contract set forth by the Compact in Article I of the Montana State Constitution, rendering the Enabling Act of 1889 null and void (at least for Montana) and terminating Montana's statehood.

For the record, I do not agree with the reasoning in the above paragraph; I think it is shaky at best because the the Enabling Act of 1889 seem to set forth only the responsibility of the constitutional conventions of the nascent states to the federal government and not vice versa. I also think that it is a bit dubious to assume that federal legislation is a contract when it does not explicitly call itself a contract. It may be a contract in the sense of social contract theory but it may not be a contract under the law.
 
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