~Basil

---------
Dear MSSA Friends,

Some of you report that my Guest Column at the Missoulian is behind a paywall. Well, here is what I submitted that the Missoulian published:

----------

MISSOULIAN

EDITOR'S PICK
Guest column
Online opinion: Regents v Montana, the philosophical argument

GARY MARBUT May 29, 2021

The Montana Board of Regents has sued in the Supreme Court [rejected and refiled in District Court. GM] in attempt to block and disallow the campus carry feature of House Bill 102. In this lawsuit, the regents sweep in for undoing much more than just the campus carry sections of HB 102.

Regents argue that because they are given authority to manage the affairs of the university system in Article X of the Montana Constitution, then they are exempt from the restraints of Article II, the Declaration of Rights, in anything that has to do with their university management authority.

They do not declare this directly, but it is implicit in their argument for their own authority and for their assertion that the Legislature is unconstitutionally attempting to usurp their constitutional authority with HB 102.

First, when the regents seek to paint the Legislature as the usurping bully, they conveniently ignore that the governor also approved HB 102. So, it is not just the legislative branch involved in this alleged usurpation, it is also the executive branch. The regents should know that the governor and the Legislature are properly representing the will of the people in this contest.

Second, HB 102 is not a matter of the Legislature improperly assuming powers belonging to the regents. Rather, it is a matter of both the Legislature and the governor reminding the regents that all state governmental entities are subject to the restraints in Article II, including the regents.

Third, looking from the 10,000-foot view, all political power is vested in the people, as is overtly declared in Article II, Section 1. The people delegate a measured amount of their personal political power to governmental entities in a contract called the Montana Constitution. As a part of that contract, the people also spell out what powers are not delegated to governmental entities, restrictions primarily memorialized in Article II.

While the regents may be delegated some limited powers in Article X, that simply does not include the power to ignore the firm limitations of power for all governmental entities detailed in Article II. The people simply do not consent to any governmental exercise of power that they reserve to themselves specifically from government interference in Article II. The people declare this very overtly and clearly in Montana's Declaration of Rights, Article II of the Montana Constitution. These reservations of authority include freedom of the press, religion, speech, assembly, right to know, right to privacy, due process, trial by jury, right to keep and bear arms, and much more.

Fourth, for there to be any concurrence that the regents, having been created by Article X, are somehow therefore exempt from Article II restrictions, at least when operating in their own sphere, would logically require that any other entity created and given power by the Constitution would also be exempt from Article II restraint. This would include, at a minimum, the executive, the legislative, and judicial branches, and all state officers such as the governor, the secretary of state, the attorney general, the state auditor, the superintendent of public instruction, the Public Service Commission, and even local governments. All of these are created by the Constitution, just as the Board of Regents is.

Under the Regents' argument, any or all of these entities are free to conduct trials without juries, impose a death penalty regardless of state law, eradicate freedom of the press, ban religion, foul the environment, ban firearms, and much more.

This construction, of course, would be absurd. But, this construction is what would be logically required if it is held that the regents, just because they are created and offered limited power by the Constitution, are somehow thereby exempt from the constraints on government overtly and purposefully put into the Constitution by the people at Article II.

The regents ask the Montana Supreme Court to support and enforce all of this. And, the Montana Supreme Court is unpredictable enough to concoct some convoluted rationale that supports the regents. Have no confusion about this. This is a bare power struggle between the education industry and the people of Montana.

The education establishment presumes the power to do whatever it wants, regardless of what the people of Montana want or any constraints on government power the people have built into the Montana Constitution. The Legislature and the governor have come down on the side of the people. It remains to be seen which side the Montana Supreme Court will take.

Gary Marbut has been observing and participating in Montana public policy formulation for a half century. Marbut drafted the introduced version of House Bill 102 on behalf of the Montana Shooting Sports Association, of which he is president. Marbut has drafted scores of bills for legislative consideration over the years. More than 50 of those have ultimately been enacted into law.

--
Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.mtpublish.com