Democrats' double standard on constitutional amendments

Democrats' double standard on constitutional amendments

Ballot measures to impose new gun control laws? Democrats love ’em, even when the courts question their constitutionality. But when Republicans turn to voter referendums and constitutional amendments to strengthen the Second Amendment, as they’re doing in Montana, Democrats declare an “existential crisis” is at hand.

Thanks to the midterm elections, Republicans in the state now enjoy a supermajority in both legislative chambers as well as the governor’s office. That gives them the numbers (on paper, anyway) to start the ball rolling on amending the state’s constitution, and several lawmakers are already looking at one area they say is in desperate need of reform: the unfettered power given to the state’s Board of Regents in establishing rules and policies governing public colleges and universities in Montana.

Earlier this year the state Supreme Court overturned a law establishing a process by which law-abiding citizens could legally carry a concealed firearm on those campuses, ruling that the state legislature has now power to overturn the prohibition put in place by the regents. Speaking to a local radio station this week, Montana Attorney General Austin Knudson declared that decision was so egregiously awful that it’s no surprise legislators have adopted the strategy of changing the state constitution itself.

“When that constitutional carry on campuses fight went to the Montana Supreme Court, that’s literally what the Montana Supreme Court ruled, that that the university system was so powerful that it could suspend the Bill of Rights on the university campuses, and I think that’s incredibly dangerous,” he said. “That’s why you’re seeing constitutional initiative bills being dropped in the legislature because you’ve got legislators who are upset about this process.”

But the attempt to curb the regents’ power goes beyond Second Amendment concerns; touching on our individual freedom of speech as well.

Several referendum proposals concern Montana’s Board of Regents or the part of the Constitution that lays out the duties of that body, which oversees the state’s public university system. While declining to specify the language he’ll pursue, Rep. Mike Hopkins, R-Missoula, said his request is a direct response to recent court rulings striking down GOP-sponsored laws that sought to set policies on college campuses.

“I think what we’re dealing with is language clarifying that the Board of Regents has to respect all portions of the Constitution, it doesn’t get to pick and choose,” Hopkins said of his proposal.

One of his bills from the 2021 session was recently struck down by the courts for attempting to impose policies on “internal university affairs,” which the Supreme Court has said is an authority given to the Board of Regents by the state constitution. The bill sought to prohibit universities from disciplining students for speech, with some exceptions.

It was among four laws passed by Republicans in 2021 that have been struck down for overstepping the Board of Regents’ authority. Hopkins suggested his referendum could also be crafted to grant the Legislature oversight power of the board.

The Missoulian reports that at least five requests for draft legislation to amend the constitution that specifically concern firearms have been filed by lawmakers, though the specifics of those proposals aren’t yet available. Whatever the final language looks like, it’s clear that the intentions of the state legislature are both to ensure that it has the final say on gun laws throughout the state, and that our constitutionally-protected rights are treated with the fundamental importance that they deserve.

Amusingly, the same party that generally believes constitutions are living, breathing documents that can be changed simply be re-interpreting their text is now trying to argue that allowing voters to amend the state constitution is a terrible idea.

… Democrats have painted the GOP supermajority as an existential threat to the state’s guiding document. Republicans have argued that a supermajority doesn’t give them unchecked power over the future of the state constitution. They’re only proposals until the voters decide.

Senate Minority Leader Pat Flowers counters that Montana voters have the ability, every 20 years, to vote for a new constitutional convention to draft up a fresh document. So far, they’ve opted to keep it since 1972’s update. And he said it’s “naïve to just label these as options” for voters.

“Any time you put a referendum on the ballot, it has the potential to pass,” Flowers said. “And if that referendum passes and we lose fundamental rights and freedoms that are in the Constitution, that’s an incredible loss for the state, in my opinion, and can change the state in dramatic ways.”

That can definitely happen, as we’ve seen in Oregon where the deeply-flawed and unconstitutional (in my opinion) Measure 114 was narrowly approved by 50.7% of the voters last month. But when it comes to the gun-related amendments being proposed in Montana, the intent isn’t to strip away fundamental rights and freedoms, but to ensure that they’re protected from government intrusion by any body; be in the State or one of its many political subdivisions like the Board of Regents.

It’s also silly to equate a constitutional convention with simply amending the existing document. We the People have the ability to call for an Article V Convention of the States under the U.S. Constitution, but we’ve never actually done so. Instead, we’ve repeatedly amended the Constitution when support for particular measures have been widespread enough that they can achieve the large majorities required to modify our framework of government. Similarly, Montana requires a 2/3rds vote in both chambers to even bring a proposed amendment to the voters; a substantial burden, but one that can now be met.. at least if Republicans stick together in defense of the right to keep and bear arms.