This article first appeared in the July 10, 2022 edition of The Missoulian.

I strongly believe universities should be free from political pressure. When I was a candidate for governor, for example, I spoke out against a proposal to replace Montana’s board of regents with a single political appointee.

Still, I think the Montana supreme court was wrong to exempt the Montana University System (MUS) from a law securing Montanans’ right to keep and bear arms.

House Bill 102, passed last year, banned the MUS regents from subverting that right. HB 102 was particularly important to young women, because it ensured that they can protect themselves against the sexual predators who sometimes stalk college campuses.

But the regents have a policy of disarming most university personnel, so they sued to partly overturn HB 102. They relied on Article X, Section 9(2) of the 1972 Montana Constitution, which says:

“The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.”

Despite what you may have heard, the 1972 constitution is not particularly well-written, and this section is an illustration: Just a moment’s reflection tells you there must be limits to this grant of “full power.” Could the regents decide that they don’t like some of the legislature’s criminal laws and exempt MUS campuses? Obviously not.

In 1975, the Montana Supreme Court tried to strike a balance: It ruled that the regents could decide issues such as a university president’s salary, but the legislature could earmark appropriations for particular uses.

Let’s look at how the balance should work in the case of HB 102.

The constitution says that state government is “divided into three distinct branches—legislative, executive, and judicial,” and that no branch will exercise the powers of any other. With two exceptions, the constitution vests the legislative power in a “legislature consisting of a senate and a house of representatives.”

So the board of regents is not a legislature. It is an executive agency, comparable to the attorney general or the secretary of state. Executive agencies are supposed to carry out legislative policy, not countermand it.

What was the view of the voters who ratified the 1972 state constitution? One clue comes from a famous taxpayer-financed newspaper insert promoting the constitution. It said that the regents’ power was to “supervise education” and “coordinate education.” Nothing about broad public policies―on firearms or anything else.

But as the Montana Supreme Court usually does, it ignored such documents and relied on the 1972 constitutional convention transcript. This is a risky course, because in 1972 the attitudes of the convention delegates often varied from those of the wider electorate. Ironically, though, even that transcript partly cuts against the court’s decision: It mentions the need for MUS to respond to the people rather than “the growing power of the centralized, bureaucratic state.” This argues for leaving policy questions to a legislature elected for short terms rather than a bureaucratic agency appointed for long terms.

Toward the end of its opinion, the court claimed that the regents’ firearms ban was an educational decision: “The presence of firearms on MUS campuses presents an unacceptable risk to a safe and secure educational environment.”

That conclusion is dubious: Mass shootings tend to happen in so-called “gun free zones” where law-abiding people are disarmed. But more importantly, the argument is worthless because you can justify almost any rule by claiming it somehow promotes education.

All the justices on the court voted for this misguided decision. Keep that in mind when they run for re-election.