dissenting.
*319I dissent from the Court’s back-handed analysis of the Montana Constitution. The Court characterizes the question presented as solely one of whether application of the weapon enhancement statute, § 46-18-221, MCA, violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. In framing the issue thusly, the Court overlooks the fact that Zabawa claims that the weapon enhancement statute violates both the Fifth Amendment of the United States Constitution and Article II, Section 25 of the Montana Constitution.
The Court limits its analysis of Zabawa’s double jeopardy claim to the Fifth Amendment on the basis that Zabawa failed to claim greater protection under the Montana Constitution than under the Fifth Amendment. In Justice Nelson’s concurring opinion he agrees with this reasoning and asserts that the absence of “persuasive authority and reasoned argument” in Zabawa’s Montana constitutional claim prohibits the Court from addressing an otherwise laudable distinction between the Montana Constitution and the United States Constitution.
Neither the Court’s nor Justice Nelson’s approach withstands scrutiny. In challenging the weapon enhancement statute, Zabawa clearly relied on both the Fifth Amendment and the Montana Constitution, Article II, Section 25. Accordingly, Zabawa raised an issue as to what protections are afforded under Article II, Section 25 of the Montana Constitution. While recognizing that Zabawa did invoke the Montana Constitution, the Court takes the position that we are somehow bound by defense counsel’s interpretation of Article II, Section 25, as being co-extensive with the Fifth Amendment. I disagree entirely. Since counsel has raised and relied upon a provision of the Montana Constitution, it is incumbent upon this Court to interpret the meaning of that provision regardless of whether we agree with counsel’s interpretation or not.
As mentioned above, the Court purports to interpret only the Fifth Amendment and not the Montana Constitution. However, unless the Court is completely ignoring the fact that Zabawa invoked Article II, Section 25, as well as the Fifth Amendment, we have to assume that the Court, sub silento, addresses the state constitutional issue by interpreting Article II, Section 25, as co-extensive with the Fifth Amendment and that it is therefore “bound” by the double jeopardy interpretations of the United States Supreme Court. Despite its protestations to the contrary, the Court has, by necessary implication, interpreted Article II, Section 25, as being co-extensive with the Fifth Amendment.
*320If, as I believe, Article II, Section 25, in contrast to the Fifth Amendment, actually affords some protection against multiple punishments, it is time that we stop perpetuating this case-by-case line of authority to the effect that Article II, Section 25, and the Fifth Amendment are co-extensive. It is fast becoming a self-fulfilling prophecy.
I vehemently disagree with the proposition that we are bound to interpret our constitutional prohibition against double punishment in the same fashion that the United States Supreme Court has interpreted the Fifth Amendment to the United States Constitution. In particular I disagree with the interpretation that multiple punishments for the same offense are not prohibited by the Double Jeopardy Clause if that is what the legislature clearly intended.
Not until State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250, has this Court refused to distinguish protections afforded under the Montana Constitution from those afforded under the United States Constitution for the sole reason that an appellant failed to claim greater protection under the Montana Constitution. In Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380, which involved the constitutionality of applying a new statutory scheme to lump-sum payments under the Workers’ Compensation Fund, the appellant did not argue that the Montana Constitution’s contract clause afforded her any greater protection than the United States Constitution’s Contract Clause. Nevertheless, the Court recognized that the State Constitution provides protection of rights separate from the protection afforded by the Federal Constitution. Buckman, 730 P.2d at 384 (citing State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254-55; Pfost v. State (1985), 219 Mont. 206, 215, 713 P.2d 495, 500-501 (overruled on other grounds); Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).
The Buckman Court examined the Montana contract clause before examining the United States Constitution’s Contract Clause to ascertain if there were independent state grounds to resolve the issue. Buckman, 730 P.2d at 384. Acknowledging that the Court in the past had generally interpreted the state and federal contract clauses as interchangeable guarantees of individual rights, the Court nevertheless chose to interpret the Montana contract clause independently of the United States Constitution’s Contract Clause. The appellant in Buckman did not claim greater protection under the Montana Constitution and yet the Court analyzed the contractual implications on *321state constitutional grounds before turning to federal interpretations of constitutional protection. Buckman, 730 P.2d at 384.
Whether or not an appellant claims greater protection under the Montana Constitution than under the United States Constitution in any given case should not be dispositive of whether this Court examines the individual rights guaranteed under the Montana Constitution independently of the guarantees in the United States Constitution. The Montana Supreme Court has the inherent power and obligation to interpret the Montana Constitution and to protect individual rights. See, e.g., State v. Finley (1996), 276 Mont. 126, 915 P.2d 208.
Not only does this Court have the inherent power to interpret the Montana Constitution, but it is also free to interpret the State Constitution’s provisions differently than the United States Supreme Court interprets similar provisions in the United States Constitution. As noted by the Court in Buckman: “[federal cases cited are relied on for their analytical persuasiveness but in no way mandate our decision.” Buckman, 730 P.2d at 384. In other words, in interpreting the State Constitution, we are not “bound” by federal case law interpreting similar provisions in the United States Constitution.
As I stated in my dissent to Finley in arguing against applying the United States Supreme Court’s pronouncements concerning the Fifth Amendment right against self-incrimination to Article II, Section 25 of the Montana Constitution:
As long as we guarantee the minimum rights guaranteed by the United States Constitution, we are not compelled to march lock-step with pronouncements of the United States Supreme Court if our own constitutional provisions call for more individual rights protection than that guaranteed by the United States Constitution.
Finley, 915 P.2d at 224 (citing State v. Sierra (1985), 214 Mont. 472, 476, 692 P.2d 1273, 1276).
This Court in the past has refused to “march lock-step” with the United States Supreme Court where constitutional issues are concerned, even if the applicable State Constitution provisions are identical or nearly identical to those of the United States Constitution. State v. Johnson (1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254. In Johnson, this Court held that a defendant had invoked his right to counsel under the Montana Constitution when he asked an arresting officer, after being read his rights, if he had “the right to address somebody,” and subsequently stated that he “would like to talk to somebody.” This holding deviated from the United States Supreme Court’s decision in Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. *3222560, 61 L.Ed.2d 197, which held that only a specific request for counsel invokes a defendant’s constitutional right to counsel. In Johnson, the Court recognized that in previous criminal law decisions the Court had held that when a Montana constitutional provision tracts the federal counterpart (e.g., privilege against self-incrimination), the decisions of the United States Supreme Court delineate the maximum breadth of the right. Nevertheless, the Court noted that in the civil arena it had,
forged ahead independent of the United States Supreme Court in civil matters which involve constitutional issues, even where our constitutional provisions are identical or nearly identical to those of the United States Constitution.
Johnson, 719 P.2d at 1254. Thus, in Johnson, the Court saw no reason not to pursue its own resolution of constitutional matters in criminal cases, finding that “[w]here state and federal constitutional provisions are identical, each is enforceable in its own respective sphere ....” Johnson, 719 P.2d at 1255 (citing Emery v. State (1978), 177 Mont. 73, 79, 580 P.2d 445, 448; Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).
Thus, states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions.
Johnson, 719 P.2d at 1254 (citing City and County of Denver v. Nielson (Colo. 1977), 572 P.2d 484). The Court went on to say that federal rights are considered minimal and a state constitution may be more demanding than the equivalent federal constitutional provision and this is true even though our state constitutional language is substantially similar to the language of the United States Constitution. Johnson, 719 P.2d at 1254-55 (citing Deras v. Myers (Or. 1975), 535 P.2d 541, 549 n.17; Pfost, 713 P.2d at 500-501 (overruled on other grounds)).
Other state courts have declined to follow the United States Supreme Court’s interpretation of double jeopardy protection where its interpretation does not adequately preserve the rights and interests sought to be protected. See Hawai’i v. Lessary (1994), 865 P.2d 150. The Hawai’i Supreme Court held that it was not bound to give the Hawai’i Constitution the same interpretations as those given under the United States Constitution despite the fact that the Hawai’i double jeopardy clause was virtually identical to the United *323States Constitution’s Double Jeopardy Clause. Lessary, 865 P.2d at 154. The Hawai’i Supreme Court interpreted the Hawai’i Constitution as affording the defendant greater protection against multiple prosecutions than the defendant would have been afforded under United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. The Hawai’i Court agreed with the dissenters in Dixon that individuals should be protected against multiple prosecutions even when multiple punishments are permissible under the “same elements” test and therefore the Court held that the decision in Dixon did not adequately protect individuals from being “subject for the same offense to be twice put in jeopardy.” Lessary, 865 P.2d at 155.
Just as the Hawai’i Court declined to adopt federal interpretations of the Double Jeopardy Clause in Dixon, I would decline to adopt the United States Supreme Court’s interpretation of the “multiple punishment” element of the Double Jeopardy Clause in Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535. Instead, I interpret the double jeopardy clause of Article II, Section 25 of the Montana Constitution, as providing substantive protection against multiple punishments irrespective of any legislative enactments.
In Hunter, the United States Supreme Court upheld two sentences imposed in a single trial under two separate state statutes, one that punished armed robbery, and one that punished “armed criminal action.” Hunter, 459 U.S. at 362, 103 S.Ct. at 676. Using the test from Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, the Court held that the statutes were presumptively the “same offense” because neither provision required proof of a fact which the other did not, but the Court also found that the state legislature had nevertheless specifically authorized cumulative punishment under the two statutes. Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679-80.
The Court held that the Double Jeopardy Clause of the Fifth Amendment merely prevents the sentencing court from prescribing greater punishment than the legislature intended. Hunter, 459 U.S. at 366, 103 S.Ct. at 678. In interpreting the Fifth Amendment, the Court in Hunter held that, where legislative intent is clear, cumulative punishments imposed in a single trial do not violate the Double Jeopardy Clause.
In my view, we do a grave disservice to the framers of the Montana Constitution when we hold that a constitutional provision means nothing more than what the legislative branch intends it to mean. Constitutional guarantees are not mere vessels to be left empty or *324filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Contrary to this Court’s characterization of the issue, the question is not whether Article II, Section 25 of the Montana Constitution provides “greater protection” from double punishment than does the Fifth Amendment, the question is whether it provides any protection independently of what the legislature chooses to provide.
This Court, in following the lead of the United States Supreme Court in Hunter, has, in effect, held that the question of whether cumulative punishments for the same offense are permissible is merely a question of legislative intent. In other words, there is no constitutional prohibition whatsoever. In the view of this Court, the question of whether multiple punishments are permitted is resolved through statutory rather than constitutional interpretation. The Court has rewritten the constitution so that it proscribes multiple punishments for the same offense unless the legislature provides to the contrary. The legislative intent exception swallows the constitutional guarantee. I reject the notion that our constitutional guarantee against multiple punishments for the same offense means nothing more than what the most recent legislative body has decreed it to mean.
The question of whether the weapon enhancement provision violates the constitution is not a question of legislative intent. Rather, it is a question of whether enhancement constitutes punishment for the “same offense” as the underlying offense of felony assault. This requires application of the Blockburger test to determine whether the elements of the weapon enhancement statute are subsumed within the elements of the felony assault statute. The “element” or constituent part of the weapon enhancement statute, § 46-18-221, MCA, is singular; that is, it merely requires that the defendant display, brandish, or use a firearm, destructive device, or other dangerous weapon in the commission of any offense. The requirement that he be convicted of “any offense” is merely a prerequisite of the sentencing enhancement.
The underlying charge in this case was felony assault under § 45-5-202(2)(b), MCA, which provides as follows:
(2) Aper son commits the offense of felony assault if he purposely or knowingly causes:
(b) reasonable apprehension of serious bodily injury in another by use of a weapon ... .
*325Thus, given the charge of felony assault, the State was required to prove that Zabawa used a weapon to cause reasonable apprehension of serious bodily injury. Use of a weapon is the exact same conduct required to enhance Zabawa’s sentence under § 46-18-221, MCA. Because the State would not be required to prove any additional facts in order to have Zabawa’s sentence enhanced, it is apparent that the weapon enhancement statute is subsumed within the offense of felony assault.
Under the Blockburger test, when the same act violates two different statutes, the inquiry for determining if there are two offenses or only one is “whether each provision requires proof of a fact which the other does not .’’Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Clearly, the weapon enhancement statute does not require proof of a fact which is not required under the charge of felony assault. Since the weapon enhancement statute is subsumed within the felony assault charge, the two are the same for double jeopardy purposes and punishment cannot be had for both.
Not only is this Court not required to “march lock-step” with the United States Supreme Court’s interpretation of the constitutional protection against double jeopardy in Hunter, but where a federal interpretation fails to afford adequate constitutional protection and is also subject to faulty analysis, this Court should turn to the Montana Constitution in an effort to afford adequate protection on independent state grounds. The Supreme Court’s rule in Hunter, that legislative intent controls the parameters of the protection of the Double Jeopardy Clause, rests on unconvincing precedent.
Hunter relied primarily on two United States Supreme Court decisions, one of which is Whalen v. United States (1980), 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715. In Whalen, the defendant was convicted of first degree “felony murder” on the theory that he murdered his victim during the perpetration of a rape. He was also convicted of the rape. The United States Supreme Court held that consecutive sentences could not be imposed for both crimes on the ground “that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape ....” Whalen, 445 U.S. at 693, 100 S.Ct. at 1438. Further, “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” Whalen, 445 U.S. at 689, 100 S.Ct. at 1436-37 (emphasis added). “This is not to say that there are not constitutional limitations upon this [legislative] power.” Whalen, 445 U.S. at 689 n.3, 100 S.Ct. at 1436 *326n.3 (citations omitted). Contrary to the suggestion in Hunter, Whalen does not hold that had Congress intended consecutive punishments for both the rape and the murder it would have been constitutionally permissible.
Hunter also relied on Albernaz v. United States (1981), 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275. The dissent in Hunter correctly points out that the majority relied on dicta in Albernaz for the basis of its holding that cumulative punishment does not violate the Constitution so long as it is authorized by the legislature. Hunter, 459 U.S. at 371 n.3, 103 S.Ct. at 680 n.3 (Marshall, J. dissenting). In Alhernaz, the Court held that multiple punishments for convictions for conspiracy to import marijuana and conspiracy to distribute marijuana did not violate the Double Jeopardy Clause because Congress intended to permit the imposition of consecutive sentences under the two statutes at issue. Albernaz, 450 U.S. at 344, 101 S.Ct. at 1144-45. Albernaz, like Blockburger, involved a case where one transaction resulted in the defendants’ convictions for more than one crime. The crimes were distinguishable on the basis that each required an element the other did not. The offenses were not subsumed one within the other. Thus, Albernaz presented a different situation than Hunter or the present case wherein one of the statutes (Missouri’s “armed criminal action” statute and Montana’s dangerous weapon enhancement statute) is subsumed within the other. The issue in Hunter and in the case before us is whether the double jeopardy prohibition precludes punishing a defendant under a separate statute whose only element is a necessary element of the underlying crime. In light of its misapplication of precedent and its conclusion that the constitutional prohibition against multiple punishments is merely a matter of legislative intent, I would hold that Hunter is not persuasive, and certainly not binding, precedent as far as Article II, Section 25 of the Montana Constitution is concerned. Instead I would hold that the Article II, Section 25 prohibition against multiple punishments has inherent meaning, irrespective of any expression of legislative intent. The double jeopardy clause in Article II, Section 25, limits the power of all branches of government, including the legislature. Whether the legislature intends multiple punishments or not, as a matter of state constitutional law, such cumulative punishment is proscribed under the double jeopardy clause.
If weapon enhancement of Zabawa’s sentence for assault “with a weapon” does not constitute double punishment for the same offense, I cannot envision any circumstance which would.
*327II
Even assuming, arguendo, that the Court is correct in abdicating its responsibility to the legislature to interpret the state constitution, it should only do so when the expression of legislative intent is clearly indicated. Hunter, 459 U.S. at 366, 103 S.Ct. at 678.
I seriously question whether the legislature, in enacting § 46-18-221, MCA, clearly intended to apply weapon enhancement to an offense such as this. Section 46-18-221, MCA, on its face, applies to “any offense.” Literally, there is no question but that, this all encompassing language includes felony assault. However, since the legislature failed to distinguish between offenses which do not require use of a weapon and those which do, I question whether it is “clear” that the legislature intended to apply weapon enhancement to an offense which itself requires proof of a weapon.
This Court has already had occasion to decide whether the phrase “any offense” in § 46-18-221, MCA, means literally “any” offense and we held that it did not. In State v. Trimmer (1985), 214 Mont. 427, 694 P.2d 490, we held that “any offense” applies to felonies but not to misdemeanors since an enhancement of two to ten years in the state prison would be internally inconsistent with the definition of a misdemeanor as an offense which is punishable by imprisonment in the county jail. Thus, Trimmer establishes that “any’ does not literally mean “any” offense; it means any “felony offense.”
The majority rejects the notion that Trimmer stands for the proposition that the “any offense” language in § 46-18-221(1), MCA, is ambiguous and claims that the Court in Trimmer interpreted the weapon enhancement statute according to its plain language. However, the majority does not interpret the weapon enhancement statute solely according to its “plain language.” Rather it resorts to § 45-2-101(41), MCA, which defines a misdemeanor offense as one which is punishable by imprisonment in the state prison for a term of one year or less to conclude that “any offense” only applies to felony offenses. Reading the weapon enhancement statute in conjunction with this state’s constitutional guarantee against multiple punishment does not deviate from a plain reading of the statute any more than does a reading in conjunction with the statutory definition of misdemeanor.
I submit that, if the definition of misdemeanor compels a narrowing of the phrase “any offense,” certainly Article II, Section 25’s prohibition against double punishment demands the same deference. *328That is, that “any offense” means any offense which does not itself require use of a weapon.
In determining whether the legislature intended to impose cumulative punishments for the same conduct, the United States Supreme Court has consistently relied on the test of statutory construction stated in Blockburger. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Ball v. United States (1985), 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746; Whalen, 445 U.S. at 692, 100 S.Ct. at 1437-38.
Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.
Whalen, 445 U.S. at 692, 100 S.Ct. at 1438.
In Ball, the Court examined the statutory language and the legislative histoiy and held that Congress did not intend a convicted felon caught with a weapon to be punished under separate statutes, one for receiving a firearm, and one for possessing it. Applying the Blockburger rule, the Court found that proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon and that, therefore, Congress did not intend to subject felons to two convictions. Ball, 470 U.S. at 862, 105 S.Ct. at 1672. Because one offense was entirely subsumed within the other, the Cotut presumed that Congress did not intend cumulative punishments for the same offense.
Another canon of statutory construction used by the United States Supreme Court to divine legislative intent identifies the social evils sought to be addressed by each offense. See, e.g., United States v. Woodward (1985), 469 U.S. 105, 109, 105 S.Ct. 611, 613, 83 L.Ed.2d 518, 522 (currency reporting and false statement statutes directed to separate evils); Albernaz, 450 U.S. 333, 343, 101 S.Ct. at 1137-1144 (separate statutes proscribing conspiracy to import and to distribute marijuana are directed to separate evils). This method assumes the legislature would intend statutes to apply separately only if each statute prohibits a distinct evil.
In the present case, Zabawa is being punished for felony assault under § 45-5-202(2)(b), MCA, because he used a weapon when he purposely or knowingly caused his ex-wife reasonable apprehension of serious bodily injury. If he had caused his ex-wife to suffer reasonable apprehension of bodily injury without use of a weapon he would have been charged with misdemeanor assault under § 45-5-201(l)(d), MCA, punishable by amaximum of a six-month county jail sentence or a $500 fine, or both.
*329The Montana legislature has already addressed the separate evils of assault with or without a weapon and has provided different punishments for the separate offenses. Assault with a weapon is a felony offense carrying the possibility of twenty years in the state prison compared to assault without a weapon carrying a maximum jail sentence of six months. The legislature clearly intended to address these separate crimes by creating two distinct assault offenses. The legislature has already provided punishment for the evil inherent in the use of a weapon in an assault. It cannot be said that the weapon enhancement statute is designed to address any separate or distinct evil. On the contrary, it addresses precisely the same evil, use of a weapon.
The majority has cited the proposition that “we presume that the legislature enacts a law with full knowledge of all existing laws on the same subject....” The United States Supreme Court did not decide Hunter until 1983. Thus, when the Montana legislature enacted the weapon enhancement statute in 1977, it would not have assumed that Article II, Section 25, allows cumulative punishments if so intended by the legislature. Rather, in that pre-Hunter time period, the legislature would have assumed that the state constitutional prohibition against multiple punishments was exactly that: i.e. — an absolute prohibition against multiple punishments for the same offense.
Another indication that the Montana legislature did not intend to circumvent citizens’ rights to be free from double jeopardy is the fact that the legislature has afforded defendants greater protection from double jeopardy in the double prosecution context. In State v. Tadewaldt (1996), 277 Mont. 261, 922 P.2d 463, this Court recognized that § 46-11-504(1), MCA, affords defendants greater protection from double punishment than afforded by the United States Constitution as interpreted in Blockburger. Tadewaldt, 922 P.2d at 467. The fact that the legislature provided Montana citizens greater protection from double jeopardy in the double prosecution context belies the Court’s assumption that the legislature clearly intended to deprive Montanans of protection from “double punishment” through application of the weapon enhancement statute to offenses which necessarily include use of a weapon.
The weapon enhancement statute should, and could, be interpreted to apply only to offenses which do not themselves require proof of use of a weapon. Such an interpretation would leave the statute intact and would not offend the double jeopardy clause.
JUSTICES HUNT and TRIEWEILER join in the foregoing dissent.