An Open Letter to Montana School
Board Members
September 2, 2019
Dear Trustee,
I wish I were writing to you under happier circumstances.
But, I feel it's only fair to warn you that I am on the verge of
advising Montana gun owners to replace every school board member
in Montana at any upcoming election. That would be
unfortunate because I'm sure most school trustees are very good
people.
Why, you ask? Good question. It's because you have
fallen down on the job of supervising the organization that speaks
for you, the Montana School Boards Association. The MSBA has
become overtly, publicly, and dishonestly anti-gun, and has
aligned itself and you with an anti-gun group trying to dictate
Montana policy from New York City. This is simply not
consistent with Montana culture or values.
You haven't heard of this? Let me explain. The
Legislature passed a referendum (LR-130) that will be on the
ballot for a public vote in 2020. The Attorney General is
required by law to craft a short summary of the measure to explain
it to voters. This is called the "ballot statement."
The AG did this after receiving public comment on a draft.
If you haven't heard of it before, LR-130 would strengthen an
existing law that prevents cities and counties from adopting and
enforcing a patchwork of gun control laws across Montana.
This existing law basically implements Article II, Section 12 of
the Montana Constitution.
Your MSBA joined with the New York gun control advocate to file a
lawsuit on your behalf with the Montana Supreme Court, claiming
that the AG's ballot statement was misleading because it failed to
warn the voting public about the impact of LR-130 on schools.
The Montana Supreme Court rejected this argument unanimously,
because it's simply not true. LR-130 will have no impact on
schools. Montana law, at 45-8-361 prohibits guns in schools
unless with school board permission (e.g., hunter education
classes) LR-130 does not affect 45-8-361.
Period. The Supreme Court knows this, which is why it
unanimously rejected this argument made on your behalf by the MSBA
lawyer.
See what I mean about you not adequately supervising the
organization that represents and speaks for you? The MSBA
has joined you with a gun control advocate from New York
(Everytown for Gun Safety) (sic) and has made a dishonest argument
to the Montana Supreme Court on your behalf.
Not only does this make you look incompetent, it also places you
publicly in the gun control political camp. I'm certain
Montana gun owners will find this information relevant. I
suspect they will be glad to have a political target for their
frustration over attempts to impose various gun control schemes
across Montana, a political target of incumbent school board
members.
I will be keeping my ears open to learn what, if anything, Montana
school board members do to get the MSBA back under control, and on
a leash if necessary. Hey, it's your organization. Fix
it, if you can.
Sincerely yours,
Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MtPublish.com
================
Second Open Letter to Montana
School Board Members
September 3, 2019
Dear Trustee,
The Executive Director of the Montana School Boards Association
(MSBA) said in an email to you about my Open Letter to you
yesterday, "The letter is factually inaccurate."
This is just an attempt to escape accountability to you.
However, to be careful and thorough, let's examine essential facts
about what I asserted in my letter yesterday.
Fact # 1: MSBA joined with Everytown for Gun Safety
(properly "Everytown for Gun Safety Action Fund" - from the MSBA
petition) in its petition to the Montana Supreme Court to change
the Attorney General's ballot statement for Legislative Referendum
# 130 (LR-130). Both MSBA and Everytown are listed in the
caption, and in the body, of the petition to the Montana Supreme
Court (MSC) as joint petitioners. That's verified in the
Supreme Court record for the case.
Fact # 2: Everytown is notoriously anti-gun. Everytown
is founded and funded by New York City billionaire Michael
Bloomberg, as are his sibling Mayors Against Illegal Guns and Moms
Demand Action for Gun Sense. Influencewatch.org says
Everytown "is a New York-based lobbying group that advocates for
gun control measures while opposing laws expanding firearms carry
privileges. Michael Bloomberg, the former New York City
mayor and founder and owner of global financial services and media
company Bloomberg LP, is the founder and the primary funder of
Everytown. Bloomberg founded the anti-gun group in April 2014".
(See: https://www.influencewatch.org/non-profit/everytown-for-gun-safety/)
Fact # 3: 45-8-361, M.C.A. is a state law that prohibits
guns in schools unless with the permission of the school
board. This existing law allows a school board to permit
guns in schools for special situations, such as Hunter Education
classes or other purpose deemed appropriate by the board.
This law is the controlling law about guns in schools in
Montana. (See: https://leg.mt.gov/bills/mca/title_0450/chapter_0080/part_0030/section_0610/0450-0080-0030-0610.html)
Fact # 4: 45-8-361, M.C.A. is completely unaffected by
LR-130. LR-130 was placed on the ballot for the 2020
election by House Bill 357 in the 2019 legislative session.
If you care to read the bill, you can see that 45-8-361 is no part
of HB 357 - it is therefore totally unaffected by LR-130.
(See: https://leg.mt.gov/bills/2019/billpdf/HB0357.pdf)
For clarity, 45-8-351 (three-FIFTY-one) is affected by LR-130, but
the different law, 45-8-361 (three-SIXTY-one), is NOT.
Fact # 5: In the MSBA petition to the Supreme Court, MSBA
failed to argue anything about the controlling law in re schools
and guns, 45-8-361. This is a lie, even if a lie of
omission. That is dishonest. It reflects on you as a
principal to your agent, MSBA. An honest approach would have
been to admit the authority of 45-8-361, but then perhaps argue it
is unconstitutional, or that LR-130 amends it by implication even
if not overtly.
Fact # 6: The Supreme Court rejected the MSBA request to
alter the AG-created ballot statement for LR-130
unanimously. How often have you seen the Supreme Court act
unanimously on anything? I suspect that happened in this
case because of the obvious and effective dishonesty
involved. And, because the MSBA was grasping at straws with
a very lame argument. Yes, MSBA had its day in court, urged
on (maybe sucked in would be better) by its apparent buddy
Everytown, but that didn't work out well for MSBA, and the way it
happened doesn't make you or MSBA look very good at all.
Fact # 7: An opposing brief was submitted by 50 Montana
legislators, among those who voted to pass the parent HB
357. HB 357 was passed by a majority of both House (56-43)
and Senate (28-21). Thus, with its Supreme Court petition
MSBA picked the opposite side from the majority of the Legislature
on this volatile issue. The practical effect of this is that
the MSBA will have angered important legislators and thereby
squandered a lot of political capital in this misplaced
effort. That is, your MSBA has practically forfeited some
ability to accomplish some political things school boards may need
because the MSBA made the poor political choice to jump onto this
slippery political slope. With greater wisdom, or better
supervision from you, MSBA might have stayed out of this fray.
So, those are the facts. To restate them, MSBA joined with a
New York gun control advocate to file a lame and possibly
dishonest petition with the Montana Supreme Court, and lost that
effort (and credibility) in a unanimous, adverse, and surprisingly
dismissive decision by the Court. MSBA not only lost, but it
squandered critical political capital (and maybe some actual
money) to do so.
Does that make it sound as if you, a member of the MSBA, have done
an adequate job of supervising and directing your organization?
Sincerely,
--
Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.mtpublish.com
=============================
For Legal Nerds - Parsing the Legal Argument
MSBA and the tooth fairy legal theory
The Montana School Boards Association (MSBA) expresses concern
about Legislative Referendum # 130 (LR-130), asserting that it
would deprive schools of existing legal authority to ban guns
outside of school buildings, such as in school parking lots.
The legal theory supporting this assumption is tenuous, at very
best, and depends on the serial correctness of three implied
assumptions, each of which is strained. If any one of these
three assumptions fail, the legal theory fails.
Since I am not an attorney, I am not allowed to offer a formal
legal opinion or give legal advice. However, since I
understand this area of law better than nearly all attorneys, I
can explain it to anyone interested.
Examining the MSBA expressed concern about LR-130 involves two
specific statutes in the Montana Codes Annotated (M.C.A.).
Those are 45-8-351 and 45-8-361. For brevity, I will refer
to them as 351 and 361. For background, 351 generally limits
the power of local governments to regulate firearms, with narrow
exceptions, and 361 generally prohibits guns in schools unless
with the permission of the local school board.
MSBA concedes (I believe): 1) that 361 is unaffected by
LR-130, and 2) that 361 only applies inside school buildings.
However, MSBA asserts that 351 currently empowers school boards to
regulate or limit firearms outside of school buildings, in parking
lots, athletic fields, playgrounds, and maybe even on school
busses or field trips away from school. It is uncontested
here that schools have separate authority over employees and
students, and may invoke certain policies applicable to students
and staff that do not apply to the general public. To invoke
the legal theory that schools may assert authority contained in
351 to apply to the general public outside of school buildings
requires supporting three strained assumptions, all of which must
hold up to make the legal theory work. Before addressing
each of those three assumptions, let us look at the statute
involved, 351.
Restriction On Local Government
Regulation Of Firearms
45-8-351. Restriction on local government
regulation of firearms. (1) Except as provided in subsection
(2), a county, city, town, consolidated local government, or
other local government unit may not prohibit, register, tax,
license, or regulate the purchase, sale or other transfer
(including delay in purchase, sale, or other transfer),
ownership, possession, transportation, use, or unconcealed
carrying of any weapon, including a rifle, shotgun, handgun, or
concealed handgun.
(2) (a) For public safety purposes, a city or town
may regulate the discharge of rifles, shotguns, and handguns. A
county, city, town, consolidated local government, or other
local government unit has power to prevent and suppress the
carrying of concealed or unconcealed weapons to a public
assembly, publicly owned building, park under its jurisdiction,
or school, and the possession of firearms by convicted felons,
adjudicated mental incompetents, illegal aliens, and minors.
(b) Nothing contained in this section allows any
government to prohibit the legitimate display of firearms at
shows or other public occasions by collectors and others or to
prohibit the legitimate transportation of firearms through any
jurisdiction, whether in airports or otherwise.
(c) A local ordinance enacted pursuant to this
section may not prohibit a legislative security officer who has
been issued a concealed weapon permit from carrying a concealed
weapon in the state capitol as provided in 45-8-317.
https://leg.mt.gov/bills/mca/title_0450/chapter_0080/part_0030/section_0510/0450-0080-0030-0510.html
Subsection (1) states the general prohibition of power of local
governments to regulate firearms. Subsection (2) states the
exceptions to the prohibition. We may disregard (2)(b) and
(2)(c), as they don't apply to this discussion. We may also
disregard the first sentence of (a) as it doesn't apply to this
discussion either. What is relevant to this discussion is
the second (long) sentence of (2)(a). So we may focus on
that, I will paste that here:
"A county, city, town, consolidated local government, or other
local government unit has power to prevent and suppress the
carrying of concealed or unconcealed weapons to a public assembly,
publicly owned building, park under its jurisdiction, or school,
and the possession of firearms by convicted felons, adjudicated
mental incompetents, illegal aliens, and minors."
The MSBA makes no argument that its wish to regulate firearms
outside school buildings is to "prevent and suppress" "the
possession of firearms by convicted felons, adjudicated mental
incompetents, illegal aliens, and minors." So that language
is outside of our discussion too. Now let me restate the
language that IS relevant to this discussion:
"A county, city, town, consolidated local government, or other
local government unit has power to prevent and suppress the
carrying of concealed or unconcealed weapons to a public assembly,
publicly owned building, park under its jurisdiction, or school
..."
Now is time to turn to the three serial arguments that MSBA must
prove to assert that existing law gives school boards authority to
regulate firearms outside school buildings, an authority schools
could theoretically lose under LR-130, a loss which theoretically
gives MSBA reason to favor the gun control side of the LR-130
issue.
FIRST ASSUMPTION - "other local government unit." MSBA
asserts that school districts are an "other local government unit"
which can assert the powers offered in this remaining language of
(2)(a).
Back to Civics 101. The master political entity in Montana
is the State, as created by the people via the Montana
Constitution. All other political entities are authorized by
the State and are called "political subdivisions of the
state." This legally-defined terminology is the common
convention in civics and the state laws.
What are such political subdivisions. Most importantly they
are counties and incorporated cities, but include a host of other
special districts. These include (most importantly) school
districts, but also include a LOT of others, such as mosquito
control districts, irrigation districts, transportation districts,
special improvement districts, tax increment financing districts,
fire districts, grazing districts, weed control districts, urban
renewal districts, and many more.
Because the terminology of "political subdivisions of the state"
is so old, so well known, so well defined, and so commonly used,
it is fair to suppose that if the drafters of 351 had intended
"political subdivisions of the state" they would have used that
terminology in 351. But, they didn't. They chose
instead to use "A county, city, town, consolidated local
government, or other local government unit ..."
It is a presumption in law that the Legislature knows what it is
doing when it enacts laws, that it knows what the words it uses
mean, and that what is selected to include in laws is done for
good reason.
So, why did the Legislature use the language "A county, city,
town, consolidated local government, or other local government
unit ..." instead of the more common and inclusive "political
subdivisions of the state", and what did it intend by that?
To understand that, it is helpful to read through Title 7 of the
M.C.A. (I have). It is one of the longest Titles in Montana
law. It covers local government. It also describes and
enables a very confusing array of different types of cities and
counties that are allowable in Montana. Because of all the
possible permutations allowed for local people to form themselves
into local government, present or future, it suddenly makes sense
that the Legislature would attempt to sweep in the various forms
of cities and counties with the additional generic term of "other
local government unit."
Looking at this the other way around, if the Legislature had
intended "other local government unit" to mean the more inclusive
"political subdivisions of the state", then that would also mean
that the Legislature intended mosquito control districts, grazing
districts, and weed districts to be able to regulate firearms
within the exception allowed by (2)(a). That view, of
course, is absurd.
Therefore, the first assumption by the MSBA, that "other local
government unit" includes and empowers schools, as if the law said
"political subdivisions of the state" is not likely to hold
up. That point of failure would doom the MSBA legal theory.
SECOND ASSUMPTION - parks and public assemblies. Even if
MSBA were successful in asserting that schools are an "other local
government unit", then just what would the relevant language of
351 allow schools to do with that? What, for example, about
school parking lots? Let me restate once more the relevant
language of (2)(a):
"A county, city, town, consolidated local government, or other
local government unit has power to prevent and suppress the
carrying of concealed or unconcealed weapons to a public assembly,
publicly owned building, park under its jurisdiction, or school
..."
In order to simplify this discussion, let us eliminate counties,
cities, towns, and substitute "school district" for "other local
government unit." Later in the relevant language, let us
also eliminate "publicly owned building" and "or school" since it
is admitted that those are already subject to school boards'
authority under 361. What is left reads like this:
"A [school district] has power to prevent and suppress the
carrying of concealed or unconcealed weapons to a public assembly,
or park under its jurisdiction ..."
That's what would effectively be allowed if the MSBA assertion
that schools are an "other local government unit" is correct.
Back to the question of school parking lots. Remember, this
would only apply to the general public, since it's already been
conceded that schools have separate and different authority over
staff and students.
Is a parking lot a "park"? I don't think that will
fly. Black's Law Dictionary defines "park" as "An enclosed
pleasure-ground in or near a city, set apart for the recreation of
the public." Is a parking lot a "public assembly"?
That is equally problematic. Yes, people come and go there,
but they are most commonly passing through, not assembling.
I'd guess it's no better than a coin toss whether the courts would
tolerate an allegation that school grounds outside of a building
constitute either a "park" or a "public assembly." Surely,
common definitions of these terms won't fit. Something more
imaginative will be needed. I grant an argument can be made
in that direction, but the discussions in the Legislature about
legislative intent when 351 was enacted will not support that
argument.
So, the MSBA legal theory will likely also fail with this second
assumption. That failure would doom the legal theory just as
would a failure of the first assumption.
THIRD ASSUMPTION - Montana Constitution. MSBA's legal theory
that schools are an "other local government unit" and can
therefore regulate guns outside school buildings because the areas
outside are a "park" or "public assembly" must also be permissible
under the restrictions in the Montana Constitution.
In Article II, Section 12, the people of Montana have reserved to
themselves the right to keep or bear arms. This very
specific language is a direct bar to action by government entities
or government actors. And, this provision says that this
right the people have reserved shall not be "called in
question." That's pretty strong language.
Curiously, the words "called in question" have never been defined
in court cases, and only once by the Legislature. In 2017,
the Legislature passed Senate
Joint Resolution 11, which defined "called in question" for
the first time in Montana history. According to that
definition, the MSBA legal theory would fail on several counts,
including that it would be a prior restraint, that it would have
unintended consequences, and that it would not be at all narrowly
tailored to meet a proven need. Even if a reviewing court
were to ignore the Legislature's authoritative definition of
"called in question" in SJ11, the court would probably see that
the results of the MSBA legal theory do not pass constitutional
muster.
Thus, constitutionality is the third, serial challenge for MSBA's
legal theory that schools may currently regulate firearms outside
school buildings because of a strained and inventive
interpretation of 351(2)(a).
Suppose for the sake of discussion that one were to assign a 50%
chance that the MSBA legal theory would survive each of these
three sequential steps. That's very generous, in my
opinion. I'd guess each step at about 10% chance of
survival. However, even at 50%, the overall odds of
surviving this series is poor.
Do the math yourself. 50% times 50% times 50%. The
result is 12.5%. Therefore, the MSBA must claim it has a
valid dog in the LR-130 controversy and should get its members
embroiled in a gun control political squabble because there is a
12% chance (very best case) that its inventive legal theory about
current law is correct, and that there is something for schools to
possibly lose from existing law if LR-130 is approved by voters.
Accept this legal theory and we'll move along to the tooth fairy
legal theory.
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