Report

Shooting on Private Property in Montana

by

Gary Marbut, president, Montana Shooting Sports Association
January, 2006

Summary

The discharge of firearms on private property in Montana is a normal and legal activity, and an accepted facet of Montana culture and heritage, as long as such discharge is not done with careless disregard for the safety of others.

Qualifications to comment

The author of this report is the president of the Montana Shooting Sports Association, the primary advocate for hunters and guns owners in Montana; an officer and director of the Western Montana Fish and Game Association, Montana's oldest (est. 1911) and largest regional organization of sportsmen and women in Montana; a member of the International Association of Law Enforcement Firearms Instructors; a veteran and certified pistol and rifle instructor; certified by the State of Montana as a firearms instructor; author of the book Gun Laws of Montana; accepted as an expert witness in federal and state courts concerning matters of firearm safety and self defense; the author of and chief proponent for many laws enacted by the Montana Legislature concerning firearms and firearm use; and a former appointee to the Governor's Advisory Council concerning Montana concealed weapons permits.

The question

Some question may exist about the propriety and legality of private property owners shooting on their private property.  This discussion will not address safety issues, except to say that it is generally accepted that a person shooting a firearm is responsible for where his bullet lands, and is responsible to conduct his shooting in such a way that other people and property are not placed at significant risk.  Thus, the discussion turns to what is common and accepted practice in Montana, and what may be legal and illegal under existing laws.

The Montana Constitution

The chief articulation of civil authority in Montana is the Montana Constitution.  When the people of Montana formed and enfranchised their state government, they adopted a constitution to pool their authority and permissions, and their reservations of authority.  Important to this discussion is the axiom that the Montana people reserved certain powers and prerogatives to themselves, a declaration that in certain areas the created government may not tread.

Right to keep and bear arms.  This declaration of governmental exclusion includes the individual right to keep and bear arms reserved by the people to the people in Article II, Section 12.

There are features of this reserved right worth comment.  Clearly this right is declared to be a right of individual citizens ("any person") - a right every individual may claim for himself or herself.  Also, the framers of this right overtly used the words "may not be called into question."  This was intended as the highest possible bar to government intrusion, higher, for instance, than a compelling state interest.

It is also worth commenting on the cultural content and underpinnings of this reserved right.  The exclusion of carrying concealed weapons from this reservation of right is a reflection of the culture of the time of adoption of this provision, adoption both originally in 1889, and again in 1972.  Especially in 1889, it was a cultural norm that an honest citizen carrying a firearm would not conceal the firearm - would carry it in the open where others would be informed of the holder's possession of the firearm.  This cultural ingredient is noted because the reservation of this right is also laden with other cultural implications, including the right to shoot.

The Maxims of jurisprudence declare at 1-3-213, M.C.A.:  "Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use."  By this standard, it must be presumed that when the people of Montana reserved to themselves the right to "keep or bear arms", they also reserved the essentially included right to shoot firearms.

Right to property.  The word "property" is mentioned in the Montana constitution 20 times.  Property and property rights are important in Montana.  The mention in the Montana Constitution most significant to this discussion is found at Article II, Section 3.  In significant part, this Section says:  "All persons have certain inalienable rights [including] the right to acquiring, possessing and protecting property....  In enjoying these rights, all persons recognize corresponding responsibilities."

Pursuant to this discussion, what of the right of a property owner to shoot on his property versus the rights of neighbor property owners to be undisturbed, to be protected from loss of value, or to be free from anxiety?  While these questions are not addressed directly in the Montana Constitution, they are addressed affirmatively or by absence in the laws enacted by the Legislature.  Let us turn to those laws.

Montana Laws

Montana laws express the will, culture and ethic of the public, because they are enacted by the representatives of the people in a process specified in the Montana Constitution.  As long as these laws are not in conflict with the Montana Constitution, they then elaborate and expand upon the precepts of the Constitution.  They flesh out and give detail and form to the powers and reservations contained in the Constitution.

Shooting and shooting ranges.  Certainly, the laws of Montana contain many examples of statutes which support the right of citizens to possess and use firearms.

Also, there are laws restricting firearms possession and use in other states which have not been adopted in Montana, not because they are secret or unknown and not by accident, but because it is not the will of the people of Montana.  These restrictions absent in Montana include:  No registration of firearms; no registration of firearm owners; no permits required to buy firearms; no permits required to own firearms; no permits required to possess firearms; no permits required to transport firearms; no permits required to buy ammunition; no storage requirements for firearms or ammunition; no state waiting period for firearm purchase; no limit on the firearms a person may buy in a specified period; no sales tax on firearms or ammunition; no personal property tax on firearms or ammunition; no limit on the number of firearms a person may own; no limit on the number of firearms a person may keep at home; no "arsenal license" required for storage of multiple firearms; no gun locks required by law; no state background check for firearm purchase; no regulation of private firearm sales between individuals; no legal duty to retreat or flee if attacked; no permits needed to operate a shooting range outside cities; no permit required to carry concealed weapons outside cities; no licenses, permits or registration to own machine guns; no licenses, permits or registration to own silencers; no restrictions on firearm type or caliber for general game hunting; no regulation of gun shows or firearm sales at gun shows; no permits for gun shows; virtually no restrictions to shooting on public or private lands outside cities.

Montana law has specifically addressed shooting ranges.  Before discussing these laws, it may be helpful to define what constitutes a shooting range.  A shooting range is a place where people shoot, and which may also have the advantage of a location which lends itself to, or has improvements that augment, safe shooting.  There is no specific definition of a shooting range in Montana law.  As with the other laws mentioned above which Montana does not have, this is not an oversight.  It is because there is historically such a wide variety of places in Montana where people shoot that the term does not lend itself readily to definition.  And, as with other items common in our culture, we know what it is, just as we know what the "Moon" is.  A shooting range is a place where people shoot.  While Black's Law Dictionary defines "shoot" (no surprise in that definition), it does not contain any definition of "shooting range".

To the extent that Montana law does address shooting ranges, the law is protective of shooting ranges.  The Legislature has declared the public policy of protecting shooting range locations at 76-9-101, M.C.A.  Recognizing that shooting makes noise, and recognizing a Montana cultural tolerance for noise from shooting, the Legislature has exempted shooting ranges from any state noise standards at 76-9-102, M.C.A.

How then are Montanans protected from possible abuses of the right to possess and use arms, which includes the right to shoot?  While self defense is allowed, murder, assault and endangerment are punishable.  While shooting outside city limits is allowed, shooting inside city limits is not, except for self defense or at an approved shooting range.

So, while Montana law does place some restrictions on the use of firearms, and shooting on private property would be considered use of a firearm, these restrictions are few, and the restrictions existing deliberately do not include many restrictions that may be found in the laws of other states.  Further, Montana laws are overtly protective of shooting and shooting ranges.

Property rights.  What about property rights?  More specifically, what about the property rights of a person who wishes to shoot on his private property versus the rights of a neighbor who doesn't understand or doesn't like shooting, or who is not acquainted with the shooting culture of Montana?  What about the "corresponding responsibilities" for property rights mentioned in the Montana Constitution?

Certainly property owners have a right to be safe on their property.  There may be, however, a difference between actual safety and a perception of safety.  With few exceptions, the law does not protect people from their perceptions, only from reality.  The "corresponding responsibilities" of a property owner shooting on his property is to not place neighbors at risk of actual harm.

Any persons who don't understand shooting, or the culture of shooting in Montana, are referred to the "Code of the West", a caution adopted by a number of western counties, including Gallatin County of Montana.  The Code warns newcomers wishing to locate in rural areas of the county not to assume that their rural road will be plowed immediately after every snowfall, that a farmer's field treatments may raise dust that will drift across the property line, that a rancher's cows may moo on the other side of the property-line fence all night, that if there is an emergency it may take an ambulance, fire truck or sheriff's deputy a while to respond, that rural areas may be subject to uncontrollable wildfires, and more.  Basically, the Code declares, people living in rural areas are and must be more independent, self-regulating and tolerant of local practices and customs than their city-dwelling cousins.  If it doesn't already, the Code ought to warn newcomers to rural lifestyle that rural neighbors commonly shoot in Montana.

Instead of causing fear, neighbors who shoot should give the newcomer the comfort of knowing that somebody nearby is in a position to be able to help defend the newcomer from a rabid animal, or the rare two-legged predator.  It should also provide the newcomer an opportunity to learn something of the culture into which they have moved.

In response to one property owner's expressed concern about shooting on adjoining property as a part of hunting, the Legislature affirmed the right of property owners to hunt on their own land with 87-2-121, M.C.A.

Conclusion

A property owner in Montana clearly has the right to shoot on his own property, without interference from any government entity.  This right is protected in several ways.  Such property owner also has a responsibility to conduct his shooting in such a way that he does not carelessly put his neighbors at risk.  This is both the law and culture in Montana.