Referendum # 130 was approved by the voters of Montana and
became effective on January 1, 2021. House Bill
102 was finally approved by the Montana Legislature on
February 5, 2021. HB 102 was signed into law by Governor
Gianforte on February 18, 2021. Most of HB 102 has an
immediate effective date.
What changes have been made to Montana laws by LR-130 and HB 102,
and what do those changes permit, prohibit, or require for Montana
gun owners? Those are the questions this discussion will seek
If the reader wishes a more licensed opinion, consult a licensed
attorney or the local county attorney. However, the author of
this discussion wrote both LR-130 (HB 357 of the 2019 legislative
session) and HB 102. This author feels competent to discuss
the ramifications of these two measures.
This discussion of the effects of LR-130 and HB 102 has come to be
longer than intended. However, the author believes that
Montana gun owners want and need a complete understanding of the
laws that apply to them.
Rather than explore the details of LR-130 and HB 102, this
discussion will focus on the effect of the law after LR-130 and
after HB 102. Still, the discussion must begin with a general
explanation of LR-130 and HB 102.
Purpose of LR-130 and HB 102
The Purpose of LR-130 was to remove exceptions from Montana's
"preemption law" that had been abused by some local
governments. Montana has had a preemption law at 45-8-351
since the 1980s, a law that generally prevents local government from
regulating firearms. There have been some exceptions in
45-8-351 to allow local governments some limited authority to
regulate firearms in certain places and for certain people.
Some Montana local governments abused those limited
authorities. The purpose of LR-130 was to remove from the law
the exceptions that had been abused and thereby further restrict the
authority of local government to regulate firearms.
The general purpose of HB 102 is to eliminate dangerous "gun free
zones", those places where only criminals would be armed because of
a government prohibition that only law-abiding gun owners would
obey. HB 102 has four major elements: Permitless carry,
campus carry, restaurant and bar carry, and enhancement of existing
concealed weapon permits (CWP), plus some minor elements.
This discussion must begin with the Montana Constitution. The
right to keep or bear arms (RKBA) is a power the people have
reserved to themselves from government interference at Article
II, Section 12 of the Montana Constitution. This
reserved right clearly applies to individuals, or as the Section 12
specifies, to "any person." The reservation of right is
specified to keep or bear arms in defense of any person's "home,
person, and property, or in aid of the civil power ..."
Section 12 says this right "shall not be called in question."
What "called in question" means is defined by the Legislature in Senate
Joint Resolution 11 of the 2017 legislative session (another MSSA success).
There is an antique cultural relic left over from 1884 when the
Montana Territorial Constitution was adopted that says that the
reserved RKBA may not be "held to permit the carrying of concealed
weapons." This cultural relic was retained when the
Territorial Constitution became the Statehood Constitution in 1889,
and again with the rewrite of the Constitution in 1972. Thus,
as long as this language is in the Montana Constitution, carrying
concealed firearms is a privilege granted by the Legislature and not
within the ambit of the reserved constitutional right.
As matter of historical interest, there are two reasons suggested
for why the framers of the Territorial Constitution included the
concealed carry exception in our RKBA. The first is that in
1884 it was considered culturally appropriate for an honest person
to wear a firearm where it was observable and apparent, and that a
hidden gun implied some nefarious purpose. The second reason
suggested is that post-Civil War there was a lot of sentiment to
prevent freed slaves from possessing arms. Many post-Civil War
laws enforced this disarmament sentiment. Thus, if freed
slaves possessed arms, it was usually wise for them to keep those
arms hidden so as to not attract unwanted attention. Inclusion
of this restriction on the RKBA in the 1884 Constitution may have
been to further efforts to keep freed slaves disarmed and better
expose them to the power of others with arms.
Regardless of the reason, this exception to our Montana RKBA still
exists in the Montana Constitution. This is why what may be
called "constitutional carry" in other states is more properly
called "permitless carry" in Montana.
Finally, there is no exception in the RKBA at Article II, Section 12
for local governments to restrict this right, and no exception for
the university system or the Board of Regents to restrict this
Types of "Carrying"
Because much of LR-130 and HB 102 is about bearing arms, or
"carrying" firearms, it makes most sense to discuss three different
types of carrying. Those are open carry (visible), concealed
carry without a CWP, and concealed carry with a CWP. These
will be referred to as "open", "unpermitted concealed" or
"permitless concealed", and "permitted concealed".
To further define this discussion, the reader should know that
availability of and application process for CWPs remains
unchanged. Plus, Montana recognizes permits issued by other
states if the issuing state does a criminal records background check
before issuing a CWP. And, it is worth restating the definition
of "concealed" in Montana law as it pertains to firearms,
which is "wholly or partially covered by clothing or wearing
apparel." In this context, briefcases, backpacks, and purses
are considered to be luggage and not clothing.
Having established these several parameters, here is what Montana
law will permit, require, or prohibit post LR-130 and post HB 102.
First, except for campus carry (discussed later), LR-130 is
effective now and all parts of HB 102 have an immediate effective
date. So, everything besides campus carry became effective the
moment the Governor signed HB 102.
Local governments have very limited authority to regulate firearms
in any way. More technically, this applies to all
"subdivisions of the state" which includes cities, counties and
districts within or between cities and counties. There are a
lot of these districts which are government entities, such as urban
transportation districts, special improvement districts, school
districts, fire districts, grazing districts, irrigation districts,
and many others.
A city or town may regulate the discharge of firearms.
Additionally, there is a separate state law at 45-8-343
making it illegal to discharge a firearm inside city limits unless
in self defense. Also, after LR-130, 45-8-351
now says, "A county, city, town, consolidated local government, or
other local government unit has power to prevent and suppress the
carrying of unpermitted concealed weapons or the carrying of
unconcealed weapons to a publicly owned and occupied building under
its jurisdiction." This, by itself, doesn't make it illegal to
carry openly or unpermitted concealed into a publicly owned and
occupied building, but it does give local governments the authority
to adopt rules prohibiting this. Local governments have no
authority over carrying by people with CWPs.
While Montana has had permitless carry in 99.4% of Montana since
1991, outside the limits of cities, HB 102 extends that successful
experiment to inside cities. While CWPs are still available
and have additional privileges (discussed below), a CWP is no longer
necessary inside city limits, with a few exceptions. Note that
permitless concealed carry only applies to a person who is "eligible
to possess a firearm under state or federal law." Plus,
permitless concealed carry is not legal, per HB-102-revised
45-8-328, in "portions of a building used for state or local
government offices and related areas in the building that have been
It is no longer illegal or against any government rules to open
carry, carry concealed without a permit, or carry concealed with a
CWP, in a bank, a restaurant with a liquor license, or a bar.
HOWEVER, a private property owner may prohibit firearms on his
property. This includes banks, bars, restaurants, stores, and
a host of other publicly accessible places that are privately
owned. Certainly, any such places will be required to give
"fair notice" of any firearms restrictions, usually by posting
obvious signs. Some other states have laws such that if a gun
carrier should walk past a no-guns sign on private property with a
gun, that is a criminal offense. Not so in Montana.
But, if there is such a sign and private property policy in Montana,
and the property owner or his agent (e.g., an employee) detects that
a person is armed, the property owner or agent can certainly ask the
gun carrier to leave and/or comply with the policy (just like "No
shirt, no shoes, no service."). If the gun carrier should
refuse to comply, then the gun carrier's continued presence becomes
a matter of trespass, which IS a crime. This right of a
private property owner to exclude firearms applies to open carry,
unpermitted concealed carry, and permitted concealed carry.
Enhanced Concealed Weapon Permits
HB 102 declares that people with a valid CWP may not be prohibited
from exercising their CWP except in a list of specified
places. This new law doesn't forbid permitted concealed carry
in this list of places, but says permitted concealed carry may
otherwise be prohibited in these places. NOTE WELL: This
is not a list of "prohibited places" where the Legislature has
forbidden exercise of a CWP. Rather, it is a list of places
where the Legislature has allowed restriction on exercise of CWPs by
another entity that has the authority to impose such a
restriction. These places listed in the new law are:
1. In a correctional, detention, or treatment facility
operated by or contracted with the department of corrections (e.g.,
prisons) or a secure treatment facility operated by the department
of public health and human services (e.g., Warm Springs);
2. In a detention facility (jails) or secure area of a law
enforcement facility (cop shops) owned and operated by a city or
3. At or beyond a security screening checkpoint regulated by
the transportation security administration in a publicly
owned, commercial airport;
4. In a building owned and occupied by the United States
(e.g., federal courthouses);
5. On a military reservation owned and managed by the United
States (e.g., Malmstrom AFB);
6. On private property where the owner of the property or the
person who possesses or is in control of the property, including a
tenant or lessee of the property, expressly prohibits firearms
7. Within a courtroom or an area of a courthouse in use by
court personnel pursuant to an order of a justice of the peace or
8. In a school building as determined by a school board
pursuant to 45-8-361.
The thesis for campus carry is that although the Board of Regents is
given considerable authority in Article
X, Section 9, of the Montana Constitution to manage the
affairs of the university system, it is given no authority
whatsoever to suspend or abolish the rights the people have reserved
to themselves from government interference in Article
II of the Constitution.
The campus carry sections of HB 102 have an effective date of June
1, 2021. After that date, campus authorities may not regulate
the possession of firearms on Montana university campuses if the
firearm possessor is eligible to possess firearms and meets the
minimum safety and training requirements required to apply for a
CWP. That is, a campus carrier doesn't need to actually have a
CWP, but he or she must have satisfied the safety training needed to
at least be eligible to apply for a CWP, safety training as listed
This includes a list of optional types of firearm safety training
that qualify. If a person already has a CWP, the person has
met this criteria and qualifies for campus carry.
The university system is allowed a short and specific list of
regulations it is allowed to impose on people about firearms on
campus. NOTE: As with enhanced CWPs above, this is not a
list of limitations that the Legislature has invoked for on
campus. Rather, it is a limited list of restrictions that the
Legislature believes may be realistically imposed on campus carry by
campus authorities. The Legislature is saying, "Campuses may apply
these restrictions, but no others." This is the list of things
campuses are allowed to prohibit or regulate:
1. The discharge of a firearm on or within university system
property unless the discharge is done in self-defense;
2. The removal of a firearm from a gun case or holster unless
the removal is done in self-defense or within the domicile on campus
of the lawful possessor of the firearm;
3. The pointing of a firearm at another person unless the
lawful possessor is acting in self-defense;
4. The carrying of a firearm outside of a domicile on campus
unless the firearm is within a case or holster;
5. The failure to secure a firearm with a locking device
whenever the firearm is not in the possession of or under the
immediate control of the lawful possessor of the firearm;
6. The possession or storage of a firearm in an on-campus
dormitory or housing unit without the express permission of any
roommate of the lawful possessor of the firearm;
7. The possession or storage of a firearm by any individual
who has a history of adjudicated university system discipline
arising out of the individual's interpersonal violence or substance
8. The possession of a firearm at an event on campus where
campus authorities have authorized alcohol to be served and
9. The possession of a firearm at an athletic or entertainment
event open to the public with controlled access and armed security
Note: As described above, cities are allowed to "prevent and
suppress the carrying of unpermitted concealed weapons or the
carrying of unconcealed weapons to a publicly owned and occupied
building under its jurisdiction." 45-8-351(2)(a). This
may affect campus carry if a campus is inside city limits and if the
city has adopted an ordinance asserting this local authority.
If so, this will only affect inside buildings on campus.
In summary, if you are a student, a campus employee, or a visitor to
campus, if you are eligible to possess firearms, and if you have had
the training required to apply for a CWP, then you may possess a
firearm on campus. Open and unpermitted concealed carry may be
restricted inside campus buildings by a local city ordinance.
Campus authorities are allowed to impose the following
restrictions: You may not remove the firearm from a case or
holster except in your campus domicile (no brandishing or
show-and-tell) or discharge it except in self-defense; you may not
point a firearms at another person except in self defense and you
may not transport a firearm on campus unless in a holster or case;
if you live in campus housing (e.g., dorms), you must have the
permission of your roommate to keep a firearm there and the firearm
must be secured with a locking device when you are not present; if
you have been subject to adjudicated campus discipline because of
violence or substance abuse, campus authorities may withdraw your
ability to have a firearm on campus.
Finally, campus authorities may prohibit firearms at a campus event
where serving and consumption of alcohol is authorized, or at
athletic or entertainment events where access is controlled and
armed security is provided.
It is worth noting that if a person is not a campus employee or a
student, campus officials have no authority over that person.
Campus officials have authority over employees and students because
they can fire employees and expel students, or take lesser
disciplinary measures against them. While it may be courteous
for non-employees and non-students to abide by campus rules while on
campus, there is no penalty in law for someone who is not an
employee or student to not comply with campus policies while on
A person deprived of the right to carry under HB 102 may file a
lawsuit against any government entity in district court. If
the person prevails, the court may award court costs, attorney fees,
HB 102 also repeals an old and unnecessary law that prohibits
carrying firearms on trains.
K-12 school boards may prohibit guns in schools, including open
carry, unpermitted concealed carry, and/or concealed carry.
School boards may also allow guns in schools, such as for hunter
education classes or for armed teachers who meet any criteria
specified by the school board, such as having a CWP or with other
training or conditions.
For technical and legal nerds, there are several ways that
permitless carry could have been created with amendments to existing
Montana law. Here is the way that was accomplished with HB
102. Pre-HB 102, 45-8-316 established the crime of carrying a
concealed firearm. Then, 45-8-317 created a long and
cumbersome list of people who were exempt from the crime created by
45-8-316. Those persons exempt included peace officers, people
outside the limits of a city or town, people with CWPs, and a bunch
more. HB 102 added one simple exception to 45-8-316 saying the
crime of concealed carry doesn't apply to anyone who is eligible to
possess firearms, and then repealed all of 45-8-317 (that long list
of exemptions which would no longer be needed). Because of
that method of getting to permitless carry is why it has been
awkward for some people reading HB 102 to identify where and how
permitless carry was actually achieved in the bill. But, that
was the cleanest way to update the law and accomplish what was
needed. It leaves the resulting law easier for most people to
read and understand.
The author reserves the prerogative to revise this discussion as