Comment sent to the Montana Board of Regents and the Commissioner of Higher Education
by the Montana Shooting Sports Association
April 7, 2021
Concerning implementation of HB 102 and campus carry

Dear Regents,

This message is official comment concerning the Board's pending implementation of House Bill 102 of the 2021 Montana legislative session.

First, an introduction is in order.  The Montana Shooting Sports Association (MSSA) is the primary political advocate for Montana firearm owners.  MSSA was also the lead proponent for HB 102 before the Legislature.  MSSA is a nonprofit corporation and has members in all Montana communities.

I wrote HB 102, as well as the campus carry bills introduced in previous sessions of the Legislature.  I am also the author of Gun Laws of Montana, a trade paperback book now in its Fifth Printing and the accepted reference on that subject.  Further, I am a veteran firearms safety instructor and accepted as an expert in state and federal courts concerning firearm safety, self defense, and related topics.

Some commentors may urge the Board to litigate the constitutionality of the campus carry provision of HB 102, based on the authority allowed the Board in Article X of the Montana Constitution to manage the affairs of the university system.  This issue is addressed in Section 3(1) of HB 102 which says:  " (1) Nowhere in Article X, section 9(2)(a), of the Montana constitution is any power granted to amend, suspend, alter, or abolish the Montana constitution, nor is any power granted to affect or interfere with the rights the people have reserved to themselves specifically from interference by government entities and government actors in Article II of the Montana constitution."  This issue is also addressed by Section 5 of HB 102.

In addition, the HB 102 Sponsor addressed this question in his response to a Legal Review Note about HB 102 by the Legislative Services Division.  That Sponsor's response is a part of the legislative history of HB 102 and is attached as a part of this comment.

This leads to the question, "What conduct may the Board regulate under the law created by HB 102?"

First, it is useful to note that the Board has no authority to create criminal sanctions or restrictions that apply to the general public.  The Board does have authority to adopt policies that apply to two classes of people, university system employees and university system students.  These authorities will necessarily only apply when people of these two classes are on campus - present on property that is under the authority of the Board.

Then, the refined question posed to the Board becomes, "In what ways may the Board apply its authority to regulate employees and students on campus?"

The answer to this question is specifically detailed in Section 6 of HB 102.

It may be useful to note that the limitations on Board authority in HB 102 apply specifically to a "person eligible to possess a firearm under state or federal law."  Thus, persons not eligible to possess firearms are subject to more restrictive policy adopted by the Board.  Further, for a person to be subject to the policy limitations in Section 6 of HB 102, the person must also meet the minimum safety and training requirements of 45-8-321(3) (attached).

In the final distillation of the authority allowed the Board under HB 102, the Board may adopt policies that apply to employees and students on campus, any such policies are strictly limited to the list contained in Section 6(2), but only if the employee or student is eligible to possess firearms and meets the minimum safety training requirements specified in law.

HB 102's Section 6(2) is very specific about what conduct the Board may regulate for these two classes of qualified people on campus.

This dramatically narrows and focuses the task the Board has to fashion a policy consistent with HB 102.

Here is the list in Section 6(2) of HB 102, which is the limit of what the Board is allowed regulate for qualified employees and students on campus:

(a) the discharge of a firearm on or within university system property unless the discharge is done in self-defense;
(b) 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;
(c) the pointing of a firearm at another person unless the lawful possessor is acting in self-defense;
(d) the carrying of a firearm outside of a domicile on campus unless the firearm is within a case or holster;
(e) 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;
(f) 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;
(g) 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 abuse;
(h) the possession of a firearm at an event on campus where campus authorities have authorized alcohol to be served and consumed; and
(i) the possession of a firearm at an athletic or entertainment event open to the public with controlled access and armed security on site.

The Board's new firearm policy, to be consistent with HB 102, will contain no provisions limiting qualified persons that are more restrictive than what is on this list.  It will likely be a simple restatement of this list, although the Board is allowed to adopt a policy less restrictive than this list.

A restatement of this list with some comment and explanation is attached for the Board's consideration and use.

Please feel free to contact me at 549-1252 or to discuss any of this.


Gary Marbut, president
Montana Shooting Sports Association
Author, Gun Laws of Montana

Attached files:

Sponsor's Legal Note Comment

Safety Training
DRAFT Campus Policy