House Bill 551
Correcting residual and endemic racism in Montana
Gary Marbut, president
Montana Shooting Sports Association
In 1884, Montana adopted its Territorial Constitution. In
1889, Montana adopted the Statehood Constitution. In 1972, a
substantially revised Montana Constitution was adopted. The
right to keep or bear arms provision in the Montana Constitution
today, found at Article II, Section 12, is essentially unchanged
from what was in the Territorial Constitution of 1884. This
provision currently reads:
Section 12. Right to bear arms. The right of any person to keep or
bear arms in defense of his own home, person, and property, or in
aid of the civil power when thereto legally summoned, shall not be
called in question, but nothing herein contained shall be held to
permit the carrying of concealed weapons.
In 1884, when first adopted, this provision was copied almost
entirely from the Missouri Constitution of 1875, which read:
That the right of no citizen to keep and bear arms in defense of his
home, person and property, or in aid of the civil power, when
thereto legally summoned, shall be called into question; but nothing
herein contained is intended to justify the practice of wearing
concealed weapons. Art. II, § 17.
HB 551 creates a constitutional referendum to offer voters the
opportunity to remove from the Montana Constitution that 1884
Missouri-copied language that says, ", but nothing herein contained
shall be held to permit the carrying of concealed weapons".
It is worth noting that Missouri has removed this restriction from
the Missouri Constitution.
Racism in 1860 to 1890
A very high percentage of Montana immigrants in the 1860s through
1880s came from Missouri, specifically because of the availability
of water transport from Missouri to Montana. These
transplanted Missourians imported not only many of the laws copied
by Montana, but also the pervasive racism and discrimination rampant
so shortly after the U.S. Civil War.
"Jim Crow" laws of that period are very well documented. One
source of examples of laws to prevent racial minorities from
exercising the right to keep and bear arms is contained in the
amicus brief of the African American Gun Association, submitted to
the U.S. Supreme Court in NYSRPA v. Bruen, 597 U.S. ___
(2022). This brief was authored primarily by noted historian,
author, and attorney Stephen P. Halbrook.
From the SUMMARY OF ARGUMENT: " During the
colonial, founding, and early republic periods, slaves and even
free blacks, particularly in the southern states, were either
barred from carrying a firearm at all or were required to obtain a
license to do so, which was subject to the discretion of a
government official. African Americans were not considered as
among 'the people' with the 'right' to 'bear arms.' "
Also: "After the Civil War, the southern states enacted the
Black Codes, which prohibited African Americans from bearing arms
unless they obtained a license,
which an official had the discretion to grant or withhold. No such
requirement existed for a citizen to bear arms."
Another commenter on the "Black Codes" and "Jim Crow" laws enacted
after the Civil War to prevent Blacks from possessing firearms is
legal scholar Dave Kopel. In his 2011 essay, The Dark
Secret of Jim Crow and the Racist Roots of Gun Control, Kopel
details how "Jim Crow is alive and well."
Because the new 14th Amendment forbade any state to deny
"the equal protection of the laws," gun control statutes aimed at
blacks could no longer be written in overtly racial terms.
Instead, the South created racially neutral laws designed to
disarm freedmen. Some laws prohibited inexpensive firearms while
protecting more expensive military guns owned by former
Confederate soldiers. Meanwhile, other laws imposed licensing
systems or carry restrictions. As a Florida Supreme Court justice
later acknowledged, these laws were "never intended to be applied
to the white population" (Watson v. Stone, 1941).
Southern courts generally upheld these laws. In the 19th and 20th
centuries, these court precedents played a substantial role in
maintaining white supremacy by facilitating unofficial--but
government-tolerated--violence against blacks and civil rights
advocates. Today, these racist laws are the foundation of
continuing infringements of the Right to Keep and Bear Arms.
In her 1892 pamphlet Southern Horrors: Lynch Law in All Its
Phases, the journalist Ida B. Wells argued that firearms were
an essential tool in preventing the deadly white supremacist
violence that she chronicled. "Of the many inhuman outrages of this
present year, the only case where the proposed lynching did not
occur, was where the men armed themselves in Jacksonville, Fla., and
Paducah, Ky, and prevented it," she wrote. "The only times an
Afro-American who was assaulted got away has been when he had a gun
and used it in self-defense." A New Study Suggests That Black
Southerners' Access to Firearms Reduced Lynchings by Jacob
These are exactly the sort of racially disarming restrictions that
were also evidenced by the restriction in the 1875 Missouri
Constitution and then imported into the 1884 Montana Territorial
Prejudice in Montana
In Montana, the endemic prejudice was not only against blacks, but
also against Indians, Chinese, Mormons, and others.
It is not asserted here that the restrictive and offensive clause in
the Montana Constitution was included as an overt expression of
prejudice. Rather, it is that the restrictive clause was not
seen as objectionable or controversial because of the widespread
racial prejudice that existed and was generally accepted in
1884. Thus, it was a non-issue to simply sweep into Montana
what appeared to be sensible in Missouri.
That there was widespread racism and prejudice in Montana in 1884 is
undisputed. There is a plethora of documentation for
that. One good source is found at the Montana Historical
Society. It is the publication from 1957, HISTORICAL
ESSAYS ON MONTANA AND THE NORTHWEST, edited by K. Ross Toole
and J.W. Smurr.
That publication contains a 54-page chapter titled JIM CROW OUT
WEST, by historian J.W. Smurr. That essay is very worth
reading to understand the times when Montana was coming into
statehood. For the explanation here, a few quotes from the
piece will give the reader the gist of this documentary.
Page 150. Montana statutes of 1872: "Sec. 34. The
education of children of African descent shall be provided for in
Page 154/155. "The Montana act segregating Negro children from
white carried over into the period of statehood from 1889 to 1895."
Page 156. "... Montana Territory passed over the Radical
Republican theory of Negro rights and adopted instead the attitude
popular in the New South ..."
Page 160. The first session of the Montana Legislature enacted
this law, "Every white male inhabitant over the age of twenty-one
years, who shall have paid or be liable to pay any district tax,
shall be a legal voter at any school meeting, and no other
person shall be allowed to vote." (Emphasis in the
Page 161. In 1866, a bill was proposed for the Legislature
"forbidding whites to cohabit with Indians, Chinese, or 'persons of
African descent.' " The bill was amended to exempt Indians.
(Historical note: Historical figure Granville Stuart was on
the Education Committee and was married to an Indian woman - ed.)
Page 161/162. The "Helena election riot of 1867": "The
Territory's leading city and future capital (e.g., Helena - ed.) had
decided to experiment with Negro voting in city elections, somewhat
encouraged to do so by the Republican administration in Washington,
and it is pretty clear from what evidence we have that the
Republican element, struggling hard to overcome a stronger party,
freely solicited Negro votes. Gangs of Democratic roughs
circulated through town warning Negroes from the polls and
threatening violence should they attempt to vote. 'Nigger'
Sammy Hays, a well-known local colored man, was ruthlessly slain by
a white bully, and the Marshal who tried to jail the assassin had to
fight his way through a hostile crowd."
Page 164. In 1864, "So many Missourians ... came up the
Missouri in early days as to be the subject of jest ... they quickly
formed a strong faction and became the most vociferous leaders of
the Democratic party." "A more pervasive aspect of Missouri
influence, perhaps, is to be found in Missouri legislation adopted
by the Montana legislature."
Page 169. "Miss America Turner (colored) received the
following notice early in August of that year (1872, ed.):
You are hereby notified that under the Montana School Law your child
is not entitled to a place in the public school. And you are
hereby notified to cease sending him to school, as he will not be
Thomas B. Irving, Thomas Aspling, Granville Stuart, Directors of
School District No. 1
Pages 181/182. In 1882, the "Democratic Independent"
(italics in the original, ed.) newspaper of Helena
editorialized: "were all race distinctions abolished,
amalgamation (interbreeding - ed.) would inevitably result in the
end. We believe that the Caucasian race is superior to the
African, and that such amalgamation would have a tendency to degrade
our nation to a level with the Mexican and South American
races. In fact, the Mongrel-Mulatto breed, which results from
the amalgamation is inferior to both black and white races . . . It
is a wise law of nature that monsters never breed."
Page 186. "In treating Negroes and their children as
untouchables Montana was only following a longstanding prejudice of
Another example of institutionalized discrimination in 1884 comes
from the Compiled Statutes of Montana - 1884:
Sec. 160. If any person shall, directly or indirectly, sell,
barter, or give intoxicating liquor, whether fermented, vinous, or
spiritous, or any decoction or composition of which fermented,
vinous, or spiritous liquor is a part, to any Indian or half-breed
Indian in this territory, he shall be deemed guilty of a felony.
It was also illegal to sell firearms to Indians.
There is no doubt that systemic racism existed following the Civil
War. This racism caused adoption of the "Black Codes" and "Jim
Crow" laws that, among other intended effects, made it difficult or
impossible for freedmen to possess firearms to defend themselves
(often from lynching). One of the resulting restrictions was
in the Missouri Constitution of 1875 that declared that the right to
keep and bear arms did not apply to wearing concealed weapons.
It was intended that firearms must be visible so prohibitive rules
could be selectively applied to freedmen.
It is inescapable that the right to keep or bear arms in the Montana
Constitution was copied from the Missouri Constitution of
1875. This includes the provision in the Montana Constitution
that today says, ", but nothing herein contained shall be held to
permit the carrying of concealed weapons".
The effect of HB 551 removing this clause from the Montana
Constitution is to eliminate the last residue of Jim Crow and
institutionalized racism from Montana law.
It is worth note that carrying concealed firearms no longer requires
government permission in Montana. Because of that, there is no
public policy benefit to retaining this archaic and racist-evolved
language in the Constitution. It is now baggage, and ugly
baggage at that. Montana is due to make a clean break from
these racist roots.
Note: The current Missouri Constitution no longer contains the
restrictive clause that Montana copied. The right to keep and
bear arms in the Missouri Constitution now reads:
Section 23. Right to keep and bear arms,
ammunition, and certain accessories — exception — rights to be
unalienable. — That the right of every citizen to keep and bear
arms, ammunition, and accessories typical to the normal function
of such arms, in defense of his home, person, family and property,
or when lawfully summoned in aid of the civil power, shall not be
questioned. The rights guaranteed by this section shall be
unalienable. Any restriction on these rights shall be
subject to strict scrutiny and the state of Missouri shall be
obligated to uphold these rights and shall under no circumstances
decline to protect against their infringement. Nothing in
this section shall be construed to prevent the general assembly
from enacting general laws which limit the rights of convicted
violent felons or those adjudicated by a court to be a danger to
self or others as result of a mental disorder or mental infirmity.