House Bill 551
Correcting residual and endemic racism in Montana
by
Gary Marbut, president
Montana Shooting Sports Association

Introduction

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."

Kopel comments:

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 Sullum, reason.com,2022.

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 Constitution.

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 separate schools."

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 original)

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 admitted.

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 the nation."

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.

Conclusion

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.

End

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.