What is our "preemption law"?
Why is it important?
In relation to the Right to Keep and Bear Arms (RKBA), we hear the
word "preemption" used. What is that all about?
First, remember that the RKBA is a "natural right," meaning that
it exists in every individual. It is not a grant of
privilege from government. As a natural right, so our
Founders instruct us, it cannot either be taken away or
surrendered as a part of the mythical "social contract" in which
we all theoretically engage to get along.
Under our western system of political thought, when we form our
governments, we limit their powers in two ways: 1) by what
we authorize them to do, a limited enumeration of powers, and 2)
by the prohibitions we overtly include in the documents by which
we charter our governments, often called a constitution.
Of course, our federal government's powers to restrict our RKBA is
limited both because such restriction is not within the
"enumerated powers" AND by the Second Amendment. The Second
Amendment does not create any rights. Rather, it says that
government may not infringe on that pre-existing right. For
our state government, that restriction on government is contained
in Article II, Section 12 of the Montana Constitution.
So far, so good, but what does that have to do with "preemption?"
As individuals, we do not form our city and county
governments. We delegate some measure of political power to
the state, and the state enacts laws to allow our city and county
governments to form. Cities and counties are entirely
creatures of the state, local voting and local charters
notwithstanding. In Montana, local governments are
controlled by Title 7 of the Montana Code Annotated (M.C.A.),
which is the collection of laws passed by the Legislature and
signed into law by various governors since Montana's territorial
days. Title 7 is the longest title of the M.C.A., running
859 pages of fine print.
Having laid out the types and organization of local governments in
Title 7, and the various powers that local governments are allowed
to assert, the Legislature felt it wise to pass yet another law
limiting local governments' power to restrict firearms. This
is called Montana's "preemption law" and is found in the M.C.A. at
Thus, our preemption law is basically the Legislature imposing the
restrictions of the Montana Constitution upon local
governments. Our preemption law is the implementation of the
RKBA as it applies to local governments.
Unfortunately, 15 local governments in Montana have enacted and
enforce local gun control, most recently Missoula, despite the
RKBA in the Montana Constitution and despite our existing
preemption law at 45-8-351.
To counter this, I wrote House Bill 357 for the 2019 Legislature
to create LR-130, which alters Montana's preemption law so as to
clearly prohibit the restrictions on firearms currently imposed on
locals by 15 Montana local governments. That is, LR-130
further implements the RKBA we the people have reserved to
ourselves in the Montana Constitution, and to make sure there is
no wiggle room left for local governments to abuse their authority
by enforcing local gun control.
LR-130 will be on the ballot this November. Every Montana
gun owner needs to turn out to vote for LR-130. Every
Montana gun owner needs to inform all friends that LR-130 is
essential to preserving our RKBA from a patchwork effort across
Montana by local governments to eviscerate this important right at
the local level.