An Open Letter to Montana School Board Members

September 2, 2019

Dear Trustee,

I wish I were writing to you under happier circumstances.  But, I feel it's only fair to warn you that I am on the verge of advising Montana gun owners to replace every school board member in Montana at any upcoming election.  That would be unfortunate because I'm sure most school trustees are very good people.

Why, you ask?  Good question.  It's because you have fallen down on the job of supervising the organization that speaks for you, the Montana School Boards Association.  The MSBA has become overtly, publicly, and dishonestly anti-gun, and has aligned itself and you with an anti-gun group trying to dictate Montana policy from New York City.  This is simply not consistent with Montana culture or values.

You haven't heard of this?  Let me explain.  The Legislature passed a referendum (LR-130) that will be on the ballot for a public vote in 2020.  The Attorney General is required by law to craft a short summary of the measure to explain it to voters.  This is called the "ballot statement."  The AG did this after receiving public comment on a draft.

If you haven't heard of it before, LR-130 would strengthen an existing law that prevents cities and counties from adopting and enforcing a patchwork of gun control laws across Montana.  This existing law basically implements Article II, Section 12 of the Montana Constitution.

Your MSBA joined with the New York gun control advocate to file a lawsuit on your behalf with the Montana Supreme Court, claiming that the AG's ballot statement was misleading because it failed to warn the voting public about the impact of LR-130 on schools.

The Montana Supreme Court rejected this argument unanimously, because it's simply not true.  LR-130 will have no impact on schools.  Montana law, at 45-8-361 prohibits guns in schools unless with school board permission (e.g., hunter education classes)  LR-130 does not affect 45-8-361.  Period.  The Supreme Court knows this, which is why it unanimously rejected this argument made on your behalf by the MSBA lawyer.

See what I mean about you not adequately supervising the organization that represents and speaks for you?  The MSBA has joined you with a gun control advocate from New York (Everytown for Gun Safety) (sic) and has made a dishonest argument to the Montana Supreme Court on your behalf.

Not only does this make you look incompetent, it also places you publicly in the gun control political camp.  I'm certain Montana gun owners will find this information relevant.  I suspect they will be glad to have a political target for their frustration over attempts to impose various gun control schemes across Montana, a political target of incumbent school board members.

I will be keeping my ears open to learn what, if anything, Montana school board members do to get the MSBA back under control, and on a leash if necessary.  Hey, it's your organization.  Fix it, if you can.

Sincerely yours,

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


Second Open Letter to Montana School Board Members

September 3, 2019

Dear Trustee,

The Executive Director of the Montana School Boards Association (MSBA) said in an email to you about my Open Letter to you yesterday, "The letter is factually inaccurate."

This is just an attempt to escape accountability to you.  However, to be careful and thorough, let's examine essential facts about what I asserted in my letter yesterday.

Fact # 1:  MSBA joined with Everytown for Gun Safety (properly "Everytown for Gun Safety Action Fund" - from the MSBA petition) in its petition to the Montana Supreme Court to change the Attorney General's ballot statement for Legislative Referendum # 130 (LR-130).  Both MSBA and Everytown are listed in the caption, and in the body, of the petition to the Montana Supreme Court (MSC) as joint petitioners.  That's verified in the Supreme Court record for the case.

Fact # 2:  Everytown is notoriously anti-gun.  Everytown is founded and funded by New York City billionaire Michael Bloomberg, as are his sibling Mayors Against Illegal Guns and Moms Demand Action for Gun Sense. says Everytown "is a New York-based lobbying group that advocates for gun control measures while opposing laws expanding firearms carry privileges.  Michael Bloomberg, the former New York City mayor and founder and owner of global financial services and media company Bloomberg LP, is the founder and the primary funder of Everytown. Bloomberg founded the anti-gun group in April 2014". (See:

Fact # 3:  45-8-361, M.C.A. is a state law that prohibits guns in schools unless with the permission of the school board.  This existing law allows a school board to permit guns in schools for special situations, such as Hunter Education classes or other purpose deemed appropriate by the board.  This law is the controlling law about guns in schools in Montana.  (See:

Fact # 4:  45-8-361, M.C.A. is completely unaffected by LR-130.  LR-130 was placed on the ballot for the 2020 election by House Bill 357 in the 2019 legislative session.  If you care to read the bill, you can see that 45-8-361 is no part of HB 357 - it is therefore totally unaffected by LR-130.  (See:  For clarity, 45-8-351 (three-FIFTY-one) is affected by LR-130, but the different law, 45-8-361 (three-SIXTY-one), is NOT.

Fact # 5:  In the MSBA petition to the Supreme Court, MSBA failed to argue anything about the controlling law in re schools and guns, 45-8-361.  This is a lie, even if a lie of omission.  That is dishonest.  It reflects on you as a principal to your agent, MSBA.  An honest approach would have been to admit the authority of 45-8-361, but then perhaps argue it is unconstitutional, or that LR-130 amends it by implication even if not overtly.

Fact # 6:  The Supreme Court rejected the MSBA request to alter the AG-created ballot statement for LR-130 unanimously.  How often have you seen the Supreme Court act unanimously on anything?  I suspect that happened in this case because of the obvious and effective dishonesty involved.  And, because the MSBA was grasping at straws with a very lame argument.  Yes, MSBA had its day in court, urged on (maybe sucked in would be better) by its apparent buddy Everytown, but that didn't work out well for MSBA, and the way it happened doesn't make you or MSBA look very good at all.

Fact # 7:  An opposing brief was submitted by 50 Montana legislators, among those who voted to pass the parent HB 357.  HB 357 was passed by a majority of both House (56-43) and Senate (28-21).  Thus, with its Supreme Court petition MSBA picked the opposite side from the majority of the Legislature on this volatile issue.  The practical effect of this is that the MSBA will have angered important legislators and thereby squandered a lot of political capital in this misplaced effort.  That is, your MSBA has practically forfeited some ability to accomplish some political things school boards may need because the MSBA made the poor political choice to jump onto this slippery political slope.  With greater wisdom, or better supervision from you, MSBA might have stayed out of this fray.

So, those are the facts.  To restate them, MSBA joined with a New York gun control advocate to file a lame and possibly dishonest petition with the Montana Supreme Court, and lost that effort (and credibility) in a unanimous, adverse, and surprisingly dismissive decision by the Court.  MSBA not only lost, but it squandered critical political capital (and maybe some actual money) to do so.

Does that make it sound as if you, a member of the MSBA, have done an adequate job of supervising and directing your organization?


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


For Legal Nerds - Parsing the Legal Argument

MSBA and the tooth fairy legal theory

The Montana School Boards Association (MSBA) expresses concern about Legislative Referendum # 130 (LR-130), asserting that it would deprive schools of existing legal authority to ban guns outside of school buildings, such as in school parking lots.  The legal theory supporting this assumption is tenuous, at very best, and depends on the serial correctness of three implied assumptions, each of which is strained.  If any one of these three assumptions fail, the legal theory fails.

Since I am not an attorney, I am not allowed to offer a formal legal opinion or give legal advice.  However, since I understand this area of law better than nearly all attorneys, I can explain it to anyone interested.

Examining the MSBA expressed concern about LR-130 involves two specific statutes in the Montana Codes Annotated (M.C.A.).  Those are 45-8-351 and 45-8-361.  For brevity, I will refer to them as 351 and 361.  For background, 351 generally limits the power of local governments to regulate firearms, with narrow exceptions, and 361 generally prohibits guns in schools unless with the permission of the local school board.

MSBA concedes (I believe):  1) that 361 is unaffected by LR-130, and 2) that 361 only applies inside school buildings.

However, MSBA asserts that 351 currently empowers school boards to regulate or limit firearms outside of school buildings, in parking lots, athletic fields, playgrounds, and maybe even on school busses or field trips away from school.  It is uncontested here that schools have separate authority over employees and students, and may invoke certain policies applicable to students and staff that do not apply to the general public.  To invoke the legal theory that schools may assert authority contained in 351 to apply to the general public outside of school buildings requires supporting three strained assumptions, all of which must hold up to make the legal theory work.  Before addressing each of those three assumptions, let us look at the statute involved, 351.
Restriction On Local Government Regulation Of Firearms
45-8-351. Restriction on local government regulation of firearms. (1) Except as provided in subsection (2), a county, city, town, consolidated local government, or other local government unit may not prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun.

(2) (a) For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns. A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school, and the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors.

(b) Nothing contained in this section allows any government to prohibit the legitimate display of firearms at shows or other public occasions by collectors and others or to prohibit the legitimate transportation of firearms through any jurisdiction, whether in airports or otherwise.

(c) A local ordinance enacted pursuant to this section may not prohibit a legislative security officer who has been issued a concealed weapon permit from carrying a concealed weapon in the state capitol as provided in 45-8-317.

Subsection (1) states the general prohibition of power of local governments to regulate firearms.  Subsection (2) states the exceptions to the prohibition.  We may disregard (2)(b) and (2)(c), as they don't apply to this discussion.  We may also disregard the first sentence of (a) as it doesn't apply to this discussion either.  What is relevant to this discussion is the second (long) sentence of (2)(a).  So we may focus on that, I will paste that here:

"A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school, and the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors."

The MSBA makes no argument that its wish to regulate firearms outside school buildings is to "prevent and suppress" "the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors."  So that language is outside of our discussion too.  Now let me restate the language that IS relevant to this discussion:

"A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school ..."

Now is time to turn to the three serial arguments that MSBA must prove to assert that existing law gives school boards authority to regulate firearms outside school buildings, an authority schools could theoretically lose under LR-130, a loss which theoretically gives MSBA reason to favor the gun control side of the LR-130 issue.

FIRST ASSUMPTION - "other local government unit."  MSBA asserts that school districts are an "other local government unit" which can assert the powers offered in this remaining language of (2)(a).

Back to Civics 101.  The master political entity in Montana is the State, as created by the people via the Montana Constitution.  All other political entities are authorized by the State and are called "political subdivisions of the state."  This legally-defined terminology is the common convention in civics and the state laws.

What are such political subdivisions.  Most importantly they are counties and incorporated cities, but include a host of other special districts.  These include (most importantly) school districts, but also include a LOT of others, such as mosquito control districts, irrigation districts, transportation districts, special improvement districts, tax increment financing districts, fire districts, grazing districts, weed control districts, urban renewal districts, and many more.

Because the terminology of "political subdivisions of the state" is so old, so well known, so well defined, and so commonly used, it is fair to suppose that if the drafters of 351 had intended "political subdivisions of the state" they would have used that terminology in 351.  But, they didn't.  They chose instead to use "A county, city, town, consolidated local government, or other local government unit ..."

It is a presumption in law that the Legislature knows what it is doing when it enacts laws, that it knows what the words it uses mean, and that what is selected to include in laws is done for good reason.

So, why did the Legislature use the language "A county, city, town, consolidated local government, or other local government unit ..." instead of the more common and inclusive "political subdivisions of the state", and what did it intend by that?

To understand that, it is helpful to read through Title 7 of the M.C.A. (I have).  It is one of the longest Titles in Montana law.  It covers local government.  It also describes and enables a very confusing array of different types of cities and counties that are allowable in Montana.  Because of all the possible permutations allowed for local people to form themselves into local government, present or future, it suddenly makes sense that the Legislature would attempt to sweep in the various forms of cities and counties with the additional generic term of "other local government unit."

Looking at this the other way around, if the Legislature had intended "other local government unit" to mean the more inclusive "political subdivisions of the state", then that would also mean that the Legislature intended mosquito control districts, grazing districts, and weed districts to be able to regulate firearms within the exception allowed by (2)(a).  That view, of course, is absurd.

Therefore, the first assumption by the MSBA, that "other local government unit" includes and empowers schools, as if the law said "political subdivisions of the state" is not likely to hold up.  That point of failure would doom the MSBA legal theory.

SECOND ASSUMPTION - parks and public assemblies.  Even if MSBA were successful in asserting that schools are an "other local government unit", then just what would the relevant language of 351 allow schools to do with that?  What, for example, about school parking lots?  Let me restate once more the relevant language of (2)(a):

"A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school ..."

In order to simplify this discussion, let us eliminate counties, cities, towns, and substitute "school district" for "other local government unit."  Later in the relevant language, let us also eliminate "publicly owned building" and "or school" since it is admitted that those are already subject to school boards' authority under 361.  What is left reads like this:

"A [school district] has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, or park under its jurisdiction ..."

That's what would effectively be allowed if the MSBA assertion that schools are an "other local government unit" is correct.

Back to the question of school parking lots.  Remember, this would only apply to the general public, since it's already been conceded that schools have separate and different authority over staff and students.

Is a parking lot a "park"?  I don't think that will fly.  Black's Law Dictionary defines "park" as "An enclosed pleasure-ground in or near a city, set apart for the recreation of the public."  Is a parking lot a "public assembly"?  That is equally problematic.  Yes, people come and go there, but they are most commonly passing through, not assembling.  I'd guess it's no better than a coin toss whether the courts would tolerate an allegation that school grounds outside of a building constitute either a "park" or a "public assembly."  Surely, common definitions of these terms won't fit.  Something more imaginative will be needed.  I grant an argument can be made in that direction, but the discussions in the Legislature about legislative intent when 351 was enacted will not support that argument.

So, the MSBA legal theory will likely also fail with this second assumption.  That failure would doom the legal theory just as would a failure of the first assumption.

THIRD ASSUMPTION - Montana Constitution.  MSBA's legal theory that schools are an "other local government unit" and can therefore regulate guns outside school buildings because the areas outside are a "park" or "public assembly" must also be permissible under the restrictions in the Montana Constitution.

In Article II, Section 12, the people of Montana have reserved to themselves the right to keep or bear arms.  This very specific language is a direct bar to action by government entities or government actors.  And, this provision says that this right the people have reserved shall not be "called in question."  That's pretty strong language.

Curiously, the words "called in question" have never been defined in court cases, and only once by the Legislature.  In 2017, the Legislature passed Senate Joint Resolution 11, which defined "called in question" for the first time in Montana history.  According to that definition, the MSBA legal theory would fail on several counts, including that it would be a prior restraint, that it would have unintended consequences, and that it would not be at all narrowly tailored to meet a proven need.  Even if a reviewing court were to ignore the Legislature's authoritative definition of "called in question" in SJ11, the court would probably see that the results of the MSBA legal theory do not pass constitutional muster.

Thus, constitutionality is the third, serial challenge for MSBA's legal theory that schools may currently regulate firearms outside school buildings because of a strained and inventive interpretation of 351(2)(a).

Suppose for the sake of discussion that one were to assign a 50% chance that the MSBA legal theory would survive each of these three sequential steps.  That's very generous, in my opinion.  I'd guess each step at about 10% chance of survival.  However, even at 50%, the overall odds of surviving this series is poor.

Do the math yourself.  50% times 50% times 50%.  The result is 12.5%.  Therefore, the MSBA must claim it has a valid dog in the LR-130 controversy and should get its members embroiled in a gun control political squabble because there is a 12% chance (very best case) that its inventive legal theory about current law is correct, and that there is something for schools to possibly lose from existing law if LR-130 is approved by voters.

Accept this legal theory and we'll move along to the tooth fairy legal theory.

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