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Thread: Are Schools Off Limits in Montana?

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    Are schools and colleges off limits in Montana?

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    Yes. No firearms are allowed on any state property...whether open carry or concealed.

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    Yes. No firearms are allowed on any state property...whether open carry or concealed.

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    Mattsbox99 wrote:
    Yes. No firearms are allowed on any state property...whether open carry or concealed.
    What about private schools?

    Isn't the street state property?

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    Private property is as always regulated by the owner of that property... Montana's open carry law very specifically spells out that schools, banks, and inside of any state or federal building is off limits...

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    45-8-328. Carrying concealed weapon in prohibited place -- penalty. (1) A person commits the offense of carrying a concealed weapon in a prohibited place if the person purposely or knowingly carries a concealed weapon in:
    (a) portions of a building used for state or local government offices and related areas in the building that have been restricted;
    (b) a bank, credit union, savings and loan institution, or similar institution during the institution's normal business hours. It is not an offense under this section to carry a concealed weapon while:
    (i) using an institution's drive-up window, automatic teller machine, or unstaffed night depository; or
    (ii) at or near a branch office of an institution in a mall, grocery store, or other place unless the person is inside the enclosure used for the institution's financial services or is using the institution's financial services.
    (c) a room in which alcoholic beverages are sold, dispensed, and consumed under a license issued under Title 16 for the sale of alcoholic beverages for consumption on the premises.
    (2) It is not a defense that the person had a valid permit to carry a concealed weapon. A person convicted of the offense shall be imprisoned in the county jail for a term not to exceed 6 months or fined an amount not to exceed $500, or both.

    In case anyone reads this old thread I wanted to correct Mattbox99's mostly unsubstantiated and incorrect information.

    Here is the 'school' prohibition,
    http://data.opi.mt.gov/bills/mca/45/8/45-8-361.htm
    applies only to the buildings and does not include colleges.
    Montana's open carry law
    huh? Where exactly in the Montana Annotated Code is this??

    I would conclude a concealed carry permit gets around the school restriction as it does not have this "It is not a defense that the person had a valid permit to carry a concealed weapon." included in the section, as it does in the 'prohibited places' section.


    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    VAOpenCarry,

    I don't think I'd interpret things quite that way. I suspect you would lose that argument in court. I for one don't plan on testing it. Merely the fact there is no statement having a concealed weapons permit is no excuse does not make it one.

    A more relevant MCA section states:

    "45-8-361. Possession or allowing possession of weapon in school building -- exceptions -- penalties -- seizure and forfeiture or return authorized -- definitions. (1) A person commits the offense of possession of a weapon in a school building if the person purposely and knowingly possesses, carries, or stores a weapon in a school building."

    The exceptions of the above section says nothing about concealed weapons permit holders. The implication is clear, knowingly carrying a weapon in a school is commitment of an offense.

    The good news is that Montana essentially has done an end run around the Federal "Gun Free Zone School Zones Act of 1990" by the inclusion of this little gem in the MCA:

    "45-8-360. Establishment of individual licensure. In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution, a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act."

    Basically the Federal Act said something about no guns within 1,000 feet of a school unless individually licensed by the State within which the school is located. MCA 45-8-360 effectively says that if you can own a gun legally, you have an individual license within the borders of Montana.

    Montana has a history of thumbing its collective nose at the Feds. The now defunct 55 mph. speed limit was another such example.

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    Does 45-8-361 include colleges? It says schools. Is that every school?

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    Nevermind. I see that it does not include colleges.



    (5)
    As used in this section:

    (a)
    "school building" means all buildings owned or leased by a local school district that are used for instruction or for student activities. The term does not include a home school provided for in 20-5-109.


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    Just a note. I've spoken to the Montana State University Police about this subject. They believe it to be illegal to carry on campus. How it will play out in court does seem debatable.

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    phoglund wrote:
    Just a note. I've spoken to the Montana State University Police about this subject. They believe it to be illegal to carry on campus. How it will play out in court does seem debatable.
    I do not know about Montana, but I NEVER ask police officers in Georgia the law. 15 different officers will give you 15 different answers.



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    Anyway, I am sure colleges and universities are not owned or leased by local school districts!

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    You are right about how knowledgeable police officers are about laws but it is instructive to ask I think because it gives a certain insight to their mindset on the subject not to mention they are the folks who will make the decision to arrest you or not...irregardless of whether the charges stick in court.

    I prefer to avoid court altogether if possible.

    I may take another's suggestion and contact the State Attorney General about specific laws regarding the carry of firearms on Montana University System campuses.

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    Not the law, but here's the MSU policy page:
    http://www.montana.edu/wwwmsupd/firearm.shtml

    Much better than University of California, for example.

    gridboy

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    Mattsbox99 wrote:
    Yes. No firearms are allowed on any state property...whether open carry or concealed.
    OK, my mind IS made up. I thought I always wanted to move to Montana and but this is ridiculus. Here in Utah we can carry at all state property, except where it may be considered a "secured area".

    76-10-523.5. Compliance with rules for secure facilities.
    Any person, including a person licensed to carry a concealed firearm under Title 53, Chapter 5, Part 7, Concealed Weapons, shall comply with any rule established for secure facilities pursuant to Sections 53B-3-103, 76-8-311.1, 76-8-311.3, and 78-7-6 and shall be subject to any penalty provided in those sections.


    Amended by Chapter 323, 2002 General Session
    Download Code Section Zipped WP 6/7/8 76_0C051.ZIP 1,871 Bytes


    [line]

    Sections in this Chapter|Chapters in this Title|All Titles|Legislative Home Page


    Last revised: Friday, February 08, 2008


    TJ

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    Mattsbox99 wrote:
    Yes. No firearms are allowed on any state property...whether open carry or concealed.
    I'm not sure I would quote that as meaning any state property, it's legal to hunt on state forest land, AFIK, and on land that is held by the state as timber assets for schools, etc. I think that's only concerning property that is in actual use - e.g. with buildings on it, DOT Garages and compounds. etc. I have a set of MCA here at the house and I'd like to see the exact wording of the source where you got that statement. I'm new to these forums, so I'm not trying to insult you, but I lived in Missouri for a while, if you get my drift.

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    MSU and UofM have both stated that they will not allow weapons on campus. MSU was changed after VT incident. Other colleges may be different.

    Montana has some odd CCW laws, but the OC laws are pretty good. A lot of the odd stuff is left over from the 1800's.

    For instance, a woman's purse is considered luggage, and carrying a weapon in luggage is permissable without a CCW.

    -CZ

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    For instance, a woman's purse is considered luggage, and carrying a weapon in luggage is permissable without a CCW. -CZ
    Howdy from s.e MT!

    It's good to know that as I don't have a CCW and am not sure I can get one due to the local yokel gendarme. My husband had one that just expired but we aren't going to renew his....due to a matter of him shooting a dog in our backyard pasture (in the town of Ekalaka) that was killing one of my expensive reg. dairy goats. We believe that if he puts in for it, that it won't be approved due to him getting a misdemeanor ticket. We fought the ticket, but the lawyer we hired out of Miles City sold us down the river. So the fine was $100 and 2 days in jail (suspended) as long as he doesn't fire any gun in town. No problem! I'll shoot any dogs killing my goats.....I did earn an "Expert" ribbon (Marksmanship in the Army?) while on active duty in the Air Force. I'm still accurate.

    However, I had an incident last Aug that made me aware that it's stupid to be without a weapon. I go to MontanaFair to show my goats. We had just got a used diesal pickup in Sheridan, WY that turned out to be a hunk of junk on that trip. It quit on me, while driving, about 25 miles east of Billings at 12:30 am (the 3d time that day). I left Ekalaka at 1 pm and should have been in Billings around 6:30-7 pm. Cars/semis passed by for about 45 mins. Then a car with 2 men slowed and looked like they were going to pull in front of me. I waved them off while holding an old fashioned tire iron in front of me. I don't think it looks like a weapon, but they took off fortunately. I plan on going again this Aug (in a different truck) and want to be prepared.

    MTLaura

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    Malum Prohibitum wrote:
    Are schools and colleges off limits in Montana?
    OCDO is tracking that gun carry is not banned in MT on college campuses as a matter of state criminal law.

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    Mike,

    I would agree, from a criminal law standpoint, that you are correct. However, from a policy standpoint, both main campuses are prohibited places as per their policies. I do not know if they are posted on the buildings or not since I don't even live close to either of these places.

    MSU used to be pretty open, being a country school and all. UofM has been liberal and closed for a long time. Now that VT happened, and MSU has become more liberal over the years, they are now prohibiting it as well. There was quite the outcry of shame about MSU changing the policy here. The only way that I see to change it would be a legal battle similar to what was done in Utah.

    -CZ

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    MontanaCZ wrote:
    MSU and UofM have both stated that they will not allow weapons on campus. MSU was changed after VT incident. Other colleges may be different.

    Montana has some odd CCW laws, but the OC laws are pretty good. A lot of the odd stuff is left over from the 1800's.

    For instance, a woman's purse is considered luggage, and carrying a weapon in luggage is permissable without a CCW.

    -CZ
    Montana State Law Pre-emption over rides MSU OR UofM



    Links do not work but you can look up at:

    http://data.opi.mt.gov/bills/mca_toc/index.htm


    Montana's preemption statute removes local authority to regulate all but a few specific fields of firearms regulation. Montana Code Annotated § 45-8-351(1) provides that:


    No county, city, town, consolidated local government, or other local government unit may 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.

    Section 45-8-351(2)(a) provides the following exceptions to this prohibition:



    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 may "prevent and suppress" the carrying of concealed or unconcealed weapons in a public assembly, publicly owned building, park under its jurisdiction, or school; and

    A county, city, town, consolidated local government or other local government unit may "prevent and suppress" the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.

    The Montana Attorney General has opined that section 45-8-351(2)(a) allows a city to adopt an ordinance regulating the discharge of firearms, but that the city's ability to enforce that ordinance is limited. 42 Mont. Op. Att'y Gen. 8 (1987), 1987 Mont. AG LEXIS 42, *4-5. Although section 7-4-4306 grants authority to the city to enforce "health" ordinances within five miles of the city limits, the Attorney General stated that the city's ordinance regulating the discharge of firearms does not qualify as a "health" ordinance, and therefore the city cannot enforce it in that area. Id. at *6-8. Nevertheless, the Attorney General found that the city can enforce the ordinance pursuant to section 7-32-4302, which grants the city the power to prevent and punish disorderly conduct within three miles of the city limits. Id. at *8-9.

    Section 45-8-351(2)(b) specifically denies local governments the power to prohibit the legitimate display of firearms at shows or other public occasions by collectors and others, and to prohibit the legitimate transportation of firearms through any jurisdiction, or in airports.

    Additionally, section 7-1-111(9) prohibits local governments with self-government powers from exercising any power that "applies to or affects the right to keep or bear arms" except regulation of the carrying of concealed weapons. Section 7-1-111(9) was enacted in response to the decision of the First Judicial District Court of Montana, Lewis and Clark County in City of Helena v. Yetter, 1993 Mont. Dist. LEXIS 172 (1993). There the court had held that section 45-8-351 does not restrict the powers of a self-governing city because it does not "specifically state that it applies to local governments with self-government powers." Id. at *2. A local government has self-government powers if it has adopted a self-government charter, which allows the unit to exercise any power not prohibited by the state's constitution, laws, or the charter itself. Mont. Const. art. XI, § 6.

    There are no other published cases interpreting or applying Mont. Code Ann. §§ 45-8-351 or 7-1-111(9).

    Section 76-9-102 states that standards adopted by a state agency or unit of local government to limit levels of noise that may occur in the outdoor atmosphere or concerning pollution by lead, copper, or brass deposition may not apply to shooting ranges. Section 76-9-103 states that the state laws concerning planning, master plans, or comprehensive plans may not be construed to authorize an ordinance, resolution, or rule that would:



    Prevent the operation of an existing shooting range as a nonconforming use;

    Prohibit the establishment of new shooting ranges, although they may regulate the construction of shooting ranges to specified zones; or

    Prevent the erection or construction of safety improvements on existing shooting ranges.

    Section 76-9-104 also prohibits a "planning district growth policy, recommendation, resolution, rule or zoning designation" that would do any of these things.

    A state agency, unit of local government, or court may not prevent the operation of an established shooting range unless the range presents a clear and provable safety hazard to the adjacent population, in which case the range may be suspended from operation if the range operators are afforded reasonable notice and opportunity to respond and reasonable opportunity to correct any safety defects. Section 76-9-105. However, an established shooting range may be relocated if all of the following conditions are met:



    A pressing public need exists because of incompatibility with nearby population or land use;

    The pressing public need is documented through hearings, testimony, and a clear and precise statement of need; and

    The agency or unit of local government pays the appraised cost of the land together with improvements to the operators of the shooting range.

    Id.

    Section 7-5-2109, which generally authorizes the governing body of a county to regulate littering by ordinance, states that any such ordinance "does not apply to lead, copper, or brass deposits directly resulting from shooting activities at a shooting range." While section 7-5-2111 authorizes the governing body of a county to regulate "conditions that contribute to community decay," section 7-5-2110 states that "community decay" may not be construed or defined to apply to normal activities at a shooting range. Nevertheless, "[n]othing in [section 7-5-2111] or 7-5-2110 may be construed to abrogate or affect the provisions of any lawful ordinance, regulation, or resolution that is more restrictive than the provisions of [section 7-5-2111] or 7-5-2110." Section 7-5-2111(4). Finally, section 45-8-111 states that "[n]oises resulting from the shooting activities at a shooting range during established hours of operation are not considered a public nuisance."

    Section 7-33-4206 authorizes city and town councils to regulate or prohibit the use or selling of toy pistols and guns within the city or town.

    Montana Code Ann. § 7-1-115 restricts the ability of local governments to bring suit against a firearms or ammunition manufacturer, trade association, or dealer. Please see the Montana Immunity Statutes / Manufacturer Litigation section below for further details.

    Please see the Preemption section of the Master List of Firearms Policies for a general discussion of this issue, as well as the Federal Preemption section of the Federal Law Summary page.


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    Jon_E wrote:
    MontanaCZ wrote:
    MSU and UofM have both stated that they will not allow weapons on campus. MSU was changed after VT incident. Other colleges may be different.

    Montana has some odd CCW laws, but the OC laws are pretty good. A lot of the odd stuff is left over from the 1800's.

    For instance, a woman's purse is considered luggage, and carrying a weapon in luggage is permissable without a CCW.

    -CZ
    Montana State Law Pre-emption over rides MSU OR UofM
    Can you identify any authority establishing preemption over state agencies - state colleges are not localities.

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    While the code may override the universities, it has not been tested in court to my knowledge. Until that happens, it will stand.

    -CZ

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    If you are a resident of the university, I would imagine that you also have the right to be armed, just as you would in any other residence.

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    Gary Marbut published a great article about this topic:


    The Montana University System and FirearmsAuthority, Policy, Discussion and Conclusions

    © by Gary Marbut*, 2008

    I. Introduction

    This paper will discuss the treatment of firearms by the Montana university system, the authorities available, the policies applied, discussion of the reasonableness of any regulatory effort, and conclusions.


    http://www.progunleaders.org/university/


    I love the paragraph that reads:

    It is estimated that over 90% of the homes in Montana contain firearms. It is also estimated that the average home in Montana that does contain firearms probably has about 27 firearms. Montana has a higher percentage of residents purchasing hunting licenses than any other state, significantly higher than the number two and three states, Alaska and Wyoming. Montana has a very strong and entrenched firearm culture. The employees of the university system live amid this firearm culture, and many university system students come from Montana and are steeped in this culture. The income of the university system is derived primarily from people who are a part of Montana's firearm culture.

    (bold emphasis is not in original)

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