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Thread: Preemption Questions

  1. #1
    Activist Member N605TW's Avatar
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    Preemption Questions

    I am having a hard time finding the preemption law/code for Montana. I live in Helena and city code 5-1-32 states
    A. Prohibition: It shall be unlawful, and a misdemeanor, for any person, other than a peace officer in the discharge of his duties, or a citizen in the protection of his life or that of his family or his property, or any person authorized by law: (Ord. 2719, 9-26-1994)
    1. To carry on or about his person, in any place open to the public, any loaded or concealed firearm, rifle, airgun or pistol within the limits of this city, or to shoot any airgun, rifle, pistol, sling shot or bow and arrow within the limits of this city, except in those areas designated as indoor or outdoor rifle, pistol, shotgun or archery ranges as designated and approved by the city manager. (Ord. 2742, 6-5-1995)
    2. To possess any firearm, airgun or pistol at a public assembly, in a city park, school, or in any publicly owned building, with the specific exceptions of:
    a. Legitimate displays of unloaded firearms at shows or other public occasions by collectors and others; and
    b. Persons participating in hunter or gun safety classes sanctioned by the department of fish, wildlife and parks and authorized by the city or school. (Ord. 2447, 7-27-1987)

    B. Exceptions: Nothing in this chapter shall apply to a person in actual service in the military of the United States or the state, as a law enforcement officer or person summoned to his aid, nor to a revenue or other civil officer engaged in the discharge of his official duties, nor carrying of arms in one's premises or place of business, or where a concealed weapons permit has been granted to bear, concealed or otherwise, a pistol or revolver during the time of such permission. (Ord. 2670, 4-26-1993; amd. Ord. 2742, 6-5-1995)

    C. Concealed Weapons: Any person carrying a concealed weapon pursuant to a valid concealed weapons permit, upon being stopped by a law enforcement officer while in possession of said weapon, must immediately advise said law enforcement officer of the location and type of weapon and show a valid permit for carrying the same. (Ord. 2626, 1-27-1992)
    I am trying to find the state law in the MCA that says the city code is preempted. I carry everyday and I do not have a permit to carry any concealed weapon. Although I haven't had any problems or even a second look from law enforcement I do not want to break the law. Does anyone know where the preemption law is?

    You can read the full Helena City Code at http://www.sterlingcodifiers.com/cod...ywords=firearm

  2. #2
    Regular Member 40s-and-wfan's Avatar
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    Here's my question: At what point is it deemed necessary to protect my life or that of my family or our property? Since we cannot determine when and where the necessity to be armed will present itself, I choose to carry at all times and choose to do my utmost to protect my family whenever we're together. When we're not, my wife exercises that same ability. So unless I am "...in the protection of his life or that of his family or his property..." I do not carry. Since I take this protection seriously, I am not caught without my firearm.
    There is nothing in the State laws that says Open Carry is illegal or that Concealed Carry is illegal. There are restrictions on how and where you can do it but that's about the extent of it. My suggestion would be to call the Attorney General's office and talk to someone there who knows something about the firearms laws in the state and who might be able to shed some light on where you can find information regarding city laws, more specifically the preemption as you mentioned.
    I have to say, I don't like the sound of what the City of Helena has put in their City Laws. It doesn't sit well on my stomach and I would be making some phone calls to find this information out as soon as possible. Call the City Attorney's office and see what he/she has to say.

    I just can't believe they would tell you that you cannot carry unless you are "...in the protection of his life or that of his family or his property..." as the law stated. They should know full well that such a time cannot be determined or pre-scheduled. I haven't met a criminal yet who will make an appointment before a run-in.

  3. #3
    State Researcher
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    Post Montana preemption law

    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  4. #4
    Activist Member N605TW's Avatar
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    Thanks WVCDL,
    Not sure how I missed it. I think I should stop burning the midnight oil trying to read dry text. Thanks again.

  5. #5
    Regular Member MT GUNNY's Avatar
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    Helena's city code you have listed in your post,
    ( Paragraph 1.) Is in itself A violation to The preemption law of Montana!

    Helena city code A. Prohibition: It shall be unlawful, and a misdemeanor, for any person, other than a peace officer in the discharge of his duties, or a citizen in the protection of his life or that of his family or his property, or any person authorized by law:
    1. To carry on or about his person, in any place open to the public, any loaded or concealed firearm, rifle, airgun or pistol within the limits of this city, or to shoot any airgun, rifle, pistol, sling shot or bow and arrow within the limits of this city, except in those areas designated as indoor or outdoor rifle, pistol, shotgun or archery ranges as designated and approved by the city manager.

    MCA 45-8-351(2), 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.

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