Citation(s) from the GunPolicy.org literature library
Giffords Law Center to Prevent Gun Violence. 2022 ‘Preemption of Local Laws in Montana.’ Other Laws & Policies. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 24 January
Local Authority to Regulate Firearms in Montana
Montana removes local authority to regulate all but a few specific fields of firearms regulation. Montana Code Annotated § 45-8-351(1) provides that:
[N]o 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:
- 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. 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.
Section 45-8-351(2)(b) specifically denies local governments the power to prohibit the display of firearms at shows or other public occasions by collectors and others, and to prohibit the 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." 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.
There are no other published cases interpreting or applying Montana 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 regulate shooting ranges in the aforementioned ways.
A unit of local government 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. An established shooting range may be relocated, however, 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.
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." 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…
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