Preemption Statute

The Montana Legislature has enacted a preemption statute. Montana Code Annotated section 45-8-351(1) provides that:

“Except as provided in subsection (2) [discussed below], 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.”

Exceptions

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 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.
• A local government unit may “prevent and suppress” the possession of firearms by people convicted of felonies, people subject to mental health adjudications, undocumented immigrants and minors.

Interpretation

One court in Montana has held that section 45-8-351 does not restrict the powers of a self-governing city.¹ In City of Helena v. Yetter,² the First Judicial District Court of Montana upheld the city of Helena’s ordinance prohibiting the possession of a loaded firearm. The court rejected the argument that the ordinance was preempted by section 45-8-351, finding that the city had adopted a self-governing charter and the law does not “specifically state that [section 45-8-351] applies to local governments with self-government powers.”³

In addition, 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.⁴ 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 could not enforce it in that area.⁵ Nevertheless, the Attorney General found that the city could 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.⁶

Other Statutory Provisions

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.

Section 45-8-351(2)(c) precludes local ordinances that prohibit a legislative security officer, who has been issued a concealed weapon permit, from carrying a concealed weapon in the state capitol.

Section 7-1-111(9) prohibits local governments from exercising any power that “applies to or affects the right to keep or bear arms.”

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.

Shooting Ranges

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
• 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.

Section 76-9-105 governs a local unit of government’s ability to interfere with the operation of a shooting range. 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 an opportunity to respond, as well as a reasonable opportunity to correct any safety defects.⁷ 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
• The agency or unit of local government pays the appraised cost of the land (together with improvements) to the operators of the shooting range⁸

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.”⁹ 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.”¹⁰

Finally, section 45-8-111(5) states that “[n]oises resulting from the shooting activities at a shooting range during established hours of operation are not considered a public nuisance.”

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Montana.

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1. In Montana, a local government has self-government powers if it has adopted a self-government charter, which allows the local government to exercise any power not prohibited by the state’s constitution, laws, or the charter itself. Mont. Const. art. XI, § 6.[↩]
2. 1993 Mont. Dist. LEXIS 172 (1993).[↩]
3. Id. at *2.[↩]
4. 42 Mont. Op. Att’y Gen. 8 (1987), 1987 Mont. AG LEXIS 42, *4-5.[↩]
5. Id. at *6-8.[↩]
6. Id. at *8-9.[↩]
7. Mont. Code Ann. § 76-9-105(1), (3).[↩]
8. Mont. Code Ann. § 76-9-105(2).[↩]
9. Mont. Code Ann. § 7-5-2109(1)(b).[↩]
10. Mont. Code Ann. § 7-5-2111(4).[↩]