Article II, § 12 of the Montana Constitution provides that “[t]he right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

Originally enacted as Article III, § 13 of the Montana Constitution, this provision has been interpreted by state courts to protect an individual right to possess arms in defense of self and property. This right has been interpreted to be subject to regulations by the state that are “reasonably necessary to preserve the public welfare.”¹

In a 2012 case, State v. Fadness, the Supreme Court of Montana rejected the argument that the state’s felon-in-possession law violated article 2, section 12 of the Montana Constitution.² In addressing this matter, the court ruled that the state right to bear arms “is not unlimited,”³ that “the right of a felon to keep or bear arms may be regulated in the interest of public safety,”⁴ and that “the right to bear arms is subject to the police power of the state.”⁵ In reaching these conclusions, the court looked to a Fifth Circuit ruling, which declared that “[a convicted felon] may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens.”⁶

Though not an amendment to the state constitution, in 2023, Montana enacted a law titled the “Gun Owners Access to Justice Act” that would require any prosecutor seeking a penalty that would restrict someone’s ability to possess a firearm to prove that burdening the person’s right to bear arms furthers a compelling state interest and is the least restrictive means to further that interest. This is a version of “strict scrutiny,” the highest burden of proof used in civil cases. The law becomes effective October 1, 2023.⁷

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1. See State v. Rathbone, 100 P.2d 86, 91 (Mont. 1940) (stating that the exercise of police power may infringe upon private rights only to the extent reasonably necessary to preserve the public welfare, and holding that the right “to keep or bear arms” protects a fundamental right to defend one’s own property); and United States v. Brooks, 890 P.2d 759, 761 (Mont. 1995) (holding that while a convicted criminal offender may be deprived of his or her constitutional rights, including the right “to keep or bear arms,” such deprivation must be specifically enumerated and included in the sentencing order).[↩]
2. 268 P.3d 17 (Mont. 2012).[↩]
3. Id. at 25.[↩]
4. Id.[↩]
5. Id.[↩]
6. Id. at 26, quoting United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004).[↩]
7. 2023 HB 631.[↩]