Montana Shooting Sports Association (MSSA)
Comment concerning
Petition to ban shooting on state lands in Gallatin County
by
Gary Marbut, president, MSSA
MSSA opposes the DNRC firearm discharge ban proposed by petitioners for thousands of acres of state-owned and managed land in Gallatin County, for a variety of reasons.
It is worth noting that I grew up on a 5,000-acre, working cattle ranch. I have observed the consequences of unsafe or malicious shooting. I am not unsympathetic to concerns expressed by petitioners. I am recently retired from having been a firearms safety instructor for over 30 years. I am accepted in state and federal courts as an expert concerning firearms safety and related topics. Finally, I am the author of the trade paperback book Gun Laws of Montana, now in its fifth printing with about 10,000 copies sold, and the accepted authority on that subject in Montana. I am more than conversant with these subjects.
Needs of the Bozeman area
It is clear from recent history that the Bozeman area population is underserved for safe and suitable places for area people to shoot. There are mechanisms, resources, and strategies available to meet such needs. However, solving this dilemma will require interested area people to coalesce and commit to participating in a long term solution. It is admitted that there is a problem that needs to be addressed on a long term basis.
Constitutional issues
It is beyond obvious that a ban on firearm discharge impinges on the right to keep or bear arms that the people of Montana have reserved to themselves, specifically from government interference, in Article II, Section 12 of the Montana Constitution. This section mandates that the right “shall not be called in question”. See Senate Joint Resolution 11, passed by the 2017 Montana Legislature for further definition about what this phrase means and what any invasion of the right requires.
https://bills.legmt.gov/#/bill/20171/LC0446?open_tab=bill
Since SJ 11 was passed, the U.S. Supreme Court has decided the NYSRPA v. Bruen case, in which the Court established a new standard for evaluating any infringment on the right to keep and bear arms reserved in the Second Amendment to the U.S. Constitution, and arguably also to that right in the Montana Constitution. Under the new Bruen standard, if this fundamental right is implicated in any way by a government action, the burden immediately shifts to the government to demonstrate that there were founding-era laws restricting the right in the same way, demonstrating that the Founders saw such restriction to be compatible with the right. For the U.S. Constitution, the founding era is 1791, when the Second Amendment was adopted. For the Montana Constitution, the founding era would be 1884, when the language that exists in Article II, Section 12 today was first adopted as a part of the Montana Territorial Constitution.
Whether 1791 in the U.S. or 1884 in Montana, the government will not be able to show any government actions to make or enforce broad firearm discharge bans over thousands of acres of undeveloped public land. Thus, such a discharge ban will be an impermissible restriction of a fundamental right.
The notion that the proposed DNRC discharge ban is constitutionally permissible is a non-starter.
Conflict
It is curious that this same location is also proposed by the Montana Department of Fish, Wildlife, and Parks (DFWP) to become an established, developed, and managed shooting facility. It is unlikely that the present petition and the DFWP proposal are not somehow connected. Do petitioners hope to derail DFWP plans to establish a dedicated shooting range in this location by using a DNRC firearm discharge ban? Or, could the petition have been spawned as a ploy by DFWP to demonstrate need for more control and management of shooting in the area, thereby supporting their plan for a DFWP-managed facility and agency mission creep? The answer to these questions is unknown, but the questions are provocative and ought to be explored.
Allegation of revenue loss
The petition to DNRC asserts that the state will suffer revenue loss from state land if the discharge ban is not imposed. First, this allegation is unsubstantiated.
Second, even if a revenue loss were substantiated, revenue loss is a wholly insufficient reason for a government entity to chip away at a right that the people have reserved to themselves from government interference. Imagine if some petitioners were to ask DNRC to prohibit Native Americans from conducting religious ceremonies on state lands because of possible revenue loss. Imagine if DNRC denied due process or the right to trial by jury for anyone alleged to have committed a crime on state lands, in order to prevent revenue loss from fair and convenient trials.
Alleged revenue loss is such a lightweight reason for the proposed ban that it simply has no place in this discussion when compared with the weight of other issues in play.
Safety
Those who lease state land do so in a willing-buyer, willing-seller relationship. Those leasing state land, by their very occupancy of that land, accept multiple risks to themselves, livestock, and equipment. Lightning strikes state lands. Fires burn state lands. There are large predators and venomous snakes on state lands. There are high cliffs and flooding rivers on state lands. DNRC cannot be expected to eliminate all risks for those who would willingly lease state lands.
While it is not admitted that recreational shooters pose an unmanageable risk to other land users, whatever risk there may be must be viewed as just one of a very long list of inherent risks, risks a person knowingly and willingly accepts when leasing public lands. What would be next, a demand that DNRC eliminate all snakes and stop lightning strikes on leased state land?
For these reasons, DNRC ought to deny petitioners’ proposal to ban the discharge of firearms in Gallatin County.
Sincerely,
Gary Marbut, president
Montana Shooting Sports Association
The primary political advocate for Montana gun owners