Montana Banning Discharge Of Firearms In Array Of Places Labeled “Public Use Sites”

Below is my comment on new rules proposed by the Montana Department of Fish, Wildlife, and Parks, banning discharge of firearms in a wide array of places labeled as “public use sites.” This proposed rule set is now before the FWP Commission for consideration and adoption.

I recommend you follow up on this with your own comment. For a short version, you can simply say, “I agree with the comment submitted by the Montana Shooting Sports Association.” Or, you can write up your own comment, but I recommend you Do Something. Email your comments to [email protected] or [email protected].

Lesley Robinson, Chair, Commission [email protected] [email protected]

Dear Chair Robinson,

The Montana Shooting Sports Association is the primary political advocate for Montana gun owners. We offer comment on the newly proposed DFWP rules, those posted at:

https://rules.mt.gov/gateway/ShowNoticeFile.asp?TID=11776

What are proposed are “public use rules for all department lands (e.g., state parks, fishing access sites, wildlife management areas, wildlife habitat protection areas, and fisheries conservation areas).” In this proposed rule body, public use sites (hereinafter PUS) are defined as ” (20) ‘Public use sites’ means fishing access sites, wildlife management areas, wildlife habitat protection areas, state parks, state parks-affiliated lands, fisheries conservation areas, or any other lands managed by the department for public use.”

We restrict our comment specifically to NEW RULE XIII, proposed as follows:

“NEW RULE XIII (ARM 12.12.113) WEAPONS (1) Except as posted by the department, discharge of any weapon as defined in 45-2-101, MCA, such as firearms, explosives, air or gas weapons, paintball guns, arrows from a bow, spears, or spear guns on or over either land or water is prohibited in public use sites.

“(2) The possession, display, carrying, discharge, or use of a firearm in public use sites must be in compliance with Title 45, chapter 8, part 3, MCA.”

Subsection (2) is acceptable as is, merely a reference to existing statutes.

Subsection (1) has several serious, probably fatal problems, addressed as follows:

1. Inadequate authority. Because a firearm discharge ban directly affects the right to keep or bear arms that the people have reserved to themselves specifically from government interference, if this may be legally done at all it may only be done by concurrence of the Legislature and the Governor, but not by administrative action of some agency subset of the executive branch. Stated simply, this infringement upon the right to keep and bear arms, if legally possible, is well above the pay grade and authority of the Commission.

Further, because of the recent SCOTUS Bruen decision, for a government entity to sustain such a restriction will require showing historical analogs from the founding era, circa 1791. It is unlikely that this can be accomplished.

Also, no argument about seeking or supporting public safety will allow this rule to survive a legal challenge under the new Bruen standard. In Bruen, SCOTUS very deliberately and clearly prohibited any sort of balancing test to justify government intrusion into Second Amendment rights.

2. Fatal flaw. This rule is also fatally flawed and unenforceable because it makes no exception for legitimate self-defense. That omission flies in the face of Article II, Section 12 of the Montana Constitution.

3. Overbroad. Not all PUS work with one set of rules. E.g., a blanket archery and firearm discharge ban is in conflict with hunting in wildlife management areas. Despite the desire for uniform rules for different PUS, there is enough difference between circumstances and use to require different rules.

4. Slippery slope. If this rule is adopted, that opens the door for future expansion of PUS. This existing ban would then spread to become additional constitution-free zones.

Recommendation: Delete Section (1) entirely and rely on existing law as stated in Section (2).

Sincerely,

Gary Marbut, president Montana Shooting Sports Association

 

Additional discussion

It is easy to imagine scenarios where this rule would be simply unworkable. Imagine an angry bear attacking people at a PUS. Suppose the last uninjured person present has an adequate firearm for self-defense. However, if that person complies with the proposed policy, she will get eaten by the bear. If she violates the rule and shoots the rampaging bear, she will become subject to some form of prosecution and punishment for her rule violation.

But, we would never prosecute somebody for that, you might assure us. Another way to say the same thing is that you expect us to rely on your goodwill and selective enforcement of the law by allegedly wise and benevolent government employees to exercise our liberty.

No. Just no. Properly crafted public policy does not depend on selective enforcement by well-intentioned people for its proper administration.

But, you might argue without the prohibition in this rule, people could do crazy and dangerous things in a PUS. Just imagine drunken trapshooting at a busy fishing access site, you say.

In the First Amendment context, this is called prior restraint and is specifically and staunchly disallowed by the courts. People may not be prohibited the exercise of reserved constitutional rights on the theory that if they are allowed to exercise the right, then someone or more are sure to abuse the right. Rather, a person may only be punished afterward for any actual abuse of right, but not prevented in advance from exercising the right. This principle is one of the hallmarks of a society of free people, as opposed to some form of tyranny.

This principle is sometimes mistakenly explained as “You can’t shout fire in a crowded theater.” This statement is flat wrong. A person may be punished afterward for shouting fire in a crowded theater if there is no fire. However, what is not allowed is to place duct tape over the mouths of every entrant to the theater on the theory that without that restraint, some fool will surely and improperly shout “Fire” – that someone will surely abuse the right of free speech if not prohibited with a prior restraint.

But, you may ask, what about that crazy, drunk person dangerously shooting a shotgun at clay pigeons at a fishing access site? Answer: There are already laws (not rules) on the books to punish any conduct that is dangerous to others, such as for endangerment and assault.

Some might argue that the Commission has a duty to provide safety for people using a PUS. Maybe so, but the Commission has a superior duty to the Constitution, both state and federal. The Commission may not simply ignore the Constitution that Commissioners have taken an oath to uphold because of the pursuit of a lesser duty.

Some legal-minded sophomores will likely offer the argument that the proposed rule only prohibits the discharge of firearms (and other arms), and that the Constitution only protects keeping and bearing arms, but not discharge of arms. This sophomore then must also make the argument that although freedom of the press requires that people be allowed to buy printing presses, it doesn’t guarantee that they can actually print anything on these presses. Therefore, the sophomore must claim freedom of the press is satisfied if people can obtain a printing press, even if they are not allowed to print anything. Of course, this is a ridiculous argument, as is the one that “keep or bear” does not include uses such as discharge.

Gary Marbut, President Montana Shooting Sports Association, Author, *Gun Laws of Montana* www.mtpublish.com

About the Montana Shooting Sports Association:

Montana Shooting Sports Association is the primary political advocate for Montana gun owners. Visit: www.mtssa.org