Text

The 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.

History

Sources

The current language protecting Montanan's right to bear arms is identical to the 1889 Constitution.Proposed 1972 Constitution, official text with explanation. The language from the 1889 Constitution was adopted mostly from the 1884 draft constitution, except that it changed the carveout language for carrying of concealed weapons. Similar language is found in the Missouri,<ref name=Missouri>Mo. Const. art. III, sec. 12 and Colorado Constitutions<ref name=Colorado>Colo. Const. art. III, sec. 12 ratified around the same time.

Proposed 1884 Montana Constitution

"That the right of any person to keep and 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 construed to justify the practice of carrying concealed weapons."Proposed 1884 Mont. Const. Art. I Sec. 13.

1889 Constitutional Convention

Section 13 of the 1889 Constitution may never have been included but for the astute observation of one of the delegates, who rose and commented that the right to bear arms provision "seemed to have been left out by the Committee for some reason or another," whereupon the provision was moved and seconded.<ref name=proceedings> Proceedings and Debates of the Constitutional Convention 119

Delegate Walter A. Burleigh of Miles City provided the only debate on the provision:

Mr. President, I desire to call the attention of the convention to the difficulty that has existed in many of the counties in regard to the carrying of concealed weapons. The object of the law to prevent the carrying of concealed weapons is to obviate and prevent these quarrels in the streets, by which many lives are lost, and great danger to the persons [sic] is inflicted, and it has been held by a great many of our inferior courts that it is no violation of the law when a man does not keep the weapon concealed in his pocket. I would call the attention of the convention, without making any suggestion as to the remedy, of what seems to me an important measure in preventing the carrying of the deadly weapons in towns and cities, whether concealed or not. It would certainly prevent a great deal of crime, a great many outrages, a great deal of personal injury and a great many lives. I would like to hear from some of the members of the convention on the subject.<ref name=proceedings> Proceedings and Debates of the Constitutional Convention 119

He apparently received no discussion.Rick Applegate, Montana Constitutional Convention Commission, Constitutional Convention Study No. 10, Bill of Rights p. 117 (1971) (citing Montana, Constitutional Convention of 1889, Proceedings and Debates of the Constitutional Convention (Helena: State Publishing Co., 1921), P. 253).

1889 Montana Constitution

"The 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."1889 Mont. Const. Art. II Sec. 12.

Federal Law

Second Amendment to the U.S. Constitution "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."U.S. Const. Am. 2.

United States v. Cruikshank, 92 U.S. 542 (1876)

Presser v. State of Illinois, 116 U.S. 252 (1886)

United States v. Miller, 307 U.S. 174 (1939)

Lewis v. United States, 445 U.S. 55 (1980)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. City of Chicago, 561 U.S. 742 (2010)

Other State Constitutions

1875 Missouri Constitution "That the right of no citizen to keep and bear arms in defence [sic] of his home, person and property, or in aid of the civil power, when thereto legally summoned, shall be called into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons."1875 Missouri Const. Art. II, Sec. 17.

1876 Colorado Constitution "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."Colorado Const. Art. II Sec. 13.

Montana Constitutional Convention

The Montana Constitutional Convention Studies were prepared to provide delegates with "historical, legal and comparative information about the Montana Constitution."Rick Applegate, Montana Constitutional Convention Commission, Constitutional Convention Study No. 10, Bill of Rights p. iii (1971).

The study on the right to bear arms started with a discussion of the English Bill of Rights of 1686, which granted subjects the right to have arms for defense as allowed by law.Id. at 118. It next addressed the state of the federal right, which at the time, appeared tied closely to having a well regulated militia.Id.(citing U.S. v. Miller, 307 U.S. 174, 178 (1939). The commission also recognized that the 1889 Montana provision was drafted very different and clearly provides an individual right to use arms for protection.Id. at 119. The Commission note concluded by recognizing the ongoing debate over the proper scope of firearm regulation and its policy implications.Id. at 120-122.

Drafting

Delegate Proposal No. 4 (Berthelson, Earl) "The inalienable right of the individual citizen to keep and bear arms for the defense of himself, other persons, and the state shall not be infringed, but the military shall be kept in strict subordination to the civil power. The right of the people to keep and bear arms shall include, but not be limited to, the right of the individual citizen to acquire, possess, own and use firearms, ammunition and its components for the lawful defense of himself, his home, his property, other persons, and the state, or in aid of the civil power when thereto legally summoned, for the training and practice necessary, to achieve a level of competence appropriate thereto, and for marksmanship, recreation, hunting and other lawful purposes. No registration, transfer, or licensing requirement: or licensing, transfer or registration tax shall ever be imposed upon the right of the individual citizen to acquire, transfer, possess, own or use firearms, ammunition and its components, but nothing herein contained shall be held to permit the carrying of concealed weapons."

Delegate Kellelher did not formally propose striking Section 12 but made clear his desire to do so "I urge you to strike Section 12, stop making America an armed camp where we settle every dispute like in the days of old, in the mining camps at Alder Gulch, with a .44. WE have courts in Montana-and state courts and federal courts-and they are there with the help of lawyers to settle any disputes that you have. You don't need to settle your disputes with a gun."Verbatim Transcript 1836 (Mar. 9, 1972).

Rejection and Adoption The delegates rejected proposal No. 4 because there was no current plan to require registration of firearms in Montana but many felt that registration may be necessary in the future. They adopted the original text of Article III Section 13 of the 1889 Montana Constitution. Verbatim Transcript 1724-44 (Mar. 8, 1972).

Delegate Proposal No. 8 (Berthelson, Earl) "...nor shall any person's firearm be registered."

Delegate Murray stated "I do clearly want to state to you that I am in favor of the Berthelson amendment for on particular reason, and that is the matter of practical politics. I can't think of one single thing that we could add to our Constitution that would attract voters faster than the adoption of this particular amendment." Verbatim Transcript 1728-29 (Mar. 8, 1972).

Delegate Erdmann stated "I support the Berthelson amendment for the very reason that I couldn't be honestly supporting the voters of Cascade County who sent me here if I didn't endorse it. I have had more personal telephone calls, more letters, more petitions, mass media messages from this group of people in Montana than any others." Verbatim Transcript 1727 (Mar. 8, 1972).

Delegate Blaylock felt the proposal was not necessary, stating that Section 12 was already "the strongest of all the states." Verbatim Transcript 1726 (Mar. 8, 1972).

Rejection and Adoption Ultimately, Proposal No. 8 was defeated 52-43. Verbatim Transcript 1726 (Mar. 8, 1972).

References