On Tuesday, Lewis and Clark County District Court Judge Michael McMahon struck down provisions of Montana’s new “constitutional carry” law that apply to college campuses, ruling that the law violates the constitutional authority of the Montana Board of Regents. The board filed the lawsuit against the state in May.
In his order, issued shortly after the latest round of oral arguments in the case, McMahon said the Montana Constitution grants the Board of Regents (BOR) sole power to determine firearm policies on campuses within the Montana University System. McMahon permanently barred the state from applying or enforcing provisions of the new law on those campuses.
The order settles, at the district court level, a case that arose from the Legislature’s passage of House Bill 102, which revised state gun laws in part to allow concealed carry on campuses and was signed into law by Gov. Greg Gianforte Feb. 18. Attorney General Austin Knudsen responded to the ruling by filing an appeal with the Montana Supreme Court on Tuesday. Emilee Cantrell, a spokesperson for Knudsen’s office, emailed the following statement to Montana Free Press on Wednesday:
“We disagree with the judge’s decision. State law applies on college campuses. The Board of Regents does not have the power to pick and choose which state laws it will follow. Montanans do not forfeit their constitutional rights when they step foot onto a college campus.”
The Board of Regents initially filed its complaint with the state Supreme Court in May, challenging HB 102 as an unconstitutional infringement of its authority. The court declined to accept jurisdiction, and the board redirected its challenge to the district court in Helena on May 27. The same day the case was filed, McMahon issued an order temporarily blocking the state from implementing HB 102 on campuses. He later extended that order in June.
“In seeking judicial review of HB 102, we sought clarity on the question of whether the Legislature or the Board of Regents has the authority to regulate firearms on university system property,” BOR Chair Casey Lozar said in an emailed statement Wednesday. “The Board appreciates the clarity provided by the district court yesterday and will await further review by the Montana Supreme Court on appeal.”
In defending the state, Knudsen argued that the Legislature has constitutional authority to regulate firearms in the state, framing HB 102 as a public health and safety measure. Knudsen’s office, in legal filings, also referenced several other states that permit firearms on campuses to support its position.
McMahon rejected that argument Tuesday.
“Montana is, respectfully, incorrect when it boldly argues ‘[t]he bottom line is that the Legislature is the Legislature, even on MUS campuses,’” McMahon wrote. “While that position may be true in Texas, Colorado, Utah and Georgia, the 1972 constitution delegation had the intent, foresight, and wisdom to ensure that in Montana, the BOR would be ‘free from excessive legislative control’ and political bureaucracy.”
McMahon’s ruling aligned with the primary concern outlined in a legal review note prepared by the Legislative Services Division during the drafting process for HB 102 in December 2020. Even so, the bill’s sponsor, Rep. Seth Berglee, R-Joliet, called the ruling’s implications “shocking” in an emailed statement Wednesday afternoon. He characterized McMahon’s order as granting the Board of Regents full control over a long list of rights guaranteed in the Montana Constitution, including free speech, religion, privacy, individual dignity, and the right to bear arms.
“That unelected Board of Regents members would have the ability to unilaterally limit these constitutional rights should be a concern to all Montanans,” Berglee wrote.
HB 102 has also been challenged in Gallatin County District Court by the Montana Federation of Public Employees and a collection of individuals and faculty organizations. That lawsuit additionally challenges three other laws passed in 2021 and is still winding its way through the court, which has yet to rule on a motion to dismiss filed by the state in September.
This story was updated Dec. 1, 2021, to include post-publication comment from HB 102 sponsor Rep. Seth Berglee.
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