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Not long after Missoula-based reporter Max Savage Levenson wrote MTFP’s definitive guide to Montana’s new adult-use marijuana program last month, we started getting hints from readers about a little-discussed apparent conflict between federal firearms law and Montana’s medical and, more recently, recreational legalization of marijuana. To wit: Possession of a firearm by a person who also possesses marijuana is a federal crime carrying penalties of up to 10 years in jail.
Wait, what?
In a state in which an estimated 66% of adults own at least one gun, tens of thousands of residents have a medical marijuana card, and untold thousands more now have access to retail marijuana sales, that seemed like a recipe for a whole lot of legal risk.
I asked Max to find out if it was true. Turns out it is.
How much practical risk the conflict raises for Montanans remains unknown. Federal officials have not lately been in the habit of enforcing the continued federal prohibition on marijuana in jurisdictions, like Montana, that have legalized its sale and use. But then again there’s quite a bit of federal land in Montana, and a marijuana user pulled over for a traffic stop in a national park with a gun in the vehicle could conceivably find himself at the mercy of prosecutorial discretion with enormous consequences. In any case, “don’t worry, they usually don’t enforce” seems like dubious legal advice when you’re staring down the barrel of a prison sentence.
Max’s story was far and away the most-read article at montanafreepress.org last week, affirming our suspicion that many Montanans were unaware of the bind. Many more still don’t know what, if anything, might be done about it, or if tens of thousands of Montanans are supposed to just blithely go about their gun-toting, weed-smoking, federally criminalized business trusting that nobody really cares about enforcing the law anyway.
Of course there’s a fix available. The federal government could, for example, declassify marijuana as a Schedule 1 Controlled Substance. Given how many of their constituents are potentially caught up in the conflict between inconsistent jurisdictions, Montana’s federal elected officials ought to have opinions about that. You can bet Max will be back next week with a report on what they are.
—Brad Tyer, Editor
By the Numbers 🔢
Percentage of collisions on U.S. Highway 191 between Four Corners and Big Sky that were wildlife-related, more than all other crash causes evaluated in a 10-year study released in 2020.
A 10-mile stretch of highway on that corridor just south of Four Corners is the second-deadliest for wildlife in the state, according to a 2016 analysis prepared by the Center for Large Landscape Conservation based on Montana Department of Transportation data.
The final installation in MTFP’s wildlife crossings series examines what happens when prime habitat within the Greater Yellowstone Ecosystem and one of the busiest highways in the state converge.
Verbatim 💬
“The Gun Control Act (GCA) prohibits a person who uses a controlled substance from possessing a firearm or ammunition.”
—Bureau of Alcohol, Tobacco, Firearms and Explosives Public Information Officer Crystal McCoy, confirming that a 1968 federal law criminalizes gun possession by anyone possessing or using marijuana, regardless of the drug’s legality under state jurisdiction.
Hot Potato 🥔
For more than 20 years, Montana has legally understood abortion access to be a protected medical procedure and expression of bodily autonomy under the state Constitution’s right of privacy. According to Montana Attorney General Austin Knudsen, it’s high time for that to change.
In a brief filed with the Montana Supreme Court late Wednesday, Knudsen’s office argued that the court should reverse the ruling that has underpinned that protection since the late 1990s: Armstrong v. State.
“Armstrong … was a breathtaking exercise in judicial activism, and it was manifestly wrong,” the filing said. “[I]t is unworkable, and Montana women don’t need it. It should infect Montana’s jurisprudence no longer.”
The brief was filed as part of Planned Parenthood v. Montana, which challenges three abortion restrictions signed into law by Gov. Greg Gianforte last year. Those laws have been put on hold by a Yellowstone District Court judge since October while the case proceeds. The state is now appealing that injunction.
Planned Parenthood of Montana CEO Martha Fuller panned the attorney general’s brief in a Thursday statement to the Daily Montanan.
“We hope the Montana Supreme Court sees this stunt for what it is and affirms the state constitution which clearly protects the right to privacy and access to safe abortion services in Montana,” Fuller said.
The Supreme Court has not yet ruled on the case.
—Mara Silvers
The Viz 📈
One way to make sense of how the COVID-19 pandemic has rippled through Montana’s economy is to look at month-by-month employment statistics over the last two years. Those figures, tabulated by the U.S. Bureau of Labor Statistics and currently updated through November 2021, provide official counts of the number of Montanans who are employed, unemployed, and outside the state’s labor force. That latter category includes adults who aren’t working or seeking work because, for example, they are retired or spending their time caring for children.
Montana’s unemployment rate — i.e., the percentage of workers in the labor force who aren’t employed — tripled in the initial stages of the pandemic, as then-Gov. Steve Bullock, a Democrat, issued wide-ranging stay-at-home orders in an effort to limit the virus’ spread while public health institutions scrambled to prepare for its onslaught. The state’s seasonally adjusted unemployment rate rose from 3.7% in February 2020 to 11.9% in April 2020.
Republican Gov. Greg Gianforte, who took office at the beginning of 2021, has touted his leadership of a “Montana comeback” from the pandemic. Last month, for example, his office noted that the state’s unemployment rate had fallen to 2.8%, a tie for the lowest mark ever recorded. In a nod to widespread concern about worker shortages, the governor’s office also pointed out that the number of working Montanans is at an all-time high of 528,142.
Month-by-month data puts those figures in context. Unemployment had already fallen substantially, to 4.0%, by the time Gianforte took office, for example. And while the state workforce has grown, that’s in part because the state’s working-age population has also increased by more than 8,500 people since January 2021. As a result, the percentage of Montana adults who are employed has remained relatively constant, from 59% in January 2021 to 60.3% in November.
—Eric Dietrich
Following the Law ⚖️
Montana has a long reputation as a state that takes transparency in political campaign practices seriously. On Tuesday, one of the laws underpinning that transparency — a 14-year-old statute known as the Clean Campaign Act — was struck down by a federal judge as a violation of free speech.
The ruling arose from a legal challenge filed last September by Montana Citizens for Right to Work, an organization that advocates sweeping changes to state policy governing labor unions. The group ran afoul of the Clean Campaign Act in 2020 after distributing a political mailer six days before the fall election without providing copies to all the candidates mentioned, as is required by the law. A senior adviser with the Montana Democratic Party filed a complaint about the lack of notice, and Commissioner of Political Practices Jeff Mangan found MCRTW in violation, for which he fined the group $8,000. The group responded by taking the matter to court, arguing the law was unconstitutional.
The Clean Campaign Act has been a part of Montana’s campaign landscape since 2007. It took former Republican state lawmaker Joe Balyeat three attempts in three legislative sessions to get it on the books, but when he finally succeeded, he did so with strong bipartisan support. Balyeat’s entry into the annals of campaign transparency required political groups to furnish copies of any advertisements distributed within 10 days of an election to every candidate named in the ad. The only exception was for candidates endorsed in such ads, and that stipulation proved central to U.S. District Court Judge Donald Molloy’s decision this week.
Molloy wrote that by treating endorsements differently than non-endorsements, the act was a content-based regulation of campaign messaging, prompting him to apply what lawyers know as “strict scrutiny.” In other words, the burden fell on Mangan, the defendant, to prove that the interests served by the law justify any effect it might have on individual rights. Mangan put up a three-pronged fight on that front, arguing that the Clean Campaign Act deters corruption, informs the electorate, and protects a candidate’s right to respond to false or negative messaging late in a campaign. Molloy was unconvinced on all three counts, writing, “last-minute negativity is a reality whether endorsed or not.”
“Many would agree that while Montana’s desire to promote discourse in response to negative campaign advertisements is laudable, the First Amendment cannot be so easily overcome,” Molloy concluded.
Mangan says his office hasn’t yet decided whether to appeal the ruling. For now, the Clean Campaign Act is a relic of past campaign cycles deemed unconstitutional by the courts. And with the 2022 election cycle quickly taking shape, candidates filing for office can no longer expect to be notified where and in what context their names might be put before voters at the 11th hour.
—Alex Sakariassen
On Our Radar 
Amanda Eggert — Like other outdoor sports including fishing and mountain biking, backcountry skiing has surged during the pandemic, leading to an increasing number of people in avalanche-prone areas. This Colorado Sun story explores efforts like educational podcasts and smartphone apps to help make backcountry skiing safer for the newbie masses.
Mara Silvers — Montana is one of several states struggling to regulate the “troubled teen” industry as patient advocates continue to raise concerns about the safety of young people placed in such facilities. This sharp Kaiser Health News/USA Today story takes a look at regional reform efforts currently underway, and their shortcomings.
Alex Sakariassen — Montana’s education system is facing a lot of universal challenges right now. But for individual public schools, there are often just as many local issues demanding equal attention. A prime example popped up this week in the Choteau Acantha, which covered the beginnings of a debate over whether one rural Montana high school’s rigorous grading scale encourages a strong work ethic or handicaps students attempting to get into college.
Eric Dietrich — As if the wildfire that destroyed nearly 1,100 homes in suburban Denver last month wasn’t devastating enough, the Colorado Sun is now reporting that material and labor shortages are complicating efforts to rebuild.
* Some articles may be behind a paywall.