~Basil

Dear MSSA Friends,

Quick update. The Governor's signing for HB 258 has been rescheduled for 9:30 AM on Friday, April 23rd.

Here is the full story about the evolution and effect of HB 258.

In about 2011 I was in New York City to appear live on the Glenn Beck Show to discuss the Montana Firearms Freedom Act. While waiting in the warm-up room, I met Judge Andrew Napolitano and engaged him in conversation, especially about politics in Montana. I told him about MSSA's "Sheriffs First" bill that would make it a state crime for a federal officer to arrest, search, or seize in Montana without the advanced, written permission of the elected county sheriff.

Napolitano commented, "Gary, you don't have to go that far. You only need to not help the feds enforce their gun laws. Without local help, the feds simply don't have the manpower to enforce their gun laws."

That suggestion made a lot of sense to me, so I came back to Montana and wrote that into a bill, which was introduced for MSSA in the 2013 legislative session as HB 302 by Rep. Krayton Kerns. That bill passed the legislature but was vetoed by Governor Bullock

This bill was introduced again in the 2015 legislative session as HB 203, by Rep. Art Wittich. Again the bill passed only to be vetoed by Bullock

This bill was introduced yet again in the 2017 legislative session as SB 99 by Sen. Cary Smith. Yet again, this bill was passed by the Legislature and vetoed by Bullock.

That gets us to 2021 when the bill was introduced as HB 258 by Rep. Jed Hinkle.

HB 258 has both an immediate effective date and a retroactive effect. That is, when signed by Governor Gianforte, HB 258 becomes immediately active, and it applies to any new federal laws, executive orders, regulations, rules, or new interpretations of old laws that became effective after January 1st of this year.

For anyone who may have been Zenning on a mountaintop, HB 258 prohibits state and local government employees from enforcing or assisting in enforcement of new federal gun control. This will primarily affect city police officers and county deputy sheriffs, but also to a lot of other state and local government employees.

People have asked why I didn't include any penalties for violation or noncompliance in HB 258, as I often do when drafting legislation. There are two primary reasons.

First, it is my strong impression that Montana cops don't want to be enforcing any new federal gun control, such as a ban on modern sporting rifles or a ban on standard capacity magazines. All they really need is a green light in law to NOT enforce this stuff. We will monitor this over the next couple of years. If there seems to be widespread non-compliance or abuse, we can always come back to the Legislature with a bill to add penalties for non-compliance.

The second reason is that enforcement of this may be tricky, and I think Montana police need some latitude to make decisions on the spot concerning fuzzy situations where HB 258 might or might not apply. At least for now, I don't think Montana police should be under any threat of penalty as they sort through such gray areas.

For example, suppose a couple of sheriffs deputies cooperate with the DEA to bust a meth lab. Suppose they find there some firearms or accessories recently banned by federal fiat. What are the deputies supposed to do? I think they need the latitude to make a judgement call at that point, a call not influenced or encumbered with the threat of possible sanctions for making the wrong call.

There could well be other situations where an officer's ability to make an informed decision on the spot should not be under threat of any sanction for how the call is made. One example might be a vanload of illegal aliens (yeah, "undocumented workers") that contains a banned item. Or, local cops might get information about local gang activity involved in stockpiling firearms that would qualify under HB 258. Can they pass this intel on to the feds?

So, I think we need a while to monitor this, to see how it plays out, and to see how Montana cops perform under HB 258. My prediction is that it will work just fine as is, without penalties for non-compliance. If I am wrong, we can always add penalties for non-compliance to the law created by HB 258 in two years. Plus, if there should be an egregious case of non-compliance, a prosecutor could always levy a charge of Official Misconduct, a law rarely used but available now.

I will be most interested to hear what various Montana law enforcement agencies schedule and deliver to their personnel as training about HB 258 compliance. Will agencies think through and deliver such training, or will they simply expect HB 258 information to percolate through to their employees by osmosis? If they design and conduct specific training about HB 258, what will the content be? What training is delivered may be an indication about how compliance on the street will be.

HB 258 is not some magic unicorn potion, but it should be very helpful in protecting Montana gun owners from the abuse of new federal gun control.

It is also helpful that the concept is spreading to other states since MSSA first ran this up the legislative flagpole in 2013. There are now about a dozen other states that are working on or have enacted clones of this bill. If enough states do this, that should provide a significant disincentive for the adoption of new federal gun control. Adoption of unenforceable laws only breeds disrespect for the law in general.

A good example in history is the federal Fugitive Slave Act, adopted before the Civil War. That Act made it a crime to aid a runaway slave. The problem was that the feds simply could not get enforcement of that law in northern states. Juries would not convict people of violating the Act and prosecutors became reluctant to even bring prosecutions under the Act. Plus, local law enforcement deemed it a very low priority, or even objectionable, to conduct any enforcement of the Act. That Act was effectively nullified through non-enforcement.

Some current federal policy-makers may have slept through the history class where the lesson from the Fugitive Slave Act was discussed. They may learn the lesson anew with federal gun control when enough states refuse to enforce it.

So, let HB 258 be a signal to the policymakers in D.C. that Montana doesn't need or want a raft of new federal gun control, and that we won't help them enforce it if they send it our way (Senator Tester, are you listening?) Plus, we can always run our Sheriffs First bill again, if necessary.

Finally, feel free to share this email with any law enforcement friends, just in case their employers fail to provide any or appropriate training on the subject of HB 258.

Best wishes,

--
Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.mtpublish.com