Guns and laws (Photo illustration by Darrell Ehrlick of the Daily Montanan)
From the looks of it, the Montana Supreme Court has a lot of friends.
That’s one conclusion to be drawn from the stacks of paper submitted as “friends of the court” briefs in a lawsuit regarding House Bill 102, which expanded the right to carry firearms in Montana, including on public campuses. Late last year, a district court found parts of the law unconstitutional because Montana vests control of public universities with the Board of Regents.
Montana Attorney General Austin Knudsen appealed the outcome on behalf of the State of Montana.
“The district court’s ruling effectively transforms the Board (of Regents) into a fourth branch of Montana government — a branch possessed of both legislative and executive powers,” said Knudsen in the appeal. “But it gets worse. According to the district court, this new, fourth branch need submit to public policy of the State only to the extent the Board agrees with those policy judgments.”
Since then, a long list of other parties have formally submitted briefs, including Daniels County, students and employees of the Montana University System, Republican lawmakers, and, jointly from outside Montana, the Second Amendment Foundation, Idaho Second Amendment Alliance, and Madison Society Foundation.
“As a neighboring state, Montana’s gun policies might influence policies in Idaho, therefore ISAA and its members seek to monitor and influence policy and litigation in Montana that may impact Idahoans,” said the Idaho Second Amendment Alliance to the state Supreme Court.
Lead bill sponsor Rep. Seth Berglee, a Republican from Joliet, is among the interested parties, but so are 80 other GOP legislators, according to a separate brief. HB 102 was adopted in 2021 by the Republican-majority Legislature and, at a ceremony, signed into law by Republican Gov. Greg Gianforte.
“Amicus Rep. Berglee was the prime sponsor of HB102 so he knows why the campus carry provisions of the bill were passed,” said his court filing by the Overstreet Law Group of Stevensville. “They were to enforce Montanans’ constitutional right to lawfully carry firearms on MUS (Montana University System) campuses.”
In a brief opposing the bill, “a diverse coalition of university system stakeholders” argues the Regents are close to those whom they serve, and their governance structure appropriately places student voices “front and center.”
“Norris Blossom, the president of the Associated Students of Montana State University, testified that the students he represents ‘feel that the power traditionally delegated to the Board of Regents which provides the venues for that student voice and governance is being disregarded,’” said the brief from students, former Regents, the Montana Federation of Public Employees, faculty and other parties represented by Goetz, Geddes and Gardner of Bozeman and the Graybill Law Firm of Great Falls.
In their arguments, the groups said the university community overwhelmingly opposes HB102: “They denounce it as an intrusion into the internal affairs of the Montana University System and an assault on the constitutionally guaranteed independence of the Board of Regents.
“This conspicuous disconnect between the legislature and affected stakeholders confirms the wisdom of the framers of the 1972 Montana Constitution.”
The parties said research shows guns on campus could hinder hiring and retention of qualified faculty, chill free speech, disrupt classroom dynamics, and disproportionately affect people from “vulnerable populations who are more likely to view an armed classroom as unsafe.” They argued mental health should be considered too and pointed to a resident director who stated firearms wouldn’t result in better outcomes in any of the emergencies he witnessed.
“The amici respectfully submit that HB102 is an aspect of a broader effort to displace traditional modes of governance in the University System and subordinate academic values to transient political will,” said the brief.
Daniels County weighed in on the case too, arguing that allowing the Regents “uncontrolled discretion to grant or refuse a student or university employee the right ‘to keep or bear arms … imposes an unconstitutional prior restraint” on freedoms protected by the Montana Constitution.
“Dozens of Daniels County residents are currently students in the Montana University System and hundreds more visit MUS campuses each year,” said one of the court documents filed by the O’Toole Law Firm of Plentywood. “The residents of the County of Daniels overwhelmingly support the contents of House Bill 102, and County of Daniels residents have a desire to keep themselves and other community members safe on MUS campuses through the lawful carry of concealed firearms.”
In another brief, the Montana Shooting Sports Association noted the District Court rejected its focus on the right to keep and bear arms and prohibited discussion on that topic in favor of the scope of Article X, Section 9 of the Constitution, about the Regents’ authority, as it relates to HB 102. (In part, the Montana Constitution says the following about boards of education: “The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system and shall supervise and coordinate other public educational institutions assigned by law.”)
Represented by Rhoades and Erickson of Missoula, the Montana Shooting Sports Association argued that Article X shouldn’t be considered in isolation, but in the context of the rest of the Constitution, including “the rights the people have reserved to themselves specifically from government interference.”
The Association said the district court made a mistake in finding one of the fundamental rights in Article II of the Montana Constitution doesn’t apply on campuses, and it didn’t consider the “gravity” of those rights: “The implication is that the Board of Regents can force citizens to surrender fundamental constitutional rights as a condition of attending a public institution of higher learning.”
The Montana Shooting Sports Association described the idea as “deeply flawed” and said “tradeoffs in human rights in exchange for public services are made only in totalitarian regimes.”
In their own argument, the Regents note the issue is “narrow and uncomplicated.” “The Court must decide whether the Board or the Legislature has the exclusive constitutional authority to regulate firearms on MUS campuses and other MUS locations.”
The Regents argue the Constitution is clear, and that historical context “without question” also supports the full authority of the Regents in part to “insulate the Board and the MUS from the kind of politically charged legislation the State now seeks to impose on the MUS through HB102.” They also note the state Supreme Court has acknowledged and defined the Regents’ “full authority” in three cases.
“The Board possesses the exclusive authority to ensure the health and stability of the MUS,” said the Regents, represented by the Sheehy Law Firm of Billings, Holland & Hart of Billings, and MUS legal counsel. “Undoubtedly, this authority includes the right and duty to determine, implement, and manage firearm policies for the MUS. House Bill 102 invades the Board’s constitutional authority and is therefore unconstitutional as applied to the Board.”
In a phone call Tuesday, Clerk of Court Bowen Greenwood said briefs have been filed, and the court will determine if a panel of judges or the full court will decide the case on the briefs, or whether the full court will hear oral arguments. He said 90 percent or more of the cases with the state Supreme Court are decided on the briefs, but either way, the court has been moving fairly quickly in high profile cases.
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