HOUSE BILL NO. 566

INTRODUCED BY M. BRAINARD, D. HAINES, S. BOOKOUT-REINICKE, R. CLARK, A. CURTISS,

B. DAVIES, D. FUCHS, D. HEDGES, R. JORE, D. MCGEE, J. MCKENNEY, K. MILLER, B. MOLNAR,

J. SHOCKLEY, J. WELLS

A BILL FOR AN ACT ENTITLED: "AN ACT AUTHORIZING AN INTERIM STUDY OF METHODS FOR A STATE LAW ALTERNATIVE METHOD FOR FIREARMS RECORDS CHECKS OF PURCHASERS; RESERVING TO THE STATE THE GOVERNMENTAL RIGHT TO SUE FIREARMS AND AMMUNITION MANUFACTURERS, TRADE ASSOCIATIONS, AND DEALERS TO THE STATE IN CERTAIN TYPES OF CASES; REVISING LAWS RELATING TO CONCEALED WEAPONS PERMITS, SILENCERS, AND THE POSSESSION OF A WEAPON IN A SCHOOL BUILDING WITH THE PURPOSE TO COMMIT A CRIMINAL OFFENSE; AND AMENDING SECTIONS 45-8-321, 45-8-322, 45-8-337, AND 45-8-361, MCA."

WHEREAS, the Second Amendment to the Constitution of the United States provides that "the right of the people to keep and bear arms shall not be infringed"; and

WHEREAS, documents written by the founding fathers clearly indicate that the right to keep and bear arms includes the keeping and bearing of firearms for personal use and protection unrelated to the necessity of a well-regulated militia to the security of a free state; and

WHEREAS, Article II, section 12, of the Montana Constitution provides that the "right of any person to keep or bear arms in defense of his own home, person, and property . . . shall not be called in question"; and

WHEREAS, Article II, section 3, of the Montana Constitution grants all persons the inalienable right of defending their lives and liberties and protecting property; and

WHEREAS, the Legislature seeks to facilitate the exercise of the above rights, expedite the purchase of firearms, and further the protection of the lives and property of the people.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Interim study for state law alternative method of complying with national instant criminal background check system. (1) An interim study is authorized to recommend legislation for the 57th regular legislative session to implement a valid state law alternative method of complying with the national instant criminal background check system requirements prior to transfer of a firearm. The study should focus on the development of cost-effective, minimally intrusive options for implementation of a state law alternative method that would comply with the exception provided under 27 CFR 178.102(d) pursuant to the federal Brady Handgun Violence Prevention Act.

(2) The legislative council shall assign the interim study required under this section to the appropriate interim committee.

NEW SECTION. Section 2. Governmental right to sue firearms or ammunition manufacturer, trade association, or dealer in tort or for abatement or injunctive relief. The governmental right to bring suit against a firearms or ammunition manufacturer, trade association, or dealer for abatement, injunctive relief, or tort damages resulting from or relating to the design, manufacture, marketing, or sale of firearms or ammunition sold to the public is reserved exclusively to the state and may not be exercised by a local governmental unit. The state may sue under this section on its own behalf or on behalf of a local governmental unit, or both.

Section 3. Section 45-8-321, MCA, is amended to read:

"45-8-321. Permit to carry concealed weapon. (1) A county sheriff shall, within 60 days after the filing of an application, issue a permit to carry a concealed weapon to the applicant. The permit is valid for 4 years from the date of issuance. An applicant must be a United States citizen who is 18 years of age or older and who holds a valid Montana driver's license or other form of identification issued by the state that has a picture of the person identified. An applicant must have been a resident of the state for at least 6 months. Except as provided in subsection (2), this privilege may not be denied an applicant unless the applicant:

(a) is ineligible under Montana or federal law to own, possess, or receive a firearm;

(b) has been charged and is awaiting judgment in any state of a state or federal crime that is punishable by incarceration for 1 year or more;

(c) has been convicted in any state or federal court of a crime punishable by more than 1 year of incarceration or, regardless of the sentence that may be imposed, a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, violence, bodily or serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent;

(d) has been convicted under 45-8-327 or 45-8-328, unless the applicant has been pardoned or 5 years have elapsed since the date of the conviction;

(e) has a warrant of any state or the federal government out for the applicant's arrest;

(f) has been adjudicated in a criminal or civil proceeding in any state or federal court to be an unlawful user of an intoxicating substance and is under a court order of imprisonment or other incarceration, probation, suspended or deferred imposition of sentence, treatment or education, or other conditions of release or is otherwise under state supervision;

(g) has been adjudicated in a criminal or civil proceeding in any state or federal court to be mentally ill, mentally defective, or mentally disabled and is still subject to a disposition order of that court; or

(h) was dishonorably discharged from the United States armed forces.

(2) The sheriff may deny an applicant a permit to carry a concealed weapon if the sheriff has reasonable cause to believe that the applicant is mentally ill, mentally defective, or mentally disabled or otherwise may be a threat to the peace and good order of the community to the extent that the applicant should not be allowed to carry a concealed weapon. At the time an application is denied, the sheriff shall, unless the applicant is the subject of an active criminal investigation, give the applicant a written statement of the reasonable cause upon which the denial is based.

(3) An applicant for a permit under this section must, as a condition to issuance of the permit, be required by the sheriff to demonstrate familiarity with a firearm by:

(a) completion of a hunter education or safety course approved or conducted by the department of fish, wildlife, and parks or a similar agency of another state;

(b) completion of a firearms safety or training course approved or conducted by the department of fish, wildlife, and parks, a similar agency of another state, a national firearms association, a law enforcement agency, an institution of higher education, or an organization that uses instructors certified by a national firearms association;

(c) completion of a law enforcement firearms safety or training course offered to or required of public or private law enforcement personnel and conducted or approved by a law enforcement agency;

(d) possession of a license from another state to carry a firearm, concealed or otherwise, that is granted by that state upon completion of a course described in subsections (3)(a) through (3)(c); or

(e) evidence that the applicant, during military service, was found to be qualified to operate firearms.

(4) A photocopy of a certificate of completion of a course described in subsection (3), an affidavit from the entity or instructor that conducted the course attesting to completion of the course, or a copy of any other document that attests to completion of the course and can be verified through contact with the entity or instructor that conducted the course creates a presumption that the applicant has completed a course described in subsection (3).

(5) If the sheriff and applicant agree, the requirement in subsection (3) of demonstrating familiarity with a firearm may be satisfied by the applicant's passing, to the satisfaction of the sheriff or of any person or entity to which the sheriff delegates authority to give the test, a physical test in which the applicant demonstrates the applicant's familiarity with a firearm."

Section 4. Section 45-8-322, MCA, is amended to read:

"45-8-322. Application, renewal, permit, and fees. (1) The application form must be readily available at the sheriff's office and must read as follows:

CONCEALED WEAPON PERMIT APPLICATION

To be completed by each person making application:

RESIDENT OF MONTANA AT LEAST 6 MONTHS	( ) Yes	( ) No

CITIZEN OF THE UNITED STATES	( ) Yes	( ) No

18 YEARS OF AGE OR OLDER	( ) Yes	( ) No

PLEASE TYPE OR PRINT

Full name:

Last	First	Middle

Alias/Maiden/Nickname:

Address: Home:	Zip ..........

Employer:	Zip ..........

Phone:	.................../	.................../	...................

Home	Employer	Message

Place of birth:	Date of birth: ...............

Driver's license #:	Issuing state: ...............

Sex ....... Ht. ........ Wt. ........ Eyes ........ Hair ........

LIST EACH FORMER EMPLOYER OR BUSINESS ENGAGED IN FOR THE LAST 5 YEARS:

Employer or

business name	Address	Dates of employment

1.	..................................	............................................	.................................

2.	..................................	............................................	.................................

3.	..................................	............................................	.................................

4.	..................................	............................................	.................................

5.	..................................	............................................	.................................

6.	..................................	............................................	.................................

LIST EACH PLACE IN WHICH YOU HAVE LIVED FOR THE LAST 5 YEARS:

City	State	Dates of residence

1.	.............................	..............................	.................................

2.	.............................	..............................	.................................

3.	.............................	..............................	.................................

4.	.............................	..............................	.................................

5.	.............................	..............................	.................................

6.	.............................	..............................	.................................

MILITARY SERVICE, BRANCH	FROM ............. TO .............

TYPE OF DISCHARGE .................................... RANK UPON DISCHARGE .......................................

HAVE YOU EVER BEEN ARRESTED FOR OR CONVICTED OF A CRIME OR FOUND GUILTY IN A COURT-MARTIAL PROCEEDING?

( ) YES	( ) NO

IF YES, COMPLETE THE FOLLOWING (Exceptions: minor traffic violations) (Attach additional sheet if necessary):

City	State	Charge	Date

1.	...........................	................................	...................................	...............................

2.	...........................	................................	...................................	...............................

3.	...........................	................................	...................................	...............................

4.	...........................	................................	...................................	...............................

5.	...........................	................................	..................................	...............................

LIST THREE PERSONS WHOM YOU HAVE KNOWN FOR AT LEAST 5 YEARS THAT WILL BE CREDIBLE WITNESSES TO YOUR GOOD MORAL CHARACTER AND PEACEABLE DISPOSITION (DO NOT include relatives or present/past employers):

Name	Address	Phone

1.	................................................	.............................................	.............................

2.	................................................	.............................................	.............................

3.	................................................	.............................................	.............................

I, the undersigned applicant, swear that the foregoing information is true and correct to the best of my knowledge and belief and is given with the full knowledge that any misstatement may be sufficient cause for denial or revocation of a permit to carry a concealed weapon. I authorize any person having information concerning me that relates to the information requested by this application and the requirements for a concealed weapon permit, either public record or otherwise, to furnish it to the sheriff to whom this application is made.

....................................................

Signature

..............................

Date of application

This application must be

signed in the presence of

the sheriff or a designee.

(2) The application must be in triplicate. The applicant must be given the original at the time the completed application is filed with the sheriff, the sheriff shall keep a copy for at least 4 years, and a copy must, within 7 days of the sheriff's receipt of the application, be mailed to the chief of police if the applicant resides in a city or town with a police force.

(3) The fee for issuance of a permit is $50. The permit must be renewed for additional 4-year periods upon payment of a $25 fee per renewal and upon request for renewal made within 90 days before expiration of the permit. The permit and each renewal must be in triplicate, in a form prescribed by the department of justice, and must at a minimum include the name, address, physical description, signature, driver's license or state identification card number, and a picture of the permittee. A person in the United States armed forces satisfies the requirement of submitting a picture if the person submits pictures of the front of the person's military identification card and the person's Montana driver's license. The permit must state that federal and state laws on possession of firearms and other weapons differ and that a person who violates the federal law may be prosecuted in federal court and the Montana permit will not be a defense. The permittee must be given the original, and the sheriff shall keep a copy and send a copy to the department of justice, which shall keep a central repository record of all permits. Replacement of a lost permit must be treated as a renewal under this subsection.

(4) The sheriff shall conduct a criminal record and background check of an applicant, may require an applicant to submit the applicant's fingerprints, and may charge the applicant $5 for fingerprinting.

(5) Permit, background, and fingerprinting fees may be retained by the sheriff and used to implement 45-8-321 through 45-8-325.

(6) A state or local government law enforcement agency or other agency or any of its officers or employees may not request a permittee to voluntarily submit information in addition to that required on an application and permit."

Section 5. Section 45-8-337, MCA, is amended to read:

"45-8-337. Possession of unregistered silencer or of bomb or similar device prima facie evidence of unlawful purpose. Possession of a silencer that is not registered under federal law or of a bomb or similar device charged or filled with one or more explosives is prima facie evidence of a purpose to use the same to commit an offense."

Section 6. Section 45-8-361, MCA, is amended to read:

"45-8-361. Possession or allowing possession of weapon in school building -- exceptions -- penalties -- seizure and forfeiture or return authorized -- definitions. (1) A person commits the offense of possession of a weapon in a school building if the person purposely and knowingly possesses, carries, or stores a weapon in a school building.

(2) A parent or guardian of a minor commits the offense of allowing possession of a weapon in a school building if the parent or guardian purposely and knowingly permits the minor to possess, carry, or store a weapon in a school building.

(3) (a) Subsection (1) does not apply to law enforcement personnel.

(b) The trustees of a district may grant persons and entities advance permission to possess, carry, or store a weapon in a school building.

(4) (a) A person convicted under this section shall be fined an amount not to exceed $500, imprisoned in the county jail for a term not to exceed 6 months, or both. The court shall consider alternatives to incarceration that are available in the community.

(b) (i) A weapon in violation of this section may be seized and, upon conviction of the person possessing or permitting possession of the weapon, may be forfeited to the state or returned to the lawful owner.

(ii) If a weapon seized under the provisions of this section is subsequently determined to have been stolen or otherwise taken from the owner's possession without permission, the weapon must be returned to the lawful owner.

(5) As used in this section:

(a) "school building" means all buildings owned or leased by a local school district that are used for instruction or for student activities. The term does not include a home school provided for in 20-5-109.

(b) "weapon" means any type of firearm, a knife with a blade 4 or more inches in length, a sword, a straight razor, a throwing star, nun-chucks, or brass or other metal knuckles. The term also includes any other article or instrument possessed with the purpose to commit a criminal offense."

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