Montana Edges Closer to Prohibiting Local ‘Red Flag’ Laws

The state of Montana doesn’t have an Extreme Risk Protection Order in place at any level of government, and a majority of state representatives want to keep it that way. 

Last week the House gave its preliminary approval to a measure that would officially prohibit cities, counties, and other political subdivisions from adopting a “red flag” ordinance, thought the vote was closer than you’d expect in a state as Second Amendment-friendly as Montana. 

House Bill 809 has more than four dozen Republican co-sponsors and cleared second house reading on Thursday on a 54-45 vote.

It bans local governments from having what are called extreme risk protection orders (ERPO), which are temporary measures a judge can take to make someone surrender their firearms while a judge weighs if they are a high risk to others or themselves.

Supporters say it’s a pre-emptive move to protect people’s second amendment rights if they haven’t been convicted of a crime, detractors consider it as a solution for a non-existent problem that protects criminals instead of the public.

While I certainly don’t have any objections to HB 809, I’m also not sure it’s really needed. Montana already has a firearms preemption statute in place; one that explicitly states a “county, city, town, consolidated local government, or other local government unit may not prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun.”

If political subdivisions can’t regulate the purchase or possession of firearms, then it seems to me they’re already prohibited from enacting a local Extreme Risk Protection Order ordinance that would result in the confiscation of lawfully-possessed guns. But supporters of the measure contend that the next time a Democrat is in the White House they could try to use the power of the purse to entice these localities into adopting an ERPO measure of their own. 

“This is a commonsense measure to make sure individuals are not derived of their ability to keep and bear arms without due process. We saw the Biden regime during their tyrannical and overreaching authoritarian administration push red flag laws through federal grants,” said State Rep. Braxton Mitchell (R-Columbia Falls), HB 809 lead sponsor. “Looking ahead into the future, should we be cursed with another progressive administration, Montana cities and counties will be prohibited from accepting federal money to implement ERPO style programs. Article 2, section 12 of the Montana state Constitution protects the right to keep and bear arms, as does the second amendment of the United States.”

Opponents of HB 809, on the other hand, say the bill is nothing more than a stunt to show support for the Second Amendment. 

“What we have here is a piece of legislation that is driven by some policy crafted by the former Biden administration. Whether it actually had any effect on the state of Montana is unknown because the sponsor can’t identify if any of these orders were ever issued,” said State Rep. John Fitzpatrick (R-Anaconda), one of three Republicans to vote against the bill. “This is not a second amendment right bill, this is another piece of legislation just like we had yesterday, where the second amendment is being waved as a flag for the specific purpose of protecting people who engage in criminal activity. This thing deserves a big, solid, red no.”

Now, Fitzpatrick may have a point when he says that Montana hasn’t had a problem with cities like Billings or Missoula trying to adopt a “red flag” ordinance, but his claim that HB 809 is about protecting people who engage in criminal activity is completely off-base. The whole point of an Extreme Risk Protection Order is to be able to seize firearms from individuals even when there’s no evidence that would lead to a criminal charge. So long as the petitioner can convince a judge that the subject of the petition likely poses a threat to themselves or others, their guns can be seized “temporarily”, with the option of extending that order time and time again.

If HB 809 is an exercise in Second Amendment virtue signaling, so be it. As far as I’m concerned, we could use more lawmakers signaling that the right to keep and bear arms is, in fact, a virtue in our society. HB 809 certainly doesn’t do any harm, so while it may deal in hypotheticals, it’s still a proposal worth enshrining into law.