Dissecting the Lunacy that is HB228 – House Floor Vote Monday

by jhwygirl

Of all the crazy things to make it out of committee and onto the floor – and that’s not to diminish the lament of things that should of made it out of committee and onto the floor – Rep. Krayton Kern’s crazy HB228 has survived a House Judiciary vote (10 to 8!) and hits the floor Monday at 1 p.m.

Do make sure to check out amendment #1 and amendment #2 to this insanity.

Now, HB228 is called the Citizens Self-Defense and Firearms Rights bill. What it proposes to do is to reaffirm “the right of Montanans to defend their lives and liberties, as provided in Article II, section 3, of the Montana constitution, and their right to keep or bear arms in defense of their homes, persons, and property, as provided in Article II, section 12, of the Montana constitution, is fundamental and may not be called into question.”

How it proposes to do that is what is scary.

There is no duty on an individual to flee or summon law enforcement assistance (Section 2).

Now – think about that. That clause, in and of itself, is giving a person the right to take and hold the law – regardless of their knowledge of it – in their own hands. Certainly there are situations where, in an act of self-defense, there is no reasonable way to summon law enforcement assistance..but such a carte blanche grant of authority is regression to the days of citizens posses and hang-’em-high justice.

Who falls for this stuff?

Section 3 states that the “defensive display of firearms is not an offense.” It goes on to define, under Section 3, clause 2, what exactly is a “defensive display of firearms” – and note the inclusion of the words “but is not limited to” in that definition.

This first version is scary enough….it places the burden of proof that such “defensive display” was needed in the judgment of the law enforcement called to the scene after an incident (keeping in mind there was no obligation to call them there if there had been an opportunity to do so), and, in a scenario where one lays dead, it becomes a he said versus he-who-is-dead said scene. Unfrickin’ real.

Go to reading those definitions (“but not limited to”) of defensive display:

2(c) holding a firearm in a position so that the firearm does not point directly at another person.

Let’s think about that one for a moment: An elevated situation, and I’m now allowed – or whomever is feeling threatened (“you look mad!”) is allowed – to get out a gun and wave it around. Just don’t point it directly at me, and you’re OK.


Or should I simply not be scared because people are allowed to wave their guns all around, so long as – lawfully as defined under this nutcase law – they’re not waving it in my face.

Simply because they feel threatened.

Are we exempting mentally unstable people from this law? Because I’m not seeing that.

Or angry people?

Or angry husbands? Or angry wives? Or scared teenagers?

Or drunks?

Nope – anyone who feels threatened can go waving a gun around, just not in anyone’s face

And just how threatened do I have to feel?

“They were in my personal space” threatened?

“They gave me a look-to-kill” threatened?

“They yelled at me and made me scared” threatened?

Yi, yi, yi.


When an investigation is conducted by a peace officer of an incident that appears to have been or is alleged to have been in self-defense, the investigation must be conducted so as to disclose all evidence, including testimony, that might support the alleged offense and the apparent or alleged self-defense.

So, again – here we go with an officer called to the scene – after the fact – which is often the case, but under this law, may well be always the case – and he has to sort out what has occurred under a law which granted, carte blanche, an ability to go waiving a gun around under an “apparent or alleged” (their words, not mine) claim of self-defense.

Of all the absolutely insane and inane laws to come forward – as I look at it – in a bipartisan fashion, this one has got to be the most ridiculous.

Democrats, I’m ashamed to say, are falling in support of this bill as being beneficial to domestic violence situations.

Wow. Really?

Why has the Montana County Attorney’s Association spoke in opposition to this bill?

Gallatin County Sheriff Jim Cashell came out strongly against the bill at the hearing, saying it could escalate gun violence and make it easier for criminals to cite self defense to avoid prosecution.

Dennis Paxinos, Yellowstone County attorney, said the bill fixes a problem that doesn’t exist:

“There is no case, there is no reason, for such a huge change in our criminal code,” he said.

Paxinos described a scenario in which two gangs approached each other in a public park. Under Kern’s bill, he said, it would be legal for both gangs to display their weapons to each other, then open fire.

“It eviscerates the tools we use now to combat these idiots,” he said.

In fact, an existing law that allows for justifiable use of force (MCA 45-3-102) and use the affirmative defense of self defense.

Why is the Montana Coalition Against Domestic and Sexual Violence spoken in opposition to this bill?

HB 228 is NOT good for victims of domestic or sexual violence in Montana. Proponents of this bill have alluded to the fact that the self defense provisions are somehow beneficial for victims of domestic violence. NOT TRUE! HB 228 proposes an overhaul of our current criminal justice system by asserting that self defense can be used in any criminal action and puts the burden of proof to prove otherwise on the State.

Who supports this bill? Gary Marbut one-man member of the Montana Shooting Sports Association.

That’s enough said there now, isn’t it?

Help stop this lunacy NOW. The House Floor vote is 1 p.m. on Monday. Contact your legislators – all of ’em, Democratic and Republicans – and tell them that this bill endangers your safety and the ability of law enforcement officers to enforce the peace. It places greater burden on county prosecutors and has the potential to escalate gun violence. It makes it easier for criminals to utilize a self-defense claim to avoid prosecution for gun related crimes.

You can click on this map to find the legislators in your district. This link will take you to a list of legislators, along with their contact information.

You can also fill out an online form to send comments to legislators – and you can also call the Session Information Desk at 406-444-4800 to leave a message for as many as five legislators per call. Your message will be delivered directly to the legislators. The TTY (Telephone Device for the Deaf) number is 406-444-4462.

Be sure to mention HB228 in all correspondence or phone calls.

These legislators have indicated that they are ‘on the fence’ about this vote. Please contact these legislators to let them know your thoughts:
Bob Bergren of Havre – bergren@bobbergren.com
Bob Ebbinger of Livingston – buffalojump@imt.net
Dennis Getz of Glendive – ddgetz@peoplepc.com
Dan Vila of Anaconda – danvillaformontana@hotmail.com
Cynthia Hiner of Deerlodge – matthiner@hotmail.com
Cheryl Steenson of Kalispell – casteenson@gmail.com
Bill Wilson of Great Falls – bw208@bresnan.net
Bill Nooney of Missoula – bnooney@inv-ent.com
Don Roberts of Billings (you need to use the online form to contact him)
Jesse O’hara of Great Falls (you need to use the online form to contact him)
Gary MacLaren of Victor – garymaclaren@yahoo.com

Don’t miss Matt Singer’s take on this at Left in the West. He does it in a lot less words than I.

  1. Gun Lover

    I love guns. Really, I love guns. Gun loving democrat.

    But I totally hate this bill. It is judicially unnecessary, and it presumes the legislature should step-in for the courts in developing common-law jurisprudence. People talk about legislating from the bench, and this is the opposite: a completely un-American and inappropriate use of the legislative system to subvert the role of the courts.

    It also sets the stage for off-the-wall self defense claims in situations that are frankly scary, even for folks like me who think everyone in Montana ought to carry a gun.

    Let the courts do their job.

  2. can the water get any muddier? why do we need over 2,000 gun laws and hundreds of thousands of legal opinions to interpret a statement that has less than 30 words.

    the second amendment wasn’t written in sanskrit or anything.

    this can be summed up with one simple question.

    is gun ownership a right or a privilege?

  3. montanalibertyslactivist

    sorry, i should have added the question:

    “do you have a right to defend yourself?”

    keep in mind how many times you can be stabbed or violated in the 15 minutes that it generally takes law enforcement to respond before you answer the question.

  4. You do have the right to defend yourself: MCA 45-3-102.

    45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony.

    History: En. by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, .

  5. montanalibertyslactivist

    i am not asking what the law says, i am asking you.

    do you feel that you have the inherent right to use the level of force you think appropriate in a given situation?

  6. Yes..I mean, not only does the law give it to me, but I’d have to say common sense and the human instinct of survival would kick in. And I may or may not have a gun. Either way, I’m going to defend myself.

    Beyond that – I damned well would be calling the cops and anyone else who’d come to my assistance if I had the ability to do so, given the circumstances.

    Vigilante justice – I think we’ve learned from history – doesn’t do anyone a damned bit of good.

    So I’ll ask the same of you: Do you feel you have the right to defend yourself to whatever appropriate level is needed given the circumstances?

    Because what you ask is at the heart of this bill – it justifies deadly force upon threat. It doesn’t define that threat, nor the level of it – just plain ole’ threat.

    This bill is overkill, promotion of lawlessness, and plain dangerous to cops. We’ve got laws about concealed weapons. How does this law fit in there with this?

    Unbelievable. This is one of those bills that creates a huge huge mess. It’s unnecessary and creating a problem – as that sheriff said (or was it the prosecutor?) – where none exists.

  7. I mean, montanalibertyslactivist – if you are being stabbed, by all means, if you’ve got a gun, use it. Or your knife or your car or a brick. Whatever you got. Use it.

    You’ve got the right to do so right now. There’s not a state in the land that would question your use of deadly force under those circumstances.

  8. montanalibertyslactivist

    i know i have a right to defend myself, my liberty, and my property. my central argument against this bill or any other like it, is as follows:

    my right to defend myself doesn’t come from the government, or the passage of laws.

    if a government passes a law that is against the basic principles of life, liberty, and property, then i feel in no way obligated to follow it.

    you can pass all the laws you want. you can’t legislate behavior, and in the end it harms only those that would follow a repugnant law.

  9. montanalibertyslactivist

    when i say “you can pass all the laws you want”, please realize i don’t mean “you” personally.

  10. I get ya’. We’re on the same page here, montanalibertslacktivist – I’m citing common sense and basic human instinct, too, as my basis for defending myself.

    You also started off with one argument that I had in my head when I first heard of this – ‘don’t we have the 2nd amendment?’

    Passing laws on top of laws is plain stupid.

  11. My objections to this law remain the same as they have been when a) it was attempted in 2007, and b) I have discussed this before.

    1) It codifies an unproven opinion as the law of the state:

    ” (6) the use of firearms for self-defense discourages violent crime and prevents victimization; and:

    2) It puts the legal onus on the state to be able to prove a negative, which is a logical impossibility. The state must prove beyond a reasonable doubt that you weren’t shooting your annoying neighbor out of fear and a sense of self defense. For some, that’s a ‘get away with murder free’ card.

    3) The financial onus of an idiot blasting the paper-boy out of misplaced terror, and this law showing ‘no harm no foul’ for such, passes to me. No thank you.

  12. Janus

    “HB 228 proposes an overhaul of our current criminal justice system by asserting that self defense can be used in any criminal action and puts the burden of proof to prove otherwise on the State.”

    The burden of proof being put on the state, instead of on the defendant, is in no way a bad thing.

    Isn’t that the entire basis of the American criminal justice system?

  13. Joe Swanson

    Your a gas chambered mentality idiot.

  14. And you apparently never made it past 5th grade:

    Your’e, for one thing – I can’t figure out what you’re trying to say for the rest.

  15. Mayor of Mayhem

    Juries don’t tolerate nonsense, like convicting law abiding citizens of killing scumbags while defending their families. Grand pap said it best ” It’s better to be judged by 12 than carried by 6″. Jhwygirl, the police cannot protect you. Montanaliberty you hit the nail on the head. If a law is a bad law is it right to obey it? I have always had a problem finding out what was legal when traveling state to state.

  16. Mayor of Mayhem

    Joe Swanson, Who is an idiot and why?

  17. MTPatriot

    jhwygirl: Excuse my ignorance here, but I take from your name that you are from Wyoming. Why do you care what we do here in MT? OR do you now live here? If so why is it a problem for law abiding citizens of Montana to have the right to carry a concealed weapon?

    Do you not agree that criminals are going to carry concealed regardless of the law?

    Soapbox time:
    It is absurd to think that the passing of this bill would someone increase the amount of criminals that would carry concealed. There is a reason that the MSPA and MCAA don’t want this bill to pass and that is citizens will be armed more often and in more places. What is wrong with law abiding citizens being armed? We already have the right to open carry in Montana, why should concealed carry be any different?

    In fact the only difference that this bill would truly make is that citizens would be able to conceal carry without actually having to obtain a CWP. In essence it gives the rights to “you and me” to chose when and where (within the guidelines of the law) that we can carry concealed. The present CWP requirement essentially lets law enforcement know who will or most likely will be carrying concealed. What business is it to law enforcement to know which law abiding citizens are carrying a weapon? Is it not their job to strictly enforce the law and not stick their noses into my business?

  18. Janet Rogers

    I am a single level headed female who carries a concealed pistol for self defense. I have a MT permit to carry in cities, and none needed in rural areas. So in the middle of nowhere if I break down how do you propose we fund the manpower to place a policeman in earshot of me no matter where I am? You think I should be prosecuted if I have to drive off a 200 Lb male rapist for drawing my handgun to warn him? I agree there are some people who should not carry or even own guns, but telling law abiding citizens they have to fear prosecution if they defend themselves is just dead wrong! I am sure you are sitting in a nice safe office in San Francisco writing this blog! I sincerely hope you don’t have to fight off a criminal in the middle of nowhere some day. Believe me a lot can happen when the police are 1/2 hour away! Oh yes, I forgot. As a helpless female I should “empower” myself by learning to use my keys or hairspray as a weapon!

  19. Tod Glenn

    Regarding the ‘duty to retreat’, this law only brings Montana into alignment with the supreme court ruling Brown vs. United States (1921) in which Chief Justice Oliver Wendell Holmes, writing for the majority, ruled that there is no duty to retreat from a place where anyone has a lawful right to be.

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