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Legal Information: Montana

Montana State Gun Laws

State Gun Laws

Basic Info and Definitions

What is the difference between federal and state gun laws? Why do I need to understand both?

In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.” The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself. Throughout this section, we will be referring mostly to state laws. Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well. You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws. Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws. If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor). For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

What is the definition of a felony?

A felony is a crime that is punishable by death or a prison sentence of more than one year.1

1 Mont. Code § 45-2-101(23)

I am a victim of domestic violence and the abuser has a gun. Is that legal?

In Montana, a person cannot have a firearm if s/he:

  • has been convicted of:
  • a felony for which s/he received an additional sentence for a crime committed with a dangerous weapon under Montana Code § 46-18-221;
  • an offense of another state or under federal law, which is similar to a Montana offense that would subject the person to an additional sentence for a crime committed with a dangerous weapon; or
  • assaulting you with a firearm;1
  • has been found to be mentally incompetent by a judge;
  • does not have legal immigration status; or
  • is under the age of 18.2

If any of these situations apply to the abuser, it may be illegal for him/her to have a gun. Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a restraining order against him/her that meets certain requirements. Go to Federal Gun Laws to get more information.

1 Mont. Code §§ 45-8-313(1); 45-5-206(7)
2 Mont. Code § 9.20.030

Guns and Orders of Protection

I have a temporary or final order of protection against the abuser. Can s/he keep a gun or buy a new gun?

In Montana, a judge can prohibit the respondent in a temporary domestic violence order of protection from possessing or using a firearm that was used in an assault against you. However, it would only apply to that specific firearm used, not all firearms. Also, the law allows the judge to include it but does not require the judge to issue that restriction.1

Also, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances. Go to Federal Gun Laws to get more information.

1 Mont. Code §§ 40-15-201(1), (2); 40-15-204(3)

Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?

While it does not need to be written on your order of protection that the abuser cannot buy or have a gun in order for the federal law to be enforced, it may make it easier if it is written. There are a couple steps you can take to try to help make this clear:

  1. If the abuser has a gun, be sure to make a request on your petition for an order of protection that his/her gun(s) be taken away and held while your order of protection is in effect. You can write this request under the “Other” section of what you ask the judge to do. You may also want to write how many guns the abuser has and if s/he has ever threatened you with a gun(s).
  2. Ask the judge to specifically write in your order of protection that the abuser cannot buy or have a gun while the order is in effect. There will most likely be a box that the judge can check off.
  3. Before leaving the courthouse, check to make sure that the gun restriction is written (or checked) on your order. It also may be helpful if the judge explains what will happen to the abuser’s guns, who will take them, and where they will be held once you leave the courthouse, and a time frame in which the guns must be turned over. If the judge agrees to add language that the abuser cannot keep his guns while the order of protection is in effect, you may also want to ask that the judge:
  • require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them;
  • make it clear to both you and the abuser how long the guns will be kept away from the abuser;
  • order that the police notify you when the guns are returned to the abuser.

Guns and Criminal Convictions

If the abuser has been convicted of a crime, can s/he keep or buy a gun?

In Montana, a person cannot have a firearm if s/he has been convicted of:

  • a felony for which s/he received an additional sentence under Montana Code § 46-18-221;
  • an offense of another state or federal law which is similar to a Montana offense that would subject the person to an additional sentence under section 46-18-221; or
  • assaulting you with a firearm.1

If any of these situations apply to the abuser, it may be illegal for him/her to have a gun. Also, federal laws, which apply to all states, may restrict an abuser’s right to have a gun. Go to Federal Gun Laws to get more information.

1 Mont. Code §§ 45-8-313(1); 45-5-206(7)

How can I find out if the abuser has been convicted of a crime?

Criminal records are open to the public, but they are not always easy to access. If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question What will happen if the abuser tries to purchase a gun?

The Abuser Isn't Supposed to Have a Gun...Now What?

If the abuser's gun is taken away, what will happen to it?

Montana requires a peace officer responding to a call about an abuser assaulting a partner or family member to take the weapon used or threatened to be used in the incident.1 The weapon may not be returned to the abuser until:

  • the offender has been acquitted; or

  • a judge orders that the weapon be returned.2

Montana does not require an officer to remove firearms or require the abuser to surrender firearms when a domestic violence order of protection issued against the abuser.3

1 Mont. Code § 46-6-603(1)
2 Mont. Code § 46-6-603(3)
3 Giffords Law Center

Who do I notify if I think the abuser should not have a gun?

If you think the abuser is violating the state firearm laws, you can call your local police or sheriff department or the State Police. If you believe s/he is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have order of protection against the abuser, s/he has been convicted of a felony or domestic violence misdemeanor.

You can find contact information for sheriff departments in your area on our MT Sheriff Departments page.

To contact your local ATF field office, see the ATF website. For reporting illegal firearm activity, you can also call: 1-800-ATF-GUNS (1-800-283-4867).

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our MT Advocates and Shelters page.

Note: Generally, a person does not have to have knowledge of the law in order to be arrested for violating the law. If the abuser has a gun or buys a gun in violation of the law, s/he can be arrested, whether or the abuser knows s/he was in violation of the law.1

1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

What will happen if the abuser tries to purchase a gun?

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

What is the penalty for violating state firearm laws?

If a person is restricted from having a firearm because s/he was convicted of a crime, the punishment for having a firearm is imprisonment in a state prison for two to ten years.1

1 Mont. Code § 45-8-313(2)

More Information and Where to Get Help

I do not have an order of protection against the abuser, and s/he has not been convicted of any crimes. Can s/he have a gun?

In Montana, it is illegal for a person to have a firearm if s/he:

  • has been found to be mentally incompetent by a judge;
  • does not have legal immigration status; or
  • is under the age of 18.1

Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.

For additional information on gun laws in Montana, you can go to the Giffords Law Center website.

I've read through all of this information and I am still confused. What can I do?

Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2.
  • You can contact a local domestic violence organization in your area - see our MT Advocates and Shelters page.
  • You can write to our Email Hotline.