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.

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 use of a dangerous weapon under Montana Code § 46-18-221 or a similar law in another state;
• a felony for which the person is currently required to register for the sexual or violent offender registry.¹

In addition, if someone is convicted of partner or family member assault, the judge could prohibit the defendant from having or using the specific firearm used in the assault.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)
² Mont. Code § 45-5-206(7)

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)

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?

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

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.

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.