MSSA comment in re MSU's proposed University Firearms Policy.

MSU's revised policy of November is HERE.

MSSA's comment on the November revised policy is below and as an MSWord file HERE.

MSU's proposed policy of June is HERE.

MSSA's comment from July as an MSWord file HERE.

Montana Shooting Sports Association
P.O. Box 4924
Missoula, Montana 59806 -

November 20, 2007

Leslie C. Taylor - "Taylor, Leslie" <>

Legal Counsel
211 Montana Hall
Montana State University
Bozeman, Montana

Dear Ms. Taylor;

Greetings from Missoula.

This is the comment, for the record, of the Montana Shooting Sports Association (MSSA) upon the proposed new firearms policy being considered by MSU.  For introduction, MSSA is the primary organization in Montana asserting the rights and prerogatives of gun owners in Montana, is affiliated with the National Rifle association and associated with Gun Owners of America and the Citizens Committee for the Right to Keep and Bear Arms.

We wish to begin this comment by saying that we grant that the intent of MSU with this proposed policy is to make the MSU campus safer for faculty, staff and students and we commend that intent.  We do agree that it is time to revisit MSU firearms policy in light of what happened at Virginia Tech.  We also believe, for the reasons stated below, that the proposed policy will have the opposite effect, that the policy is poorly-considered, not well crafted, and that the policy as proposed will actually make MSU students and employees more vulnerable to malicious attack on campus.

We note that the proposed policy, as written, effectively asserts a universal ban on handguns on campus (except, perhaps, for campus security).  Although handguns are the tool of choice for self defense from sudden and life-threatening attack, the proposed MSU policy would theoretically deny everyone on campus this important tool of self defense.

We ask that MSU focus academic and scientific rigor on examination of this question, an issue that should be resolved through careful and rational thinking, avoiding false assumptions, false deductions and subsequent false conclusions.  We ask you to set aside emotion and emotional arguments and instead look at the facts available, an approach that would be appropriate for an institution of higher education..

Finally, we ask that MSU include as response to this round of comment all of the comments previously submitted in June and July to the similar policy revision proposed then.

A.  Comment on proposed policy

1.  Constitutional problems -- self defense.  For good reason, the Montana Constitution reserves from government interference the right of every person to bear arms for his or her own defense and for the defense of others.  MSU is a subdivision of Montana state government and subject to the rights the people of Montana have reserved to themselves from government interference in the Declaration of Rights at Article II of the Montana Constitution, specifically at Article II, Section 12.  Just as MSU could not legitimately prevent faculty, staff or students from voting in elections, receiving a jury trial if accused of a crime, or exercising their freedom of speech, MSU may not prohibit them from exercising their right to defend themselves, nor prohibit the tools for self defense, as reserved in Article II, Section 12.  The Montana university system is not exempt from restrictions imposed on governmental entities and actors by the rights Montana citizens have reserved to themselves in the Montana Constitution, notwithstanding that MSU may genuinely believe it has good reason to deny constitutional rights.

2.  Flawed logic -- gun bans do not inhibit criminals.  It has been demonstrated beyond rebuttal that jurisdictions in which peoples' ability to defend themselves is unfettered the denizens of such jurisdictions enjoy a reduced level of victimization.  See More Guns; Less Crime by Professor John Lott.  Conversely, those places in the U.S. with the most severe restrictions on the ability of people to protect themselves impose on people the highest levels of victimization.  Someone intent on a Virginia Tech-type incident at MSU -- a person determined to commit murder or multiple murders -- will not abandon his plans simply to avoid violating a policy MSU has adopted.  To think otherwise is delusional.  The only thing a gun banning policy will accomplish is to insure that this madman has a pool of defenseless victims to kill -- that he will encounter no effective resistance as he carves a swath of death through the MSU campus.

Elaboration upon this point is in order.  This policy revision appears to have been sparked by the horrendous mass murder incident earlier this year at Virginia Tech.  People who decide to commit mass murder invariably expect to die as a part of their killing spree, either at their own hand or at the hands of others.  A mass murderer does not expect to survive.  A mass murderer chooses to violate the strongest prohibitions of our society -- the fundamental religious and moral prohibition against taking innocent lives, the prohibitions against murder inherent in our constitutions and laws, the prohibitions against using weapons offensively, the forfeit of their own life, and more.

This proposed policy is dependent on the essential assumption that a person determined to murder others and to violate all of these strong prohibitions will get to the edge of campus, realize what he intends is against MSU policy, and abandon his plans for carnage so as not to offend campus policy.  Unlike the irrational White Queen, we are unwilling to believe six impossible things before breakfast.  We reject this essential assumption, without which the whole policy makes little sense.

3.  Liability and responsibility for protection.  Let us assume that MSU has some level of responsibility for the safety and well being of people on campus.  MSU would not, for example, allow an attractive or dangerous nuisance to exist on campus, such as a building with no fire exits.  If MSU were to allow a hazard such as a lecture hall with no fire exits, and a fire were to occur where lives were lost because of the absence of fire exits, MSU would be held to have been negligent and liable because of this negligence.  The same principle applies to preventing people from possessing the means to defend themselves from unlawful attack, especially when such possession is protected from MSU interference by the Montana Constitution.  We believe that MSU will incur significant liability if it denies people the means to protect themselves and fails to protect them, individually and actually, to the same extent that they could protect themselves were they not disarmed.

4.  Persons not students, faculty or staff not subject to MSU policy.  MSU has little or no authority over persons who are not faculty, staff or students.  MSU may fire employees and expel students who violate MSU policy -- not much of a threat to a madman who is determined to kill others and die.  MSU has no real authority over persons not employed or students at MSU.

It is very unlikely that a person determined to kill others can be stopped by anyone not armed.  It takes an armed person to stop an armed killer.  That's exactly why we have armed police.  However, the police will not arrive until theoretical madman has already killed some, perhaps many.  Meanwhile, the proposed MSU policy will only guarantee that a killer will have defenseless victims.

I am accepted in state and federal courts as an expert concerning self defense, firearm safety, use of force, and other related topics.  If MSU were to adopt the proposed firearms policy, as is, and if there were a Virginia Tech-type incident on the MSU campus (notwithstanding the policy), and if I were engaged by the attorney for the next-of-kin of a non-survivor of the incident asserting negligence by MSU, it would be my testimony and expert opinion that MSU contributed to the demise of the victim by having prevented the victim from effectively defending himself or herself.

While this comment is critical of the proposed policy, this comment would be incomplete, I believe, if no improvements or alternatives were suggested.  So, after the following discussion, we will offer MSU some alternatives that will actually help insure the safety of all persons on campus.

B.  Discussion

1.  Concealed weapon permittees.  A majority of U.S. states, including Montana, have adopted mandatory-issue concealed weapon permit laws (called "shall-issue" laws).  There is now a vast amount of statistical data available about the various effects of this public policy direction taken by most states.  Two important points become clear from examining available data.

The first is that states which adopt shall-issue CWP laws confer upon their citizens a noticeable, in some cases dramatic, reduction in interpersonal, violent crime -- shall-issue CWP laws confer greater safety for all.  If predators know that some of their potential victims are armed, but they don't know which ones, there is less predation.  Professor Lott's research determines that the rates of crimes such as murder, assault, rape and robbery fall on the order of 20% in states that adopt shall-issue CWP laws.  Most important, the crime of multiple or mass murder (like at Virginia Tech) decreases on the order of 80% in states which adopt shall-issue CWP laws (except within "gun-free" zones, like MSU proposes).

The second point established by the data is that people who have taken firearm safety training, passed a criminal records background check, offered references, photo and fingerprints, and been screened by local law enforcement, all in order to obtain a concealed weapon permit, are statistically the most safe and law abiding group identifiable.  That is, CWP-holders have a lower incidence of violence, of law-breaking, and of misadventures with firearms than nearly all other identifiable groups, including police officers, military personnel and teachers.

2.  "Gun free" zones not safe.  As alluded to above, so-called "gun free" zones do not prevent criminals from having guns in those places.  It is the chosen vocation of criminals to break or ignore laws -- that is exactly why they are criminals and are called criminals.  "Gun free" zone laws and policies only insure that law-abiding people cannot defend themselves or each other in those zones.  Such zones might as well be called "guaranteed defenseless victim" zones, as these zones only increase the safety of predators and madmen, but not of other law abiding people there.  "Gun free" zones artificially create the most fertile possible ground for criminal activity.  Further, "gun free" zones neutralize the societal benefit and criminal deterrence generated by shall-issue CWP laws.

3.  Police - no duty to protect.  The courts have held that police have no duty to protect any individual, but only to provide a general level of protection to the community.  If police are called, they have no duty to respond or to act.  If there were a Virginia Tech-type incident on the MSU campus, police might or might not respond, or might respond to the edge of campus and hold there, waiting for a madman to complete his mayhem, as Bozeman police did recently when responding to an incident at a local convenience store.  This makes it practically incumbent upon every individual to be able to provide for his or her own protection, essentially a responsibility of every citizen.  Police protection is a dangerous myth.  The actual work of police is to bring violent perpetrators to justice, when they can.  Police are the cleanup crew, no matter how much individual police officers would like to be able to interdict individual crimes.

4.  Trustworthy citizens.  The Montana Constitution mandates and the Legislature has concurred that the majority of citizens are decent, law abiding people, to be trusted with possession of firearms for self-defense.  One would hope and suppose that MSU selects exemplary people for faculty, staff and students, people who may even be a cut above average Montanans concerning responsible behavior.  Montana law allows persons 18 years or older, and having met other statutory requirements, to obtain concealed weapon permits.  In Montana's near two-decade experience with this public policy, there is no -- zero -- data to suggest that young and eligible persons with CWPs have misused their CWPs.  Further, federal law allows persons between 18 and 20 to be legally in possession of handguns with parental consent.  While gang-related and criminally inclined youth have been known to abuse these rights, the remaining 99% of the population has not.  If Montana people generally are responsible and lawful, and MSU denizens are at or above average, and if all Montana people (exempting felons and mental incompetents) are trusted to possess firearms, then it just makes no sense to distrust and disrespect MSU personnel to the extent indicated by the proposed policy.

5.  Montana culture.  Montana has a long and honorable culture of safe, appropriate and effective use of firearms, beginning with the Lewis and Clark expedition and continuing today.  Firearm possession is very much a part of Montana culture.  MSU seeks to deny this culture for faculty, staff and students.  MSU might as well insist that Jews attend only Christian services, that Asians must eat nothing but steak and potatoes, or that no student may wear a cowboy hat or cowboy boots on campus.  Such insensitivity to culture is surprising coming from MSU where cultural tolerance should be embraced.

6.  Mass murder.  While it is laudable for MSU to seek to prevent a Virginia Tech-type incident on campus, scapegoating firearms misses the mark.  In the largest mass murder in U.S. history airplanes were the weapon of choice when terrorists flew them into the World Trade Center in New York.  The next largest mass murder in history also happened in New York City when a vengeful person threw an ignited quart bottle of gasoline into a crowded nightclub.  Firearms are not the problem.  People who would kill other people are the problem.  When these madmen are armed, it takes another armed person to stop them.

7.  Seat belt analogy.  People wear seat belts because it is prudent and it enhances safety for the seat belt user.  As a motive for seat belt users, it is never said that they are exceptionally paranoid and unusually fearful of getting in an auto accident.  It is also never said that seat belt users get into their cars in the hope of being able to crash into something.  Wearing seat belts is just prudent.  Actually, very few people actually need seat belts.  Only those very few who become involved in an accident need belts, and then, once the accident begins, it is too late to buckle up.  The motivation for those who carry a firearm for personal protection is the same.  Relatively few actually need a firearm.  These people are not highly fearful - paranoid - of being victimized.  They simply choose not to be victims.  Nor do these people get up in the morning hoping to find something to crash into (or shoot at).  But, like the auto crash victim, when a person becomes victim of predatory crime, it is then too late to buckle up (or go home and get a firearm).

8.  Note about "dangerous chemicals."  The proposed MSU University Firearms Policy declares that:  "Weapons are prohibited on campus, except as follows."  The policy defines "weapons" to include "dangerous chemicals."  The proposed policy then offers exceptions to the general ban, but only for student housing and campus security.  It would probably be wise for the administrative and legal staff to consult the departments of Chemical Engineering and Chemistry and Biochemistry, and various other research entities on campus, before invoking this blanket ban and unexcepted ban on "dangerous chemicals" throughout campus.  It is a near certainty that these departments and entities have plentiful stocks of what must fit the definition of "dangerous chemicals."  Under the proposed policy, MSU will need to engage in a comprehensive process of inventorying stocked chemicals, make determinations about which ones might be "dangerous" if misused, and un-stock and properly dispose of "dangerous" chemicals.  Otherwise, MSU will be forced to engage in selective enforcement of its policy.  Selective enforcement is a slippery slope.

9.  Note about ROTC.  According to pictures posted on the MSU Website, the ROTC department uses paint ball guns, banned under the proposed policy, for training.  The ROTC probably also possesses real firearms.  Since the proposed policy, as is, has no exemption for ROTC, again one must imagine significant changes at MSU, or selective enforcement of the proposed policy.  There may also be an issue about the effect of MSU contracts with the Department of Defense for ROTC.

10.  Utah.  The State of Utah overtly allows citizens with CWPs to exercise their CWPs on the campuses of the state university system, including students and employees.  It would be no more disingenuous than MSU's proposed ban to state that Utah universities and colleges have not had a single incident of mass killing since legislative adoption of this policy.  Certainly, there has been zero incidences of CWP-holders having misadventures with or involved in misuse of firearms on Utah campuses under this sensible and tolerant Utah policy.

11.  Thought experiment.  Allow me to conduct a thought experiment for the reviewer.  Suppose you, your spouse and/or children are being stalked by someone known to have violent intentions -- someone likely to kidnap, rape or kill.  Would it make you more or less comfortable about the safety of yourself or your family members to post a sign in your front yard asserting "No guns on these premises"?  This is a very close analogy to what MSU proposes with its effective ban on handguns and severe restriction on long guns -- to leave the MSU family exposed to and unprotected from the violent stalker, and to announce that vulnerability.

12.  Drafting of the proposed policy.  Having been involved in drafting legislation for over two decades, I am sensitive to the difficulties inherent in drafting clear yet effective policy.  While admitting that this is a difficult topic about which to draft clear policy (because the underlying concept is flawed), the currently proposed draft has some genuine drafting problems.

Comment based on policy iteration posted at:

a.  Use of the word "weapon".  "Weapon is defined by as:  "1. any instrument or device for use in attack or defense in combat, fighting, or war, as a sword, rifle, or cannon.  2.  anything used against an opponent, adversary, or victim: the deadly weapon of satire."  One may suppose other definitions will substantially agree.

The problem with using the word "weapon" as a keystone for the proposed MSU policy is that whether or not something is a weapon depends on how it is used.  For example, the second example used by acknowledges that words can be used as a weapon, yet all use of words is not necessarily use of a weapon.  Also, although firearms may be used as a weapon, much, perhaps most, use of firearms is not as a weapon.  Firearms are used widely for shooting competition, such as trap or skeet, where no weaponization is involved or intended.  Some people collect firearms for historical value, such as most included in a recent and excellent Museum of the Rockies exhibition.  Some people purchase firearms as a store of value and hedge against inflation.

To repeat the logical content:  Not all things capable of being used as weapons are always weapons, and not all things described as weapons in the policy are necessarily weapons.  So, a word or phrase should be chosen as the keystone for this policy that doesn't seem as overtly pejorative as "weapons".

b.  Use of the word "explosives".  This is another illusive term.  It is understood that dynamite is not wanted in student rooms, but there is much else that is explosive.  Probably more buildings have been damaged or destroyed in the U.S. from propane or natural gas explosions than from dynamite.  Should propane and natural gas be prohibited also?  Propane is used as the propellant in common products, such as hair spray.  These can explode with incredible violence if heated.  Another common agent that can be very explosive is flour -- common, ordinary baking flour.  Fuel-air bombs using flour are applied effectively in warfare to utterly demolish large buildings.  Flour dust explosions in grain silos can be among the most devastating of explosions.  So, is flour an explosive?  Certainly, under the right conditions.  Is flour in student quarters prohibited by the proposed policy?  Maybe; maybe not.

c.  Pepper spray.  Pepper spray is classed as a weapon "(except for small, personal protection dispensers) (sic)."  What is a "small, personal protection dispenser"?  Is it the size of canister recommended by the Montana Department of fish, Wildlife and Parks for bow hunters to carry in bear country?  If so, how is that size defined?

d.  Family housing.  A plain reading of numbered paragraph 2 seems to allow loaded shotguns and crossbows to be stored in family housing, but not unloaded rifles.

e.  Transport.  In numbered paragraph 3, there is no provision for a student to transport any way other than in a vehicle.  Is a student expected to drive his vehicle into the housing unit or dorm storage facility, or will he or she be disciplined for carrying a firearm from a housing unit or dorm to a vehicle in a parking lot?  Also, the semantics of this paragraph are very confusing, especially the "onto and off of campus" language that seems first to say that a firearm may only be transported "off of campus with the immediate intent of proper storage on campus" (sic), but then contradicts itself and says something different.

Taken together, it appears that whomever drafted this policy was 1) not very familiar with the issues involved, and 2) not very focused on the drafting process.  By pointing out these drafting problems we do not suggest that fixing these problems will turn a flawed policy into a good policy.

C.  Alternatives

MSSA recommended that:

1.  All persons who have a concealed weapons permit valid in Montana be exempted from the proposed University Firearms Policy;

2.  any student, staff or faculty under the age of 18 who wishes to be in possession of a rifle or shotgun on campus must provide MSU with written parental permission consenting to that possession;

3.  any student, staff or faculty who is 18, 19, or 20 years old and who wishes to possess a handgun on campus must provide MSU with written parental permission consenting to that possession (required by federal law);

4.  the MSU policy require that no student may keep a firearm in his or her dorm room unless with the consent of his or her roommate(s);

5.  MSU provide secured storage in each dorm for firearms students do not wish to keep in their rooms, and that an adequate system be devised to both prevent unauthorized access to such storage and to allow students to retrieve stored firearms at any reasonable hour;

6.  discharge of firearms anywhere on campus except at an approved shooting range and except for self defense be strictly prohibited (which won't inhibit a madman but will promote safety, and which is already covered under state law if MSU is within the Bozeman city limits);

7.  a criminal records background check be run on all staff and faculty and that any who are not legally eligible to possess firearms be reevaluated for employment; and

8.  suitable self defense instructors be recruited and engaged to offer classes on campus both about the safe and effective use of firearms, and about how affected persons can without firearms and most quickly neutralize a threat to themselves and others (not relying totally on summoning police and waiting for them to arrive to hopefully do something effective).

I would be happy to converse with either of you by phone or email, or collaborate further about how MSU can craft a reasonable and effective policy to enhance the safety of all persons on campus.  Please call or email me if you care to pursue this.

Sincerely yours,

Gary Marbut

Cc:    Senator Joe Balyeat, Bozeman
    Representative Roger Koopman, Bozeman
    MSSA Board