Montana AG overturns Missoula’s gun background check ordinance

By Martin Kidston/Missoula Current

Montana Attorney General Tim Fox on Thursday overturned a Missoula city ordinance requiring background checks for all gun sales and transfers within the city limits, dealing a blow to local advocates who believe the measure would save lives.

Attorney General Tim Fox

In a ruling issued in response to a request from state Rep. Austin Knudsen, R-Culbertson, Fox – also a Republican – said local governments were prohibited under state law from enforcing background checks.

“A city, town, or other local government entity with self-governing powers is prohibited by Montana state law from enforcing a local regulation or ordinance requiring background checks on firearm sales or transfers within its borders,” Fox wrote in his ruling.

Thursday’s decision wasn’t the first time Fox has issued an opinion on the subject. In October 2015, while the local measure was still being debated by Missoula’s City Council, Fox issued a one-sentence statement describing the effort as a “gun control ordinance,” adding that it “likely violates our constitutional right to keep and bear arms.”

That statement ran contrary to an opinion issued by City Attorney Jim Nugent, who determined that Montana law grants local governments the power to adopt background checks in order to keep “convicted felons, adjudicated mental incompetents and illegal aliens” from acquiring a gun.

Fox disagreed.

“One cannot try to regulate the ability to acquire firearms (sale or transfer) without exercising power that applies to or affects the right to keep and bear arms,” Fox wrote. “Therefore, the general prohibition in Montana Code Annotated clearly places a broad limitation on the power of self-governing cities to enact any ordinance that regulates the sale and transfer of firearms.”

Thursday’s opinion from Fox didn’t come as a surprise to the measure’s primary sponsor, Ward 1 City Councilman Bryan von Lossberg. He called the ruling disappointing on a number of levels.

As a gun owner who has used background checks before, von Lossberg said the measure would save lives. It wasn’t immediately known if Fox’s ruling would be challenged.

“The attorney general made it clear where he sat on this long before making a ruling,” von Lossberg said. “Background checks save lives, and they’re effective in the areas of suicide prevention and intimate partner and family member homicides. These are not theoretical, abstract issues for this community or for this state. They affect us all.”

Austin Knudsen, R-Culbertson

After a long and contentious debate that spanned more than a year, the City Council voted 8-4 in September 2016 to approve the local ordinance. Supporters of the measure suggested Thursday that politics – not an objective legal ruling – had determined the outcome of Fox’s opinion.

They also accused Knudsen of overreach, saying the eastern Montana Republican – one who often advocates for states’ rights – was acting hypocritically by meddling in a municipal ordinance adopted by a city 500 miles away.

For others, the ruling was a setback, but not insurmountable. The Missoula chapter of Moms Demand Action for Gun Sense in America planned to meet Thursday afternoon to discuss its next step.

“If this is the way the attorney general wants to go and overturn local efforts to make communities safe, that’s a really interesting position for the lead law enforcement official in Montana to take,” said Heidi Kendall, a Missoula volunteer with Moms Demand Action. “I think it’s a shame.”

Nugent said the city or Moms Demand Action could seek a declaratory judgment in District Court or the Montana Supreme Court. Only a ruling at that level could trump an opinion issued by the attorney general.

Nugent suggested state law offers conflicting statutes, and he questioned why Fox’s opinion sidestepped the plain meaning of a city’s right to prevent and suppress the possession of firearms among convicted felons and other groups.

He also believes Fox’s opinion interjects issues that were never part of the city ordinance, yet it used those issues to rationalize the outcome of the opinion. They include the opinion’s suggestion that the city intended to require firearms registration based upon its interpretation of state law.

“Their comments about registration were absolutely inappropriate, because the City Council was never interested in registration,” Nugent said. “It was never on the City Council’s mind and it’s not in the subsection the City Council is relying on. The statement is simply not true. We don’t interpret it that way and we’ve never interpreted it that way.”

While a number of Missoula gun advocates spoke in support of the local ordinance, a number of others opposed it, including Gary Marbut, president of the Montanan Shooting Sports Association.

“As expected, this AG opinion declares the Missoula ordinance to be in conflict with controlling state law, and to be unenforceable,” Marbut said. “Addressing the Missoula ordinance this way, and putting the wheels in motion for this AG opinion, was something we initiated over a year ago. We’re glad this planting finally bore the expected fruit.”

Contact reporter Martin Kidston at info@missoulacurrent.com