Source: Kurt Wilson, Missoulian
Source: Kurt Wilson, Missoulian

 

Last September, Missoula, Montana passed an ordinance requiring background checks for private gun sales. The legislation was initially sponsored by Missoula City Councilman Bryan von Lossberg, who believes the legislation is not only legal, but necessary.

“The point was to save lives,” von Lossberg told Montana Public Radio. “Background checks aren’t required in all transactions, but if we take the steps to require those as part of a responsible transaction we have an opportunity to save lives.”

According to the council, the city’s attorney was consulted and said the ordinance was within the city’s jurisdiction.

On Thursday, Montana’s Attorney General, Tim Fox, said Missoula was outside of their authority. According to Fox’s ruling, local governments are limited to regulating where gun owners can concealed carry, not how to purchase firearms.

“Plainly interpreted, the Montana Legislature has prohibited all forms of local government from exercising any regulatory power over the purchase, sale or transfer of firearms,” wrote Fox, who more than a year before the ordinance was passed warned it “likely violates our constitutional right to keep and bear arms.”

Missoula’s city attorney, Jim Nugent, sent an email to council members, making them aware of the decision.

TO WHOM IT MAY CONCERN:

MOMS DEMAND ACTION FOR GUN SENSE IN AMERICA and many community citizens had requested the ordinance. I do not know if a court challenge might occur.

The AG opinion in paragraph 24, page 8, provides that the city can prevent and suppress possession of firearms by  convicted felons, adjudicated mental incompetents illegal aliens and minors which is exactly what the city council was attempting to prevent and suppress. The Missoula City Council was attempting to prevent and suppress possession by providing for a background check prior the a transfer of ownership occurring.

At the end of paragraph 19, the AG opinion PAGE 7, inappropriately enters into a discussion about potential firearm registration as being a concern, which was never ever the city council’s concern or discussion and the word registration does not even appear in subsection 45-8-351(2) MCA which is the statutory authorization provision that the city council was relying on.

The AG opinion also fails to acknowledge or recognize the constitutional and statutory mandates in Article XI, section 4(2) Montana Constitution and section 7-1-106 MCA that requires that municipal powers shall be liberally construed. Further, the second and final sentence of section 7-1-106 MCA states that “Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority.”

The above flaws in the AG opinion do not necessarily equate to the basis for a successful court challenge to the AG opinion.

JIM NUGENT