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Tim Fox

Montana Attorney General Tim Fox speaks at the crime victims forum in Billings, August 18, 2016.

Montana Attorney General Tim Fox will issue a legal opinion about Missoula's new gun purchase background check ordinance after receiving a request to review the law from Austin Knudsen, speaker of the Montana House of Representatives.

Knudsen, R-Culbertson, announced Sept. 26, the night the Missoula City Council passed the measure, that he would seek an opinion from Fox. The Montana Department of Justice received the official request on Oct. 10, and Fox informed Knudsen on Tuesday he would issue an opinion, according to department spokesman John Barnes.

The new ordinance, which takes effect in late October, mandates a background check for gun sales between private parties in city limits, with a limited number of exceptions.

Now that he has accepted Knudsen’s request, Fox has three months to issue his legal opinion, which carries the force of law unless overruled by a state district court or the Montana Supreme Court.

In a memorandum asking Fox to weigh in on the matter, Knudsen said the new ordinance violates several sections of the Montana and U.S. constitutions as well as state law MCA 45-8-351, which says local government cannot "prohibit, register, tax, license, or regulate the purchase, sale or other transfer" of "any weapon."

Missoula City Attorney Jim Nugent has said the ordinance falls under an exception to that law. One subsection allows local governments to “prevent and suppress ... the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.”

In his memorandum, Knudsen said the ordinance didn’t apply, saying it is “too broad to fit under this narrow subsection.”

“The Missoula ordinance does not just apply to convicted felons, adjudicated mental incompetents, illegal aliens, and minors,” he wrote. “In the end, the Missoula ordinance will do nothing more than make otherwise law-abiding citizens criminals for violating this ordinance.”

Fox sent a letter to Knudsen saying he will investigate whether the state law allows a local government to pass regulations requiring background checks.

In October 2015, when the City Council was deliberating on the then-proposed ordinance, Fox issued a one-sentence statement that he believed the proposal likely violated state law, but did not issue a formal opinion.

Since the measure passed the City Council, Gov. Steve Bullock – who was attorney general before being elected governor – and his Republican opponent Greg Gianforte have also said they think the ordinance violates state law.

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