Attorney General Tim Fox said Thursday that Missoula's background check ordinance violates Montana state law.
"Plainly interpreted, the Montana Legislature has prohibited all forms of local government from exercising any regulatory power over the purchase, sale or transfer or firearms," he wrote.
Missoula City Attorney Jim Nugent said Fox's ruling came as no surprise.
“I don’t think anyone expected anything different,” Nugent said. “Pursuant to the attorney general opinion, it (the ordinance) can’t be enforced.”
The Missoula ordinance, passed in the fall, mandates a background check on all gun sales between private parties within city limits, with a limited set of exceptions. Such checks previously were not required.
In October, weeks after the Missoula City Council approved the measure, Montana House Speaker Austin Knudsen, R-Culbertson, filed a formal request with Fox asking for a legal opinion on the ordinance. In particular, he asked Fox to weigh in on whether it conflicts with state law.
Nugent responded to Knudsen’s request for a legal opinion by saying the ordinance fell under an exemption to that law, which allows local government to “prevent and suppress ... the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.”
According to Fox’s interpretation of the same Montana Code Annotated (MCA) section that Missoula used to defend their ordinance, the city’s law was illegal.
Fox said the section doesn’t allow regulation of purchases, sales or transfers by felons or minors, only “possession,” the specific word used in the law.
He also wrote that the only situations where Montana state law allowed exceptions to the right to keep or bear arms involve “convicted felons, not law-abiding citizens looking to purchase, sell or transfer a firearm.''
“This dragnet approach on all gun sales or transfers within the City of Missoula’s borders ignores the long-standing statutory prohibitions previously discussed.”
The state previously allowed cities to make their own laws regarding firearms sales, Fox wrote in his opinion, but a 1985 House bill repealed that section of the MCA and replaced it with new language that still is in place.
“The purpose of HB 643 was clear – only the state should decide how firearm purchases, sales and transfers should be regulated, if at all.”
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Nugent took issue with one line in particular in Fox’s opinion, which said the ordinance would allow a city to require registration of firearms.
“The word ‘registration’ doesn’t even appear,” Nugent said of the ordinance. “They don’t seem to understand our rule closely.”
Fox’s new legal opinion has the force of law unless overruled by a district court or the Montana Supreme Court.
Nugent said an appeal would be up to the City Council, and he and Ward 1 City Council representative Bryan von Lossberg said an appeal wasn’t yet being discussed.
Von Lossberg brought the ordinance forward and spearheaded its passage, after more than a year of rewrites and several hours-long public debates.
Some of his constituents, including members of the local chapter of the Moms Demand Action for Gun Sense in America advocacy group, presented von Lossberg with data about the many suicides and acts of intimate partner violence that were committed with guns that shouldn’t have been in a person’s possession.
“Those are issues that really resonated with me,” he said.
Though the ordinance is now legally unenforceable, von Lossberg said it helped counter confusion and misinformation about the background check process.
He is a gun owner who has used background checks on private sales, as had many people who commented during the public debates.
“It’s raised awareness,” von Lossberg said. “It’s leadership.”
Missoula was the first city in Montana to pass an ordinance requiring background checks, though von Lossberg said that’s small consolation.
“More than anything, I’m interested in saving lives more than I’m interested in making statements,” he said.