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Judge rules in favor of Missoula ordinance requiring background checks on all gun sales

Judge rules in favor of Missoula ordinance requiring background checks on all gun sales

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Attorney General Tim Fox

Attorney General Tim Fox speaks at the Montana state Capitol in September 2018.

A state judge on Thursday upheld Missoula's 2016 gun ordinance, which requires background checks on all gun sales in city limits, even between private parties.

Judge Robert "Dusty" Deschamps' ruling rejected an opinion from Montana Attorney General Tim Fox that said local governments don't have the power to limit the sale and transfer of firearms.

State law, Deschamps wrote, says "Missoula's governing authority must be 'liberally construed' with 'every reasonable doubt as to the existence of a local government power or authority … resolved in favor of the existence of that power or authority.'''

"By invalidating the City of Missoula's Ordinance, the Attorney General's opinion deprives Missoula of its own authority," Deschamps wrote.

Missoula, he concluded, is authorized by state law to prevent felons from possessing firearms and can therefore require background checks within city limits.

Earlier this year, the city challenged Fox's decision to void the background check ordinance, which was passed in 2016 but never went into effect because of Fox's opinion.

Missoula City Council Chair Bryan von Lossberg, sponsor of the ordinance, said Thursday evening the decision was "deeply affirming. It's always been about public safety in Missoula."

Several groups had weighed in on the case in Missoula County District Court, including the National Rifle Association, as well as a group of four local citizens who shared their experiences and support for the ordinance. 

In his ruling, Deschamps mentioned specifically these citizens, who said they were "not zealots who support banning guns entirely or taking away anyone's Second Amendment rights."

"These are folks who are both gun owners and non-gun owners with a common sense of values around gun background checks," von Lossberg said. 

The Attorney General's Office expressed disappointment in the ruling in an emailed statement. 

"The state respectfully disagrees with the court's ruling and maintains that Montana law does not allow cities to enact a patchwork of firearm regulations," Department of Justice spokesman John Barnes said.

Barnes added that the state was unable to file an additional brief in the case, which would have been filed on Monday. 

"Without the opportunity to fully argue the case, the state is constrained to either ask the court for reconsideration pending receipt of its reply brief, or file an immediate appeal to the Montana Supreme Court."

Barnes did not immediately respond to a follow-up email from the Missoulian asking if the Attorney General's Office will appeal Deschamps' ruling.

Deschamps said in his order that an immediate ruling "clearly preserves the interests of the city's resources, the state's resources" and would bring the matter to a close. 

Almost immediately after the city council passed the ordinance in September 2016, Montana House Speaker Austin Knudsen, R-Culbertson, asked Fox to issue an opinion, in which he voided the ordinance in early 2017.

"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," Fox wrote.

Not so, Deschamps said in his Thursday ruling. The Attorney General's failure to recognize the law's presumption in favor of the power of local governments like Missoula's is "erroneous," Deschamps wrote.

He said the Legislature's intent is found in a statute that grants the city authority to prevent and suppress the possession of a firearm by a felon.

The NRA argued in the case that felons would not be deterred by the ordinance, but could, for example, simply find another person to pass the background check for them. "To really keep guns out of the hands of felons, then perhaps the solution is to ban possession of firearms by everyone," attorneys for the NRA argued. 

Deschamps called the NRA's reasoning "dubious at best."

A local gun rights group, the Montana Shooting Sports Association, attempted to file as an intervenor in the case in opposition to the ordinance, but was ultimately denied.

It had said that if the city ordinance were upheld, it would file a lawsuit challenging the ruling and seeking to preserve the constitutional rights of its members.

Gary Marbut of the Montana Shooting Sports Association and Rhoades did not immediately respond to emails about a follow-up lawsuit.

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