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A Missoula universal background check ordinance violates firearm owners' federal and state constitutional rights, according to a Montana gun rights group that wants to insert itself in a lawsuit between the city and Montana Attorney General Tim Fox.

In April, the city sued Fox over a legal opinion he issued in early 2017 that negated an ordinance the City Council passed the year before. That ordinance would have mandated background checks for all gun purchases in the city, including those between private parties.

The attorney general ruled that the ordinance violated state law, and that Missoula had no right to independently regulate the sale of firearms. The city’s lawsuit uses the same logic under which the ordinance was originally passed. It cites a state law that gives local governments the ability to “prevent and suppress the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors,” as the rationale for the background checks on all gun purchases.

In a response filing in June, Fox asked Missoula County District Court Judge Robert “Dusty” Deschamps to toss out the lawsuit, citing several factors, including that the city had waited too long to challenge Fox’s opinion, on top of the legal interpretation Fox had already given on the matter.

But last month, the Montana Shooting Sports Association — an organization headed by firearms expert Gary Marbut that advocates for the interests of hunters and gun owners — filed a motion to intervene in the case. That motion says that in addition to the points he’s already made, Fox should have brought up the Second Amendment, Montana Constitution and Montana Human Rights Act's rights of gun owners as reasons why the ordinance isn’t valid.

A brief filed by the organization’s attorney Quentin Rhoades of Missoula said if the city were to prevail in its suit against Fox, MSSA would need to file a new lawsuit on behalf of its local members to raise these issues, and in the interests of efficiency believe they are best folded into the existing case instead.

Among the claims by the group is that the ordinance runs afoul of rights guaranteed by the Montana Constitution, including “The right of any person to keep or bear arms in defense of his own home, person, and property … shall not be called in question.”

MSSA also claims that the ordinance would limit its members' ability under a section of the Montana Human Rights Act, which holds that “any necessary force may be used to protect from wrongful injury” a person, their property, or members of their family.

Deschamps will now make a determination if MSSA has a legitimate interest in the case and should be allowed to intervene.

Missoula has hired attorneys from local firm Boone Karlberg to represent it in the case, although Mayor John Engen said the firm’s expenses have been capped at $25,000. The city is also being assisted pro bono by an attorney from Everytown for Gun Safety, a national activism organization backed by billionaire former New York City Mayor Michael Bloomberg.

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Law and Justice Reporter

Crime reporter for the Missoulian.