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Montana Attorney General: Missoula Can't Require Background Checks For Gun Sales

The group "Moms Demand Action For Gun Sense" rallies in Missoula, MT for stronger gun laws, Dec. 14, 2015.
Josh Burnham
The group "Moms Demand Action For Gun Sense" rallies in Missoula, MT for stronger gun laws, Dec. 14, 2015.

Montana’s Attorney General today ruled Missoula cannot enforce an ordinance requiring gun sale background checks within the city limits.

The Missoula City Council passed the background check ordinance last September. Soon after, state House Speaker Austin Knudsen of Culbertson asked for Attorney General Tim Fox’s legal opinion on the matter.

Nobody seemed surprised that Attorney General Tim Fox overturned Missoula’s gun ordinance. Not Axmen South Firearms owner Rich Ochsner who opposed the measure from day one.

"If you read the state constitution, it’s pretty darn specific as far as what can be regulated," says Ochsner. "All of us that are in the know when it comes to those things expected this ruling.”

Missoula City Councilman Bryan von Lossberg was one of the sponsors of the local background check measure, which passed last September.

"The attorney general made it very clear quite a long time ago where he stood on this issue," von Lossberg says. "I think he and his staff prepared an opinion that’s consistent with that."

Attorney General Fox's opinion basically says state law does not allow cities to exercise any power that affects the right to bear arms. Fox spokesman Eric Sell says local governments have very narrow leeway when it comes to regulating firearms.

"Certain things they can regulate is where you can and can’t have concealed weapons, but the sale and transfer of firearms isn’t one of those things and the Missoula background check is a violation of state law," says Sell.

Missoula City Attorney Jim Nugent says the ordinance fell under an exemption to state law. That exemption allows local governments to prevent convicted felons, illegal aliens, adjudicated mental incompetents and minors from possessing firearms.

"Yeah, that certainly is in state statute, but the express prohibition of local governments from regulating the sale and transfer of firearms supersedes the lower authority of local government," says Sell.

Fox’s opinion said it was troubling that the city of Missoula’s interpretation of state law could even allow a city to require a firearm registration program.  That puzzles Missoula City Attorney Jim Nugent.

"They didn’t address everything that I felt was relevant to what the city was doing," Nugent says. "They knew about these things because I submitted this information to them about the liberal construction and the statute and the constitution. And not once (was there) any suggestion anywhere about registration or anything like that."
Still, Missoula gun store owner Rich Ochsner says the now-overturned ordinance was completely unnecessary.

"It doesn’t make a lot of sense to do it because there’s already federal guidelines on the same thing," says Ochsner. "What I’d like to see is some of the federal laws that everybody’s concerned about – just enforce the things that are already out there."

City Councilman Bryan von Lossberg, who was one of the ordinance’s sponsors, says those background checks don’t cover private transactions.

"The point was to save lives," von Lossberg says. "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."

The attorney general’s opinion has the force of law, unless it’s overturned by a court. Nobody we spoke with today had heard of any intent yet to challenge Tim Fox’s opinion.

O’Brien first landed at Montana Public Radio three decades ago as a news intern while attending the University of Montana School of Journalism. His first career job out of school was covering the 1995 Montana Legislature. When the session wrapped up, O’Brien was fortunate enough to land a full-time position at the station as a general assignment reporter. Feel free to drop him a line at
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