AG Fox undecided on Missoula’s gun ordinance

By Martin Kidston

The state’s attorney general last week confirmed that a Republican lawmaker from eastern Montana has asked his office to weigh in on a newly passed Missoula ordinance mandating background checks for most gun sales and transfers between private parties.

Gathered with fellow Republicans at a campaign rally in Missoula last Friday, Attorney General Tim Fox said Austin Knudsen, R-Culbertson, has asked his office to issue a legal opinion on the Missoula ordinance, which some have argued is unconstitutional.

Attorney General Tim Fox

“If we’re asked, we have to take a look at whether or not to do one (an opinion), and we haven’t made that decision yet,” said Fox. “It’s too early to tell, and certainly I wouldn’t comment on what the outcome might be at this time.”

Fox said the process would take 90 days if the decision were made to issue an opinion. The decision on whether or not to issue an opinion is based on a number of factors, Fox said.

“We try to determine whether or not the statutory criteria are met,” he said. “If the decision is made to do one, then we reach out for public comment to stakeholders and people who have interest in the subject.”

“If a decision is made to not do one, we could do a letter of advice, which doesn’t haven’t the effect of law,” Fox added. “We could also decide not to do anything, so there’s options on the table.”

Republican gubernatorial candidate Greg Gianforte, who was also present at Friday’s rally, maintained his belief that the Missoula ordinance is unconstitutional.

“I’m a strong proponent of the Second Amendment,” Gianforte said. “I’m endorsed by the NRA, the Montana Shooting Sports Association, and Gun Owners of America. When I’m elected as the next governor, I will defend our Second Amendment rights. This local ordinance, I truly believe, is unconstitutional.”

Gianforte said federal overreach remains a top issue with the voters he’s spoken with, and it’s something he’d work to address if elected to office.

Some, however, have questioned how overreach from Washington, D.C., into Montana affairs differs from overreach from Helena into the affairs of Montana’s self-governing cities. Gianforte said he’d look at excessive regulations that interfered with liberty and prosperity.

“We need regulation to preserve public safety and also to preserve our liberties,” he said. “Beyond that, they get in the way of small business people prospering here. That’s going to be one of my first focuses – how do we get a more prosperous Montana while we reduce regulation, lower taxes and bring a culture of customer service back to state government.”

Last year, Missoula City Attorney Jim Nugent issued a legal opinion supporting the city’s ordinance requiring background checks for most gun sales and transfers.

In that opinion, Nugent said the measure aimed to “generally ensure that background checks are performed for private, non-dealer, firearm transfers” in an effort to prevent those identified in state law from acquiring a weapon in a private, non-regulated transaction.

While state law says that a local government may not prohibit, register, tax, license or regulate the purchase, sale or transfer of firearms, Nugent said it also includes language saying “except as provided in subsection 2.”

City Attorney Jim Nugent

Nugent believes the subsection allows local governments to take action to prevent and suppress the possession of firearms by convicted felons and other groups, including adjudicated mental incompetents, illegal aliens and minors.

As a result, Nugent wrote, “there is ample adequate legal basis in Montana law” to allow the city to implement its ordinance.

“Ultimately, if there is any litigation, the courts will determine the legality of any ordinance adopted by the City Council,” Nugent wrote.

Shortly after Nugent released his opinion, Fox released a statement regarding the proposed ordinance, saying, “Contrary to the opinion of the city attorney, whom I respect, I believe that Missoula’s proposed gun control ordinance is prohibited by state law and likely violates our constitutional right to keep and bear arms.”

Over the past year, sponsors of the local measure have maintained that it’s not a “gun control” measure. Those who pass a background check can still purchase the firearm, they’ve said.

Fox on Friday said his office has yet to decide whether to weigh in on the local ordinance. He said he had other important work to pursue, including drug and substance abuse, human trafficking and sexual assault.

He said a number of bills likely to appear before the 2017 Legislature will aim to make the state’s sexual assault laws more effective, including the definition of consent.

“Sometimes those things get tweaked a bit in the Legislature,” said Fox. “We’re going to be a part of that process to make sure that Montanans get the best piece of legislation out of there as we can.”