City: AG acted at behest of “distant” legislator when nixing Missoula’s gun ordinance

A Missoula District Court judge has accepted the city of Missoula’s motion to file an over-length brief in its lawsuit against Montana Attorney General Tim Fox and his legal opinion that deemed the city’s ordinance on background checks unenforceable under state law.

Adopted in 2016, the city’s ordinance required background checks prior to most gun purchases from private, unlicensed sellers, not unlike federal rules aimed at background checks in traditional gun stores.

“Like similar ordinances and statutes in 20 states, the District of Columbia and numerous localities, the ordinance closed a loophole in federal law that allowed convicted felons and other categories of people prohibited from owning firearms to obtain guns without a background check,” the city’s motion argues.

But in early 2017, acting on a request from a Republican lawmaker who lives 500 miles from Missoula in the state’s eastern reaches, Fox reviewed the ordinance and found it unenforceable.

The city contends the ordinance was properly enacted and lies within its authority under state law. As a result, the city believes Fox’s opinion was “incorrect” and “erroneous” and politically motivated.

“By invalidating the city of Missoula’s lawful ordinance (at the behest of a distant legislator in a community unaffected by the ordinance), the Attorney General’s opinion deprives Missoula of local authority and substitutes the will of Missoula citizens (acting through their local representatives) with that of politicians in Helena and Culbertson,” the city argues.

The city’s suit contends that the Tenth Amendment of the U.S. Constitution reserves all powers to the states unless they are specifically delegated to the federal government. Likewise, it adds, the Montana Constitution ensures that self-governing cities like Missoula have all powers not expressly prohibited by law.

The law does not prohibit Missoula from adopting a background check ordinance, the city argues. “As a self-governing city with broad powers under state law, Missoula has the power to enact, implement, and enforce the Background Check Ordinance,” the motion reads.

The city announced in April that it planned to challenge Fox’s legal opinion, claiming that Montana law authorizes cities to enact a background check “for public safety purposes.”

Those purposes include efforts to “prevent and suppress … the possession of firearms” by those who are prohibited by law from possessing them, such as convicted felons, adjudicated mental incompetents, illegal aliens and minors.

Among other things, the case will explore a city’s self-governing powers and whether the ordinance is preempted by state law, which the city argues it’s not.

Zach Franz, an associate with Boone Karlberg representing Missoula’s case, said the city and the Attorney General’s Office have agreed to let District Court decide the matter based upon opposing motions for summary judgment.

“We view this as an entirely legal issue that doesn’t need trial or discovery or anything else, and I think the Attorney General’s Office agrees that it can just be resolved on each side by filing a brief and letting the judge decide,” Franz told the Missoula Current. “We expect whichever side loses to appeal to the Montana Supreme Court,” he said.