MISSOULA, Mont. - Montana's Attorney General says Missoula's gun background check ordinance violates Montana state law. Attorney General Tim Fox told NBC Montana Thursday, it boils down to a statute.
"Missoula's ordinance is outside of its authority," Fox said.
Fox issued an opinion saying state law does not allow cities to exercise any power that affects the right to bear arms..Click here to read the full legal opinion from Attorney General Tim Fox.
The ordinance in question was passed in September. It requires private sellers to complete a background check before selling a gun. That means if you're a gun owner and want to sell your firearm to a friend or colleague, you're required to run a background check on the buyer.
"If there's going to be one more extra step for somebody to get a gun that can harm somebody, either on purpose or on accident, I think why not and create a safer environment for everyone if possible," Jack Dawson, a Missoula resident told NBC Montana.
Missoula City Council member Bryan von Lossberg sponsored the legislation.
He told NBC Montana that he is not surprised by the Attorney General's decision but does not see a "clear path of appeal." Von Lossberg says he believes the ordinance is effective and necessary but expected the ruling as the Attorney General had made his position "clear" long before today's ruling was issued.
Von Lossberg also told NBC Montana the council was advised the ordinance was within the law by the city attorney, Jim Nugent.
"He absolutely was consulted and issued an opinion making it clear the city was absolutely in it's rights to pass this," explained Von Lossberg.
The city council could appeal the Attorney General's opinion and keep the ordinance. NBC Montan reached out to Nugent for comment. He sent us an e-mail he had sent to council members with one bottom line: any problems he sees in Fox's opinion don't necessarily mean the city could win a court challenge.
The attorney general didn't directly comment on what the city of Missoula needs to do with the ordinance, but did say common sense would be to stop enforcing the ordinance.
Right now, Von Lossberg says there's no immediate plan to appeal the Attorney General's opinion.
The following is text from an e-mail Missoula City Attorney, Jim Nugent, sent to city council members Thursday:
"TO WHOM IT MAY CONCERN: MOMS DEMAND ACTION FOR GUN SENSE IN AMERICA and many community citizens had requested the ordinance. I do not know if a court challenge might occur.
The AG opinion in paragraph 24, page 8, provides that the city can prevent and suppress possession of firearms by convicted felons, adjudicated mental incompetents illegal aliens and minors which is exactly what the city council was attempting to prevent and suppress. The Missoula City Council was attempting to prevent and suppress possession by providing for a background check prior the a transfer of ownership occurring.
At the end of paragraph 19, the AG opinion PAGE 7, inappropriately enters into a discussion about potential firearm registration as being a concern, which was never ever the city council's concern or discussion and the word registration does not even appear in subsection 45-8-351(2) MCA which is the statutory authorization provision that the city council was relying on.
The AG opinion also fails to acknowledge or recognize the constitutional and statutory mandates in Article XI, section 4(2) Montana Constitution and section 7-1-106 MCA that requires that municipal powers shall be liberally construed. Further, the second and final sentence of section 7-1-106 MCA states that "Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority."
The above flaws in the AG opinion do not necessarily equate to the basis for a successful court challenge to the AG opinion.