MISSOULA — Missoula's much-debated ordinance requiring background checks on private gun sales finally was approved last week, but debate continues as to whether it's legal or enforceable — or even workable.
“It’s gonna be a paperwork nightmare for us,” said Bob Burton, manager at Grizzly Gold and Silver. “It’s not going to be very practical in a business sense.”
That's because people conducting private gun sales within the city would have to go to a Federal Firearm License (FFL) holder — such as Grizzly Gold and Silver — for the background check now required by the ordinance.
Such sales would require Burton to enter a gun in his records, and then complete the background check through the National Instant Criminal Background Check System (NICS).
If the buyer fails the background check, Burton is required to then check the seller before giving the gun back. If the seller fails, Burton is left with a gun he didn't buy and can't sell.
Bob Ward's, Walmart and Axmen Firearms said they don’t, and wouldn’t start, offering checks on private transactions.
Just two shops contacted were open to the idea of doing background checks on private sales — 1st Interstate Pawn and A Nickels Worth pawnshop.
Both said they’d probably charge a fee, and Tim Taunts from A Nickels Worth said that while he might be willing to run the check, he thought a city ordinance requiring they hold onto items for a minimum of 10 days would prevent any private sales from happening quickly, at least through a pawnshop.
Those background checks take anywhere from five to 15 minutes to complete, according to Sarah Brucker with Axmen. It’s not the cost or time that makes Axmen unwilling to perform the checks, she said, it’s dealing with a gun that they have no stake in.
But Ward 1 City Council representative Bryan von Lossberg said he thought it was unlikely Missoulians would have no way to comply with the law. Missoula had 58 registered FFL holders as of December 2015, according to a list on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ website.
“I don’t think that hypothetical will arise,” he said. “It would be pretty sad …that (FFL holders) would stop doing it.”
Von Lossberg said that as he worked on the ordinance, he found more and more gun owners who already were in the habit of checking who they sold guns to, a practice he hoped would set an example for the community.
Ward 6 representative and co-sponsor of the ordinance Marilyn Marler similarly challenged those who opposed the ordinance to set an example as gun owners.
“A recurring theme … is that passing expanded background checks is an unjustified encumbrance on gun owners, or an inconvenience to law-abiding citizens, or an affront to law-abiding citizens and to that I guess I would say to my fellow gun owners, let’s raise the bar for ourselves. I mean, it took me an hour to open a checking account today,” she said at last week's council meeting. “I think that right now people don’t know that private people can request a background check when they’re doing a private sale.”
Tom Platt, who identified himself as a 40-year hunter and gun owner, spoke at Monday’s meeting as well. Background checks are not complicated, he said, and are easily facilitated by any gun shop in town.
But, just to make sure the public has easy access to background checks following the ordinance, Platt said he applied for an FFL and planned to make himself available to run people through NICS.
“That’s a service this community already provides, and I’m willing to make sure it’s provided,” he said.
During the long process of approving the ordinance, dissenters brought up the idea that it would be unenforceable, or that the Missoula Police Department wouldn’t enforce it.
Mayor John Engen said at last week’s City Council meeting that Missoula Police Chief Mike Brady assured him the ordinance will be enforced.
“The City Council, if it chooses to enact these ordinances, will enable the Missoula Police Department to enforce those ordinances under the law,” Engen said Brady told him. “Their job is not to judge, their job is to enforce.”
About an hour after the City Council's meeting last week, Montana House Speaker Austin Knudsen (R-Culbertson) posted on his Facebook page that he'd ask Montana Attorney General Tim Fox to issue a legal opinion on the ordinance and the section of Montana Code Annotated that outlines what a local government can regulate regarding firearm sales.
City Attorney Jim Nugent said he wasn’t exactly sure where that will lead.
“It’s a process I don’t recall an attorney general ever engaging in,” he said. “He can issue opinions and his formal opinions have the force of law,” he said of Fox, but the state Supreme Court can overturn that opinion.
Nugent wrote a legal opinion on the ordinance last October that state law did not prevent City Council from passing the ordinance.
After Nugent’s opinion was released, Fox replied in an informal statement, “I believe that Missoula’s proposed gun ordinance is prohibited by state law and likely violates our constitutional right to keep and bear arms.”
If the ordinance was found to violate Montana law, it wouldn’t be formally repealed or taken off the books, Nugent said. It simply wouldn’t be enforced.
He said an ordinance that tried to ban radioactive materials from being shipped through the city on trains a few decades ago was declared unlawful in a court case, but is still in the Missoula Municipal Code (section 8.56).
Von Lossberg said he was “well aware” the attorney general would be asked to issue an opinion, but didn’t let the possibility of litigation or a judge overturning the ordinance influence his vote.
He trusted Nugent’s legal opinion and aside from that, it was more important for him to pass a law he felt was right than be worried about what would happen in court after it passed.
“Weighing that against, it might be illegal, because we’re being told it’s illegal by the opposition,” von Lossberg said, “that’s an easy choice for me.”
The ordinance can be read on the city's website. That version does not include the amendment passed Monday that changed language in section G-3 under "Exceptions from the Background Check Requirement," making it legal for those borrowing a firearm for hunting purposes to travel to and from their hunt without the gun's owner.