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Gun Policy

A Montana City Is Moving Toward DIY Universal Background Checks, and It Thinks It’s Got the Law on Its Side

A state preemption statute was supposed to thwart strong local gun ordinances, but its language might just let Missoula get its way.

Missoula, Montana, is a liberal town deep in the heart of the gun-loving High West. It sits in a state not known for taking kindly to gun laws — in fact, since 1985, when the legislature passed what’s known as a “preemption” law, Montana has barred municipalities from regulating gun access beyond what applies throughout Big Sky Country. That state rule precludes most local efforts to do much about gun violence.

But one group of Missoula City Council members now believes that very preemption rule could justify a new measure that would make one of the strongest (and hotly-contested) gun violence prevention measures law in their city. This week, the Council’s Public Safety and Health Committee voted to bring forward to the full body a measure making background checks universal in Missoula, even for private gun sales. It’s only the first step in a long legislative process, but a sign of some confidence in the measure.

“I would be surprised if it didn’t draw a challenge in the courts,” says Missoula City Council member Bryan Von Lossberg, who sponsored the background check ordinance along with Marilyn Marter and Emily Bentley. Nonetheless, he’s confident his universal background check proposal will stand a fighting chance against the almost-inevitable lawsuit. Specifically, he sees justification for the proposal in a close reading of some key language in the state preemption law.

The first sentence of the relevant section of State Code says cities may not “prohibit, register, tax, license, or regulate the purchase, sale or other transfer” of weapons — except as provided in subsection 2 of the code. That subsection carves out a few small exceptions: Cities can regulate shooting guns, and carrying at public assemblies and public properties. There’s also one more provision, and it’s the one that gives Von Lossberg and his colleagues hope their proposal could survive in court. The preemption law states that for public safety purposes, cities can prevent and suppress the possession of guns by felons, those adjudicated mentally unfit, undocumented immigrants, and minors — populations that background checks screen for. 

“I have definitely thought this problem through, and I haven’t come up with any other effective, efficient way to do that” besides universal background checks, says Von Lossberg. If Montana’s cities and towns are allowed to take action to prevent felons and other dangerous people from acquiring guns, he argues, they should be able to enact universal background checks as a way to do that. It’s this “very narrow intent,” Von Lossberg says, that should ensure the bill’s survival if it’s passed.

Gun rights advocates are hardly in favor of the measure, of course. Gary Marbut, president of the Montana Shooting Sports Association, registered his objections to the Missoulian. He took issue with expanded local gun laws and background checks in general, though, not whether the Missoula proposal violated the preemption law.

National legal experts expect a fierce fight. Laura Cutilletta, a senior attorney at the Law Center to Prevent Gun Violence, believes gun lobbyists succeeded in passing a very broad preemption rule in Montana. In her experience, Cutilletta has found that “the gun lobby is very litigious even in the absence of preemption law,” frequently suing cities in places like California that have long upheld local laws. The Law Center had not yet done an analysis of the Missoula proposal, so she was reluctant to make any kind of statement on how well it might withstand legal challenge if passed. “If they have a legal theory, it’s probably worth going ahead and letting the courts decide,” she said. “It’s great that they’re not just going to sit back and have their hands tied.”

[Photo: Robby Robinette]