Upcoming City Council hearing, 10/19 - what to do.

City of Missoula Proposal to Regulate Private Firearms Sales

Statement of the issue: Missoula City Council Member Bryan von Lossberg has proposed that the Missoula City Council consider adopting an ordinance that would require a federal background check to be done for every private sale of a firearm within the boundaries of the City of Missoula. City Attorney Jim Nugent has written a “Legal Opinion” concluding (sort of) that such an ordinance would be valid under Montana law.

This comment will address three components of the subject, legal problems, practical problems, and general comment.

Legal problems. Montana law at 45-8-351 prohibits cities from regulating the purchase, sale or transfer of firearms. Subsection (2)(a) of 45-8-351 does allow a city the narrow authority to “prevent and suppress” the “possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors.” (emphasis added)

City Attorney Nugent's “Legal Opinion” does not address the intent of the proposed ordinance, namely to regulate the purchase, sale and transfer of firearms by requiring a background check for private transfers, but only reiterates the narrow authority of a city to prevent “possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors.” (45-8-351(2)(a) emphasis added)

Thus, Nugent's “Legal Opinion” is not relevant to whether or not the City of Missoula could enforce the proposed ordinance, as it is proposed. Further, because Montana law explicitly prohibits cities from regulating the purchase, sale or transfer of firearms, the proposed ordinance would be unlawful and unenforceable under controlling state law.

Practical problems. The ordinance, as proposed, would require a private seller of a firearm to take his prospective buyer to a “dealer” with a Federal Firearms License, during business hours, and get the dealer to run the buyer through the dealer's access to the National Instant Criminal Background Check System (NICS). One insurmountable obstacle to that idea is that FFLs simply are not allowed to run anyone through the NICS. A dealer is only allowed to run the purchaser for a firearm in the dealer's inventory.

Yes, the dealer could take the firearm proposed for sale into inventory and then run the purchaser, as if the purchaser were buying the dealer's property. However, that sets up an additional problem that if the purchaser is not deemed eligible by NICS to purchase (perhaps because the purchaser is “John Smith” and there are 247 other “John Smith”s with criminal records in the U.S.), then since the firearm is officially in the dealer's inventory the dealer may not be able to return the firearm to the would-be seller without more forms filled out and an additional background check to surrender the firearm to the intended seller.

This complexity and likely expense would offer any private seller plenty of motive to simply drive a mile to outside the city limits to conduct his transaction with the purchaser, which would be much simpler and less expensive than waiting for a dealer to be open, waiting in line for dealer assistance, filling out long forms, officially transferring the firearm to the dealer, and waiting for a NICS check to clear. It would only take five minutes for seller and buyer to drive past the city limits to conduct the transaction legally there, compared to an hour with the licensed dealer inside city limits.

Further, such an ordinance would effectively end the historic gun shows that are held multiple times in Missoula every year, gun shows at which hundreds or thousands of private firearm transfers are conducted, and which bring millions of dollars into Missoula from people traveling from across Montana, and from other states, to these regional events, people who spend money on lodgings, meals, fuel, and shopping in Missoula. Such an ordinance would constitute substantial economic loss for Missoula.

General comment. While the proposed ordinance may spring from good intentions, it is fraught with numerous and serious, real problems, both legal and practical. Good intentions are not a sufficient excuse for bad or misconceived policy. That the proponents are unaware of or so willing to overlook these problems is not a credit to them.

Let me restate the obvious. It is already illegal under federal and Montana law for the target groups, convicted felons, those adjudicated as mentally incompetent, minors and aliens, to purchase firearms. It is already illegal under federal or state law for a person to knowingly sell a firearm to one of those people. Further, people who obtain firearms for crime do not buy them through legitimate channels of commerce. They steal firearms, or buy them from other criminals who also ignore the laws.

It is stunning to contemplate that Missoula policy-makers believe they can cure any problem of criminal access to firearms by simply making illegal under a city ordinance what is already illegal under federal and state law, while ignoring state law themselves.

I have news for those policy-makers. Criminals don't read city ordinances. Criminals don't comply with city ordinances. And, if would-be criminals are not deterred by federal and state criminal laws, it is a no-brainer that they will not be deterred by a puny city ordinance. Such an ordinance will only make life difficult for normally law-abiding people.

Finally, the issue of mental health and firearms will be raised in conjunction with this proposed ordinance. That subject is another quagmire, one which I have already addressed in detail at:

Gary Marbut
President, Montana Shooting Sports Association
Expert, firearm safety, self defense, use of force, Montana gun laws, etc.