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:
http://www.progunleaders.com/MentalHealth/
Gary Marbut
President, Montana Shooting Sports Association
Expert, firearm safety, self defense, use of force, Montana gun
laws, etc.