Posted by jhingarat21 on 12th Oct 2015
Proposed Missoula Gun Sale Rule Sparks A Legal Debate
A proposed Missoula ordinance to require background checks on private gun transfers looks like a solution in search of a problem, according to a legal critic of the effort.
The ordinance would also create a new set of problems without solutions, said attorney Quentin Rhoades. Specifically, it would require someone with a federal firearm license to take possession of a private gun in order to run the background check.
If the private buyer fails the review, the dealer in the middle has to also run a check on the private seller before giving the gun back.
“The license holder could end up holding the gun and dealing with two potentially pissed-off customers,” Rhoades said. “You won’t see any local gun shop volunteering to participate.”
Missoula City Council members want to put the proposal to a public hearing on Oct. 19 and will consider that scheduling decision at their meeting on Monday.
The rule’s intent states “that no sale or transfer of a firearm shall take place within the city limits unless and until the person purchasing or otherwise receiving the firearm passes a national instant criminal background check.”
“Having this law is an encouragement for all people to do the legal thing,” said Ward 1 Councilman Bryan von Lossberg, sponsor of the proposed ordinance. “I’ve been in touch with a number of people in the community who are gun owners, some of whom have done transfers and used this very process. They’ve gone to a federal dealer and used the dealer to process a background check for a gun transfer.”
Rhoades and his client, Gary Marbut of the Montana Shooting Sports Association, argue the proposal is dead on arrival because state law specifically prohibits cities from exercising “any power that applies to or affects the right to keep and bear arms, except that a local government has the power to regulate the carrying of concealed weapons.”
“This is basically saying you can’t do gun shows in Missoula,” Rhoades said. “The un-welcome mat is out. It’s a political statement for people interested in gun control, but it’s targeted at law-abiding citizens.”
City Attorney Jim Nugent issued a legal opinion on Sept. 15, saying the law Rhoades and Marbut refer to also states: “A … local government unit has power to prevent and suppress … the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.”
Based on that, Nugent wrote, the city could move ahead with a law keeping guns away from such people.
“I agree that state legislation requiring background checks would be more effective,” von Lossing said. “But it’s not like this topic isn’t already squarely at the attention of the country and states. Some states have passed statewide legislation. If this helps spur action on the state level that moves us forward, that would make people safer statewide.”
Rhoades said the law would at best be a redundant version of existing state and federal laws and at worst embroil the city in a fight that’s already settled against it.
“There’s no reference (in the proposed law) about convicted felons, adjudicated mental incompetents or illegal aliens,” Rhoades said. “This is aimed at firearms sales, to interfere with or slow down sales. State law says you can’t regulate the purchase or transfer. And if all you have to do is travel five minutes out of town to do a transaction, what is it you’re preventing?”