Montana Supreme Court Strikes Down Missoula Gun Control Scheme

Montana has a strong preemption law to protect the right to keep and bear arms in Montana, and to maintain uniform firearms laws across the state. It is straightforward and easy to understand. From mt.gov:

45-8-351. Restriction on local government regulation of firearms. (1) Except as provided in subsection (2), a county, city, town, consolidated local government, or other local government unit may not prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun.

There are two exceptions to the law: 

     (2) (a) For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns. A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school, and the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors.

Missoula is home to the University of Montana. It represents the far left politics in the state.  In Missoula, in 2018, the Democrat candidate for Senate received 41,688 votes. The Republican candidate received 18,631 votes, about 31%. Statewide, the Republican candidate received 46%.

 In 2016, the City of Missoula passed an ordinace to require private sales of firearms to be approved by the government. As I wrote in 2016:

Last year the City Attorney claimed that a background check law was exempted under paragraph 2, that allows a city to prohibit possession "by convicted felons, adjudicated mental incompetents, illegal aliens, and minors".  

But the law does not prohibit possession.  It requires private purchasers to submit to a background check, directly regulating the sale of firearms. The ordinance claims it has the authority to "prevent and suppress" possession of firearms by prohibited possessors. From the ordinance(pdf):

9.60.010 Purpose and Intent.
This ordinance is adopted pursuant to the statutorypowers explicitly granted to Montana local governments pursuant to subsection 45-8-351(2) MCA for public safety purposes to prevent and suppress the possession of firearms by convicted felons, adjudicated mental incompetents illegal aliens, and minors in order to ensure that background checks generally occur with respect to firearm ownership transfers as a prevention mechanism to serve as a deterrent to convicted felons, adjudicated mental incompetents illegal aliens and minors unlawfully obtaining possession of firearms.

The State Attorney General wrote an opinion that the ordinance violated the preemption law.  The City passed it anyway. It was challenged in court. In an amazing display of judicial activism, the District Court Judge,  Robert Deschamps, proclaimed the law to be acceptable.

The law was appealed to the Supreme Court, which found it to be in violation of the preemption ordinance. From the opinion:

As the Attorney General notes, the District Court’s interpretation of the exception in subsection(2) is overbroad. As the Ordinance offers, its background check requirements for firearm transactions is intended to be a “prevention mechanism to serve as a deterrent” to the possession of firearms. City of Missoula, Mont., Municipal Code §9.60.010 (2016). Under such a rationale, virtually any kind of regulation could be justified as being a “deterrent” to possessing firearms and would permit the exception within subsection(2) to swallow the rule in subsection(1), an absurd result. Harmonizing and reading the statute holistically does not permit such a rendering. Statutory interpretation cannot divest the authority of other provisions, or render other provisions, superfluous. Hendershott v. Westphal, 2011MT 73, ¶20, 360Mont. 66, 253P.3d 806; see also Mont. Trout Unlimited v. Mont. Dep’t of Nat. Res. & Conservation, 2006MT 72, ¶23, 331Mont. 483, 133P.3d 224. This proper reading of §45-8-351, MCA, is also consistent with §7-1-111(9), MCA.¶23As the District Court noted, the powers of self-governing local governments must be liberally construed, but this presumption cannot override specific legislative preemption, as here. See City of Missoula v. Franklin, 2018MT 218, ¶¶13-15, 392Mont. 440, 425P.3d 1285; § 7-1-106, MCA. The express statutory prohibition upon cities in § 45-8-351(1), MCA,is a limitation on Missoula’s self-governing powers.¶24The judgment entered by the District Court is reversed. We remand this matter for entry of judgment in favor of the Attorney General.

One of the results of the power grab by the City of Missoula was a referendum referral to  the people to remove the power of municipalities and other local governments to regulate firearms. The referendum is LR-130. It will be on the ballot in 2020. From ballotpedia.org:

The Montana Code Annotated (MCA) Section 7-1-111 provides that local governments have the power to regulate the carrying of concealed weapons. LR-130 would remove that authorization. The measure would also remove the authority that local governments currently have to "prevent and suppress ... the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors." It would state that it is the policy of Montana "that the citizens of the state should be aware of, understand, and comply with any restrictions on the right to keep or bear arms ... and that to minimize confusion the legislature withholds from local governments the power to restrict or regulate the possession of firearms." If approved by voters, the amendment would take effect January 1, 2021

The referendum is likely to be passed by the voters. Missoula's power grab  may boomerang on them.

Montana has repeatedly passed Constitutional Carry, only to have it vetoed, twice, by Democrat governor Bullock.  Bullock will not be able to run for Governor in 2020, because of term limits. Democrats will have held the governorship in Montana for 16 years.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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