Thursday, September 29, 2016

MT: Missoula City Council turns Scofflaw, Violates Gun Preemption

As with most states, Montana has a firearms preemption law to prevent a crazy quilt of firearms laws that would make it impossible to obey the law while traveling though the state.  Many city and county boundaries are not marked. It would be practically impossible to track thousands of different firearms laws.

Montana's preemption statute is a good example.  As a bonus, it is simple to understand. From
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. 
(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. 
(b) Nothing contained in this section allows any government to prohibit the legitimate display of firearms at shows or other public occasions by collectors and others or to prohibit the legitimate transportation of firearms through any jurisdiction, whether in airports or otherwise. 
(c) A local ordinance enacted pursuant to this section may not prohibit a legislative security officer who has been issued a concealed weapon permit from carrying a concealed weapon in the state capitol as provided in 45-8-317.
In an 8-4 vote, the Missoula City Council on Monday passed an ordinance requiring criminal background checks on all private gun sales within city limits, effective in 30 days.

Ward 4 representative Jon Wilkins abstained from the vote, but after hearing a 7-4 roll call from his fellow council members changed his vote to yes, prompting a round of applause from the audience even though the ordinance would have passed with seven in favor.
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. 
I suspect the City Council was well aware that what they were doing was illegal.  They simply did not care.  If they do not care about violating the law, why do they think criminals will?

John Lott does an good job in showing the ineffectiveness and harm caused by the "instant" background check system.  Most of the people who are prevented from obtaining firearms are not legally prohibited.  They simply have names that are close to someone who is prohibited.  The majority of those prevented are blacks and Hispanics, because the majority of felons are blacks and Hispanics with similar names.  From
"In reality, the 'Brady Checks' are quite ineffective in stopping criminals from getting guns," wrote the president of the Crime Prevention Research Center. "There are actually very few hard-core criminals that are stupid enough to even try to buy a gun from a dealer that does a background check."

Lott explains that these 2 million "initial denials" are usually mishaps "because they have a similar name to a felon" a lot like what Americans might deal with if their name is similar to someone else's who is on the "no fly" list.
This is political theater with a serious side.  "Progressives" believe that they may violate the law with impunity, because they believe their intentions are good. In this case they are likely correct. There does not seem to be any penalty for violating the preemption law.  Several states have found that they need to put teeth in the law to gain compliance.  Florida put in penalties that held individual officers and elected officials responsible. The taxpayers will pay the attorney fees used to defend the city from litigation.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch


Anonymous said...

Gibbons v Ogden 1824 translates from federal government to state government as well as state government to local government. If the law is in conflict with the states constitution the local law is void. Since all state laws concerning arms are void because they conflict with the federal law. when local laws conflict with state law they would also be void. some poor sucker will spend thousands of dollars for the first test case. The concept is already settled case law. I hope the test case is a civil rights violation case. The best result would be to sue the individual board members as a group and make them pay damages our of their own pocket. they are not indemnified individually,

Anonymous said...

I would like to see the results of the roll call vote and names of those in the picture. I think I could pick out the one that voted last. seven women and five men. I would bet the women voted for it and all but one of the men voted against it. sorry but it just smells of a gender vote. I think the last vote was an AC DC vote.