September 30, 2015
Missoula City Council
435 Ryman
Missoula, MT 59802
Position: Oppose
Re: A Proposed Ordinance requiring background checks on all guns purchased or transferred in
the city
Dear City Council Members:
On behalf of the National Shooting Sports Foundation (“NSSF”), I write to you today to express our
strong opposition to the “Proposed Ordinance” sponsored by council members Bryan von Lossberg,
Marilyn Marler, and Emily Bentley, which would require “criminal background checks on all gun sales
and transfers, with certain exceptions, including for family, hunting, and emergency self-defense.”
As the trade association for America's firearms, ammunition, hunting, and recreational shooting sports
industry, NSSF seeks to promote, protect, and preserve hunting and the shooting sports. NSSF has a
membership of nearly 13,000 manufacturers, distributors, firearms retailers, shooting ranges, and
sportsmen's organizations, including more than 100 members in Montana and 12 members in Missoula
alone. Our manufacturer members make the firearms used by law-abiding Montana sportsmen, the U.S.
military and law enforcement agencies throughout the state.
The Proposed Ordinance is ill-advised and is premised on flawed legal reasoning that will not survive a
legal challenge. The Proposed Ordinance grossly violates state law, which specifically states:
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.
Mont. Code Ann. § 45-8-351(1) (emphasis added).
The legality of the Proposed Ordinance hinges on an improper reading of Code § 45-8-351(2)(a), which
provides: “A county, city, town, consolidated local government, or other local government unit has
power to prevent and suppress . . . the possession of firearms by convicted felons, adjudicated mental
incompetents, illegal aliens, and minors.” Despite the City Attorney’s opinion to the contrary, nothing in
section 45-8-351(2)(a) permits a local government to regulate the purchase sale, or other transfer of
firearms while it exercises its ability to prevent possession of firearms by prohibited persons. Because the
Proposed Ordinance requires all private party transfers to undergo a background check, it additionally has
the likelihood of delaying the “purchase, sale, or other transfer” of firearms prohibited by Section 45-8351(a). If the City Council’s goal with the Proposed Ordinance is to keep prohibited persons from
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September 30, 2015
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possessing firearms, this is already provided for under Montana and federal law, which both prohibit
convicted felons, adjudicated mental incompetents, and illegal aliens from possessing firearms.
Although the doctrine of implied pre-emption is inapplicable to self-governing local governments such as
Missoula, these types of governments may not “perform a function by any means [if] it is prohibited by a
specific statute deliminating the powers of self-government local governments, by constitutional norms,
or by a provision of its charter.” 51 Op. Att’y Gen. 5 (July 13, 2005); see also D & F Sanitation Serv. v.
City of Billings, 713 P.2d 977, 981 (1986). Missoula adopted its self-government charter on June 4, 1996,
effective January 1, 1997. Since that day, Missoula has been subject to limitations on the power it may
exercise. City Attorney Nugent recognized these limitations in his Legal Opinion No. 2014-007, in
which he acknowledges that Section 7-1-111(9) of the Montana Code specifically prohibits a selfgovernment charter government from “exercising any power that applies to or affects the right to keep
and bear arms except that the local government has the power to regulate the carrying of concealed
weapons” (emphasis added). There is nothing implicit in this clear directive by the state legislature. The
limitation on Missoula’s ability to regulate the sale or transfer of firearms is expressly prohibited by state
statute and the Proposed Ordinance could not withstand even the weakest of scrutiny.
In addition to the legal flaws with the Propose Ordinance, there are a number of other flaws in which the
firearms industry takes serious concern with. To begin with, studies have shown that criminals do not
purchase firearms through lawful means. Prohibited persons often acquire firearms by theft, the black
market, and from family members or friends, and many times by straw purchasers who can legally pass a
background check, but give the firearm to someone who cannot. The Proposed Ordinance will not keep
firearms out of the hands of criminals, but will only place a burden on those who are law-abiding.
According to a 2013 survey conducted by the National Shooting Sports Foundation, firearms retailers
overwhelmingly oppose so-called “universal background checks,” similar to the Proposed Ordinance. 1 In
fact, 85.8% of retailers surveyed oppose such checks and more than 95% believe such proposals would
not prevent criminals from obtaining firearms. The obligations and burdens that would be put in place
could be overwhelming for many of those who would be called upon to carry them out. It is unfair to call
upon private companies, many of them quite small and with limited personnel, to conduct what
essentially would be a function of government. In addition to the burden placed on the retailers, they
would also open themselves up to liability exposure (e.g., product liability claims arising from a gun they
did not sell, and for which they may thus have no insurance coverage).
A background check is only as good as the records in the database. That is why the firearms industry
strongly supports improving the current NICS system by increasing the number of prohibiting records
states submit to the FBI databases, helping to prevent illegal transfers of firearms to those who are
prohibited from owning firearms under current law. Including these missing records will help ensure
more accurate and complete background checks. NSSF, on behalf of the firearms industry, was proud to
launch the “FixNICS” campaign in September 2013 to encourage states to report to NICS all records that
establish someone is prohibited from owning a firearm under current law. Through a multi-state effort
focused on forming coalitions in the states with the fewest submitted records, the industry has dedicated
significant resources to helping states overcome the legal, technological, and intrastate coordination
challenges preventing effective record sharing. “Fix NICS” is about keeping firearms out of the hands of
prohibited persons, like the shooter in the Virginia Tech tragedy who was able to purchase a firearm from
a federally licensed firearms retailer because his prohibiting mental health records were not in the NICS
1
National Shooting Sports Foundation, Inc., National Survey: Federally Licensed Firearms Retailers Overwhelmingly Oppose
‘Universal Background Checks’, http://www.nssf.org/factsheets/PDF/OpposeBackgroundChecks.pdf.
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September 30, 2015
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system. Unfortunately, Montana is one of the few states that does not submit mental health records to be
included in the NICS system.
We know these background checks will never be truly “universal” because criminals will not think twice
about skirting the law. Additionally, in order for someone to get around the ordinance, all they must do is
get outside of the Missoula city limits where a private party transfer can occur without a background
check, which could result in reduced business for those Missoula-based FFLs. Finally, and most
significantly, the Proposed Ordinance is littered with significant legal defects, which would undoubtedly
lead to a legal challenge, causing taxpayer money to be used defending the indefensible.
In closing, NSSF respectfully urges you to oppose the misguided Proposed Ordinance requiring
“universal background checks.”
Sincerely,
Lawrence G. Keane
cc: Mayor John Engen