May 23, 2019

Requirement of Background Checks for Private Gun Sales a “Challenge to Constitution”

The city of Missoula, Montana recently passed an ordinance that requires background checks on all private gun sales within the city limits. (Note: I’ve been unable to find the actual text of the ordinance, but here’s some information about it.) Through legal channels, it has been requested that the Montana Attorney General investigate and come up with an opinion as to whether or not this requirement imposed on private gun sales is in conflict with the Second Amendment and the Montana Constitution.

“Knudsen says he has been concerned with Missoula’s proposed ordinance for over a year, and that the issue may come up in the next legislative session.

“The Second amendment and Firearms are a very big deal to me personally and I think that this is an important issue,” Knudsen said. “Any time you start messing with people’s Second Amendment rights, not only under thee Second Amendment to the U.S. Constitution, but also under the Montana Constitution, people have the right to keep and bear arms…when you start messing with that, people get upset. I think there is definitely a possibility that the legislature could do something.”

Fox has already issued the following statement regarding the ordinance.

“Contrary to the opinion of the City Attorney, whom I respect, I believe that Missoula’s proposed gun control ordinance is prohibited by state law and likely violates our constitutional right to keep and bear arms.”“<<<Read More>>>

 

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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.

Source: City of Missoula Proposal to Regulate Private Firearms Sales

Public Hearing, October 19th, 7 PM, Missoula City Hall.

What You Must DoSHOW UP, be heard

Who:  You
What:  Public hearing
Why:  Participation
Where:  Missoula City Hall
When:  10/19; 7PM

More detail:  The Missoula City Council will hold public hearings on three proposed ordinances on the evening of October 19th, including the proposed ordinance to prohibit transfers of firearms inside Missoula city limits unless that transfer is accomplished through a federally licensed dealer, including a federal background check on the buyer.  Proponents say this will “reduce gun violence” and make Missoula safer.

Be prepared to offer comment at the public hearing.  This means going to the microphone during the public comments portion of the process.<<<Read More>>>

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Missoula Shooting Media Circus

You won’t be surprised to hear that there’s been a high demand by news/entertainment media for comment, spurred by the recent shooting incident in Missoula.

I have not been able to comment about that incident, but I have tried to make myself available to the media for comment concerning Montana gun laws and our Montana gun culture. I hope to inject some more rational thought into this media fest to avoid all the media misinformation that came out surrounding the Treyvon Martin/George Zimmerman incident in Florida (e.g., “stand your ground” was never involved there).

I’ve just finished an hour-long interview with CNN this afternoon. They say their segment should air Tuesday (5/13). Since I don’t a TV set, I’ll depend on you folks to tell me if CNN treated me fairly, and if I was lucid talking to the camera (I never know when I’m talking if I’m coming across well).

In addition, I have done a half-hour segment with an international radio network. I did an interview with and was mentioned in the New York Times. I was interviewed for several hours by the German magazine Stern, which has a circulation of nine million in Europe. I did a two hour interview with a newspaper chain headquartered in Frankfurt, Germany. I did a two-day interview with a German TV network from Berlin that reaches all of Germany and Austria and Switzerland. I was requested to write an OpEd for the Great Falls Tribune and I had a letter published in the Missoulian. I should be on Missoula’s TalkBack on KGVO radio on next Tuesday (5/20) for an hour talking about Montana gun laws. And, I’m probably forgetting some.

My general themes have been:

1) Montana and Montana people have a long tradition, culture and heritage of owning and using firearms for legitimate purposes. Our culture is suitable for Montana people. We don’t ask people in other places to change their culture to please us and we’d appreciate the same consideration from them.

2) Before any rush to judgement about the propriety of Montana gun laws, and concerns arising our of the recent Missoula incident, we need to let the justice system do its job. Until the justice system has completed its job, it is not possible to say responsibly that something is broken and needs to be fixed.

3) Finally, I’ve found it very difficult to get the media to correct the misunderstanding and assertion that MSSA and I created the “castle doctrine” in Montana with HB 228 in 2009.

Because of item #3, I’ve done a bunch of research into the castle doctrine concept. You will be interested in what I’ve learned. The earliest reported legal case I’ve found that was decided according to the castle doctrine was in 1330, AD. So, the castle doctrine concept is AT LEAST seven centuries old. The first mention of the concept I can find in Montana law was in the Revised Montana Statutes of 1879, during Montana’s territorial days – before statehood. So, the castle doctrine was not something MSSA and I created in 2009 with our HB 228, which we called our “Self Defense bill,” although we did tweak it just a bit.

If you want to know about that tweak, the 1879 language, still in the law in 2008 (“Defense of an occupied structure.” at 45-3-105, M.C.A.) said that a person could not avail themselves of the benefit of the castle doctrine unless the intruder entered in a “riotous or tumultuous manner.” There were two problems with that language:

First, if an assailant snuck quietly into your home and woke you in the night with a knife held quietly at your throat, you couldn’t utilize any castle doctrine in self defense – no entry in a “riotous or tumultuous manner.”

Second, the words “riotous” and “tumultuous” are not words of legal art. That is, they are not specifically defined anywhere in the law, so what they mean is in the eye of the beholder. They could mean a wide variety of things. Laws that a common, ordinary person cannot understand and rely on are simply bad laws. You and I need to be able to know what conduct is permissible, and what conduct is prohibited.

So, with HB 228 we struck these words from the law so you and other citizens could have a reasonable grasp of what the law requires and allows.

Of course, HB 228 was a large bill with lots of moving parts. People who know little about the bill and little about Montana gun laws have been spouting off that the laws need to be changed – maybe that HB 228 needs to be repealed. That they would make these broad statements generically without knowing what specifically they want to change demonstrates their ignorance of current law. Therefore, they’re just grandstanding or attempting political theatre, or as we say in the gun culture, they’re dancing joyously in the blood of the victim.

Enough of my near rant. Let me know how the CNN story looks.

Best wishes,

Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, Gun Laws of Montana
http://www.MTPublish.com

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