Gun-safety debate reaches Montana’s Supreme Court

The politically charged case could give cities the power to curb high rates of gun violence.


Private gun sales in Montana, such as at gun shows, don't require a background check. The city of Missoula is fighting to require checks for most sales.

In August 2003, Mark Grimes sold a Taurus Titanium .41 Magnum handgun in Missoula, Montana, much the way he would sell a bicycle: cash and a handshake. A former range officer at shooting competitions, Grimes wasn’t completely comfortable with the transaction, even though it was legal. “There was a little red light flashing in my brain,” he remembered, “but the green light of getting a good price was more compelling.”

Two years later, a police officer knocked on his door to tell him the gun had been used in a homicide in Denver. “At the time, I thought I didn’t do anything wrong,” Grimes said, “but maybe I did.” Grimes, now a cancer researcher at the University of Montana, couldn’t have known the gun would be used to kill someone. But, he said, he should have taken measures to reduce that possibility.

Now, Grimes is hopeful that the state Supreme Court will uphold the right of Montana cities to require background checks on private gun sales and thereby help prevent future tragedies. But it won’t be easy: Attorney General Tim Fox, a Republican 2020 gubernatorial candidate, argues that local background check regulations violate state law. This summer, the court is expected to issue a ruling that could affect rates of gun violence in the state with the nation’s highest per capita suicide rate and third-highest gun death rate. For Montanans, the decision will also determine where local and state firearms regulations end and the federal right to bear arms begins.

In September 2016, Missoula became the first — and so far, only — Montana city to require background checks on most private gun sales and transfers. Similar measures have reduced gun violence elsewhere: After Connecticut mandated background checks on handgun sales, for example, homicides dropped by 40%, according to a study by Johns Hopkins University. Missoula’s ordinance is grounded in a state law that allows cities to prevent “the possession of firearms by convicted felons … and minors.” But a few months after it passed, Attorney General Fox issued an official opinion asserting that another state law prohibits municipalities from exercising “any power that applies to or affects the right to keep and bear arms,” including background check requirements.

In Montana, unlike many states, such an opinion carries the weight of law. So, a year ago, Missoula challenged Fox in state district court. Grimes and others, though not litigants in the suit, filed a brief arguing that expanded background checks do not, in fact, infringe on the Second Amendment. In October, District Judge Dusty Deschamps agreed, ruling that the ordinance imposes “a trivial burden” on gun buyers.

The decision was a victory for Missoula, but Fox and other Republican officials refused to concede. In December, Fox appealed to the state Supreme Court. Then, in April, the Republican-controlled Legislature amended the state law that is the basis for Missoula’s ordinance. On May 3, however, Gov. Steve Bullock, a Democrat and 2020 presidential candidate, vetoed that bill, noting that Montana towns have been regulating firearms since at least 1885.

Now, the state Supreme Court appears to be the final hurdle for the ordinance. In a recent brief, Fox wrote that Judge Deschamps’ decision fails to “harmonize” conflicting firearms laws and empowers cities to curtail the Second Amendment. “A matter so constitutionally and culturally significant,” he argued, “cannot so easily be swept aside by a hodgepodge of local regulations.” The city is expected to counter that while state law generally prohibits local gun regulations it also provides a clear exception for measures — like background checks — that prevent certain individuals from acquiring guns. 

It’s difficult to predict which argument will prevail, said Stacey Gordon Sterling, director of the William J. Jameson Law Library at the University of Montana. Montana law generally favors cities and counties over the state when there is doubt about their authority to pass local regulations, she said. But even if the court upholds Missoula’s ordinance, she predicts the fight will continue.

“It seems that more and more often when a local government does something a legislator doesn't like, there is an attempt to limit local government authority in that area, which the Legislature has the power to do,” she explained. “At that point, it is easy for politics — not principles of local control or democratic government — to prevail, ultimately weakening the powers of local government.”

For Grimes, the fight boils down to data. Once again, he intends to file a brief reminding justices that private gun sales often lead to tragic outcomes. Between 2013 and 2017, for example, nearly 2,000 guns purchased in Montana were recovered after being used in crimes in other states, according to the Giffords Law Center, a national nonprofit focused on preventing gun violence. Those numbers underscore the necessity for background check laws, said Missoula City Councilman Bryan von Lossberg, who helped write the city’s ordinance: “We have an opportunity to save lives.”

Gabriel Furshong lives in Helena, Montana, where he writes for Yes! Magazine, The Nation and other publications.  

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