Montana Supreme Court ruling upholds state preemption

A unanimous ruling by the Montana Supreme Court earlier this week overturned an attempt by the Missoula City Council to erode that state’s preemption statute, in a case that could provide lessons to more than one entity in Washington State.


A Missoula, MT ordinance requiring background checks on all firearm transfers was struck down by the Montana Supreme Court because it violates the state preemption law. (Dave Workman photo)

According to the Missoulian, the state high court reversed a local judge’s earlier decision that upheld a 2016 Missoula ordinance requiring background checks on all firearms transfers, which violated the state’s preemption statute.

In 2017, Montana Attorney General Tim Fox voided that ordinance, the newspaper reported, saying the Missoula council lacked the authority to infringe on gun ownership rights in both the state and federal constitutions. The ruling not only reversed the lower court, it remanded the case back to “Missoula County District Court for a judgement in favor of the attorney general,” the newspaper reported.

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Such action by a state attorney general and state Supreme Court would be welcome news for rights activists hundreds of miles to the west, in Washington State. There, not only has Democrat Attorney General Bob Ferguson avoided enforcing the Evergreen State’s 35-year-old preemption statute against Seattle and Edmonds in reaction to those municipalities’ adoption of so-called “safe storage” requirements for gun owners, Washington’s Supreme Court, according to critics, ignored the language in that state’s preemption law and allowed Seattle to adopt a gun and ammunition tax.

Here’s what Montana’s preemption statute says:

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.”

Compare that to the language of Washington State’s model preemption statute:

“The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.”

Instead of defending the preemption statute, Washington’s Supreme Court allowed the Seattle gun tax to remain, and now the City of Tacoma is considering the same tax. Seattle’s crime statistics provide stark evidence that the gun/ammo tax has not had a positive impact on murders.

According to Seattle Police data, in 2016, the first full year that city’s gun tax was collected, there were 18 homicides (down from 24 the previous year). However, in 2017, homicides jumped to 28 for the year, and in 2018, there were 32 slayings. Not all of the murders in any given year were committed with firearms.

Ferguson’s office also has not intervened against the cities from adopting “safe storage” requirements, instead leaving that job to the Second Amendment Foundation and National Rifle Association. They filed separate lawsuits against Seattle and Edmonds. A Seattle judge in King County Superior Court rejected the lawsuit, which is now on appeal.

However, last week a Snohomish County Superior Court judge ruled partly in favor of the SAF/NRA lawsuit, saying the Edmonds ordinance “impermissibly regulates firearms in violation” of the state preemption statute. That case is headed for the Court of Appeals, and both the Seattle and Edmonds cases could wind up before the Washington Supreme Court.

Predictably in Missoula, proponents of the gun control ordinance were an unhappy lot.

According to the Missoulian report, City Council President Bryan Von Lossberg was “deeply saddened.” He was quoted by the newspaper stating, “I have said throughout this process that the background check system saves lives. It’s a proven tool to do that. I was really heartened as I went through carrying this ordinance to learn of several people who use the instant background check system for private transfers.”


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