The first shot against Missoula's new gun background check ordinance was taken only an hour after city council approved the measure. It came from a Culbertson home some 500 miles away, where Speaker of the House Austin Knudsen was reading Facebook in his pajamas.
"I was literally laying in bed," Knudsen says.
He saw the news while scrolling through his social media feed, and by 11:35 the same night he published a post about it to his campaign page. In doing so, Knudsen set into motion a legal maneuver that gun rights lobbyists expect will prove a quick kill shot to the trailblazing local regulation before it even takes effect.
The ordinance requires background checks for most gun sales and transfers inside Missoula city limits.
Knudsen, in his Sept. 26 Facebook post, pledged to request a formal legal opinion from Attorney General Tim Fox on whether the ordinance comports with Montana law, effectively giving the state's top elected Republican the chance to void Missoula's ordinance with a pen stroke.
Attorney general opinions are a longstanding, if occasionally used, way for public officials to seek guidance on legal questions that have not been addressed by a court, University of Montana law professor Anthony Johnstone says. The opinion carries the weight of law unless later overturned in court, making it a particularly efficient tool. Fox has issued four opinions during his first term.
The attorney general can't issue such opinions unless requested to do so, and only certain public officials are empowered to request them. Attorneys for the city weren't about to solicit gun control guidance from a conservative AG like Fox, but Knudsen says the issue's statewide relevance was grounds for the Eastern Montana Republican and self-described "fervent Second Amendment guy" to get involved.
"I'm concerned about the slippery slope here," he says. "I'm concerned about the camel's nose in the tent."
As Knudsen tells it, he first learned of the then-proposed ordinance last fall while at a Helena function, where a couple of Missoula residents mentioned it to him. "But I honestly don't remember their names," he says. "I'm not even sure what function it was." No one asked Knudsen to use his speaker powers to request an AG opinion, though; he claims the idea was his.
- photo by Amy Donovan
- Gun lobbyist Gary Marbut, above, says he discussed a strategy to oppose Missoula’s gun ordinance with state lawmakers last fall. But Montana Speaker of the House Austin Knudsen, R-Culbertson, claims he approached the attorney general on his own, out of concern the measure could spread to other cities.
"No, this is something I've been keeping an eye on on my own and decided to do on my own volition," Knudsen says.
The state's foremost gun rights lobbyist, however, paints a different picture—one that suggests the effort to undo Missoula's ordinance is more carefully coordinated. Gary Marbut, a Missoula resident and president of the Montana Shooting Sports Association, says he wasn't surprised to hear of Knudsen's involvement because the two had discussed the initial countermeasure many months ago.
No one is more active in Montana gun advocacy and lobbying than Marbut, and his deep ties can prompt swift action by conservative lawmakers. Marbut says Missoula state Rep. Brad Tschida was the person who formally asked Knudsen to request an opinion, since they felt it more appropriate for a local legislator to make the ask than Marbut. (Tschida did not return a call for comment).
"Everybody understood that the plan, the first domino, would be kicked over as soon as city council adopted the ordinance," Marbut says.
With Fox heading the Department of Justice, Marbut is "close to certain" the opinion will land in his favor. After all, Fox's office issued a press release opposing the ordinance when it was introduced almost a year ago. Marbut says he didn't request the attorney general release the original statement but says he was exchanging emails with Fox's staff around that time or shortly after. (The Indy has a pending records request for office communications related to the ordinance.)
Missoula City Councilman Bryan von Lossberg, who sponsored the ordinance, says he anticipated the maneuver and doesn't believe it will doom the measure. Fox could also decline to write an opinion altogether, particularly if his office concludes the issue is destined for litigation either way, notes Johnstone at UM.
Regardless, Marbut sees Knudsen's move as the quickest route to quashing the ordinance. A thrifty one, too.
"Don't you think it makes sense?" he says. "The other alternative is a lawsuit. Attorneys charge by the hour. I don't have thousands of dollars to throw at it."