Montanan's Election Day in 2020 will have no shortage of political theater: a governor's race and U.S. House and Senate seats up for grabs, perhaps even a recreational marijuana initiative. But the years-long battle over Missoula's own background check ordinance could turn out to be one of the biggest shows on the ticket.
Since the Missoula City Council passed an ordinance in 2016 requiring background checks on all gun sales in city limits — even between private parties, essentially closing what's been termed the "gun show loophole" — GOP leaders in Montana have nearly exhausted their efforts in the executive, legislative and judicial branches of state government to peel the ordinance back. Now, the decision is in the hands of voters in 2020 by way of a ballot measure titled Legislative Referendum 130, which came about as a reaction to Missoula's ordinance.
Of course, entering the elections arena means interest groups already entangled in the debate, such as the National Rifle Association, don't have to focus their arguments in front of a judge or a legislative committee but can pour money into the airwaves and other venues.
"In light of more of a dialogue on firearms issues on a national level, because of mass shootings across the country, I'd expect this ballot issue could percolate up higher this election than in previous election cycles," said Jeremy Johnson, associate political science professor at Carroll College in Helena. "It's typical for interest groups, well-financed interest groups, to spend money on ballot initiatives, and Montana's relatively cheap to advertise compared to other states."
This week, the two sides of a state Supreme Court case over the ballot measure's language have identified some heavy-hitters getting involved in some of the early rounds of the bout.
Those against the ballot measure's language include the Montana Federation of Public Employees, the Montana League of Cities and Towns, Everytown for Gun Safety Action Fund, the Montana Human Rights Network, Montana School Boards Association and the City of Missoula, all represented in court by former Montana Commissioner of Political Practices Jonathan Motl. The city of Helena also joined the ballot measure's opposition on Friday, the Independent Record reported.
In the other corner, Attorney General Tim Fox and Secretary of State Corey Stapleton, both Republicans, and 50 Republican lawmakers who filed their amicus brief in support of the ballot measure's current language on Friday.
In its current form, LR-130 "generally restricts a county, city, town, consolidated local government, or other local government unit's authority" to regulate carrying firearms. Opponents are specifically hung up on the "other local government" term, arguing that leaving local school districts off the ballot language doesn't give voters a fair look at what they're voting for.
"I think that's something the voters are entitled to know," Lance Melton, who represents the Montana School Boards Association, said on Friday.
Fox, who wrote the ballot measure's current language, wrote in his response this week that the proposal wouldn't affect school board trustees' ability to make rules about guns on campus, but affects a totally different section of state law.
"The bottom line is his opinion is not binding," Melton said. "He can have one of his staffers write this up and say we don't think this applies to school districts. We can find out (down the road), but I don't want my school boards mired in litigation."
The legislators who filed an amicus brief Friday concurred with Fox's argument, further arguing that repealing school district's authority was expressly not part of the plan in crafting the legislation to get the matter on the ballot.
"Open carry of firearms on school grounds is already illegal … absent of school boards of trustees," wrote Missoula attorney Quentin Rhoades, who represents the legislators, in Friday's filing. "LR-130 does nothing to interfere with this current system. (The opposing party's) statement is designed only to fool the electorate and defeat the referendum by misleading voters with a false statement."
Melton made clear Friday the school association does not have a position on the measure, but very much opposes its presentation to voters in its current form.
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State Senate President Scott Sales, R-Bozeman, said Friday the importance of the ballot measure is to see uniformity across the state, not with a mind on keeping guns away from those who shouldn't have them, but in defense of those who are able to carry firearms.
"I think it's just prudent, myself being a law-abiding citizen who happens to have a concealed weapons permit, that we have a set of laws that are congruent across the state," he said. "So we don't get caught in some trap in, say, Missoula."
In total, three different versions of the ballot measure are now on the table: Fox's original ballot language, the opponents' suggested ballot language to include school districts, and another version submitted Friday by the GOP lawmakers, in case the Supreme Court decides Fox's language is insufficient. The most recent version is explicit: the measure, if passed, would not affect schools.
Melton is not convinced, no matter what compromise has been offered to the language from the opposing legal party. But having the Supreme Court decide?
"Well, then at least we've got a binding opinion from the highest court in the state," Melton said.
It's worth noting that group of 50 lawmakers who joined the Supreme Court case this week includes a healthy mix of GOP legislators from the self-described moderate "solutions caucus," as well as hard-line conservative legislators who scolded the moderates during a contentious 2016 Legislature.
Sales said Friday he believes the Second Amendment does transcend those fractures in the GOP.
"If you look at gun control, right to life, property rights, we agree with one another way more than we disagree," he said in a phone interview with the Missoulian Friday. "This is just a perfect example of one of those issues. The members that tend to be a little more moderate, we're in agreement on all these kids of fundamental and constitutional issues."
The first calls against Missoula's city ordinance came from then-State House Speaker Austin Knudsen, R-Culbertson, who urged Fox to consider issuing an opinion on the matter. Fox's subsequent opinion voided the ordinance for violating previous Legislature's decision to restrict local governments' authority over such matters.
The city brought Fox to court and a state District Court judge overturned Fox's opinion, ruling that Missoula does have the authority to enact such measures. Fox, a Republican gubernatorial candidate in 2020, has appealed that case to the Supreme Court. That case is ongoing.
But Republicans didn't wait to see how things would shake out at the Supreme Court, pushing a bill through both state houses to restrict local governments' ability to enact stricter gun control measures to avoid a patchwork of regulations from city to city, or county to county. Gov. Steve Bullock vetoed that bill, which triggered House Bill 357, putting the question straight to Montana voters.
Sales said he's not yet convinced LR-130 will command a great deal of attention when election season gets into full swing, considering the spotlight already on what will likely be a competitive primary governor's election ahead of the general in a presidential election year. Sales points out his own bid for Secretary of State has been relatively quiet in the state's political news.
"I think a lot of these issues are going to be playing second fiddle to a lot of noise at the top end," he said. "I don't know if a person is going to be able to buy TV and radio time, it's going to be so much competition."