A Montana Case Tests the Constitutionality of the Gun-Free School Zones Act

The law makes it a felony to possess a firearm within 1,000 feet of a school, which covers the sidewalk in front of Gabriel Metcalf's house.

Last summer, Gabriel Metcalf alarmed passersby in Billings, Montana, by "pacing his front lawn holding a rifle." When local police approached him, Metcalf said he was protecting himself from a neighbor he thought was stalking him. The officers conceded that Metcalf was not violating any state laws but asked him to cut it out. Because Metcalf was not inclined to follow their advice, the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) got involved. Noting that Metcalf lived across the street from an elementary school and admitted walking on the sidewalk near his home with the rifle, the ATF charged him with violating the federal Gun-Free School Zones Act.

That law, 18 USC 922(q), makes it a felony, punishable by up to five years in prison, to possess a firearm within 1,000 feet of a school. Since schools are scattered throughout communities across the country, those gun-free zones cover a lot of territory—including the sidewalk outside Metcalf's home. But in seeking dismissal of Metcalf's indictment, his public defender, Russell Hart, argues that his conduct is not covered by the statute and, in any case, is protected by the Second Amendment. The latter argument seems promising in light of New York State Rifle & Pistol Association v. Bruen, the 2022 decision in which the U.S. Supreme Court upheld the right to publicly carry firearms for self-defense.

In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its power to regulate interstate commerce when it passed the original version of the Gun-Free School Zones Act in 1990. "The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce," Chief Justice William Rehnquist noted in the majority opinion. Congress responded in 1995 by amending the law to specify that it applies only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce"—boilerplate that had no practical effect on the statute's broad reach.

The law includes several exceptions. It does not cover unloaded guns kept in "a locked container" or "a locked firearms rack that is on a motor vehicle." It does not apply to guns "on private property" that is "not part of school grounds." And it does not allow prosecution "if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license."

Hart cites that last exception in arguing that Metcalf's conduct did not violate the law. In 1995, apparently in response to the Supreme Court's pending decision in Lopez, Montana legislators passed a law that banned possession of weapons in school buildings. That law also included a provision aimed at protecting people who carry firearms elsewhere in a federally defined school zone. "In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution," it says, "a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act."

Since Metcalf fits that description, Hart argues, he qualifies for the exception. No way, says Assistant U.S. Attorney Thomas Godfrey. Because Montana's law specifies criteria for carrying a gun in a school zone but "does not require that law enforcement authorities of the state verify that the individual meets those qualifications before obtaining a license," Godfrey argues, "the Montana provision does not meet the federal requirements for the exemption to apply," so "Metcalf's firearm possession was not exempted."

Not so fast, Hart says in his reply. In the 2000 case United States v. Tait, he notes, the U.S. Court of Appeals for the 11th Circuit rejected a similar argument. The defendant, who was charged with the same crime as Metcalf, had an Alabama pistol license. The government said that license did not count under the Gun-Free School Zones Act because Alabama did not require local licensing authorities to conduct a background check.

"While the Alabama law is extremely lenient, it is nonetheless the only pertinent law," the 11th Circuit said. "Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies. Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements when it established 'qualified under law' as its criterion for the exception to the Gun-Free School Zone Act."

When Congress passed the law, Hart notes, it "suddenly created a federal jurisdiction that wove itself seamlessly throughout communities across the United States, carrying a criminal penalty for violating the ban." In doing so, he says, "it completely punted to the states the issue of protecting [their] law-abiding citizens from federal prosecution for exercising a constitutional right within the statutorily created 'Gun Free Zone.' The United States now prosecutes Mr. Metcalf on the theory that Montana's law, after almost 30 years on the books, was never good enough to protect him. If the Government is correct, a sizable majority of Montana gun owners have likely violated [the Gun-Free School Zones Act] at some point in the last 33 years."

Hart elaborates on the implications of that position. "One needs only to look around the community to understand the law has never been enforced like this," he writes. "For many years after the [Gun-Free School Zones Act] was passed, Gart Sports—a federally licensed firearm dealer—sat directly across 24th Street West from Billings West High School. Currently, within 1,000 feet of Washington Elementary School in Billings is an indoor shooting range."

If Montana's protective provision "is indeed invalid as the Government asserts," Hart says, "everyone who patronizes that establishment violates the [federal law] with every visit" by possessing an unlocked firearm in a school zone. "Similar examples no doubt exist across the state and the country," he writes. "For the United States to have punted this issue to the states in 1995 and then argue in 2023 that Montana's 28-year-old law never offered any protection is precisely how well-intentioned legislation can turn into exactly what its opponents initially cautioned against."

That situation, Hart argues, is inconsistent with Bruen. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote for the majority in that case. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

Godfrey argues that Metcalf's conduct is not covered by "the Second Amendment's plain text" because there is a long history, ratified by the Supreme Court, of restricting gun possession in "sensitive places," including schools. But as Hart notes, that observation is not relevant to this part of the Bruen test. Metcalf "armed himself in response to numerous threats he'd received from a neighbor," Hart says. "The location of the school proximate to his house was incidental: he sought to arm himself in and within the immediate proximity of the home he was trying to protect."

Metcalf, in other words, was carrying a gun for self-defense, conduct that is "presumptively" protected by the Second Amendment. That shifts the burden of proof to the government, which must demonstrate that prohibiting Metcalf's conduct is "consistent with the Nation's historical tradition of firearm regulation."

Godfrey tries to do that, citing 17th-century policies at Harvard and Yale that prohibited students from possessing guns on campus, along with similar policies adopted by the University of Virginia in 1810, the University of Georgia in 1824, and the University of North Carolina in 1838. As Hart notes, the first two examples, which long preceded the Second Amendment, were bans adopted by private institutions rather than statutory restrictions, and all of these policies were limited to students on school grounds.

Godfrey also cites several state laws enacted in the late 19th century. An 1871 Texas law banned firearms in "any school room, or other place where persons are assembled for amusement or for educational or scientific purposes." An 1878 Mississippi law barred students from carrying concealed weapons. An 1879 Missouri law prohibited the discharge of firearms "in the immediate vicinity of any court house, church or building used for school or college purposes." Four years later, Missouri banned firearms in "any school room or place where people are assembled for educational, literary or social purposes." A similar 1889 Arizona law covered "any school room or other place where persons are assembled for public worship, for amusement, or for educational or scientific purposes." Oklahoma and Montana copied Arizona's language in 1890 and 1903, respectively.

The Second Amendment was ratified in 1791, and the 14th Amendment, which required states to respect the right to keep and bear arms, was ratified in 1868. It is therefore not clear to what extent laws enacted in the late 19th or early 20th century illuminate the original understanding of that right. But leaving that question aside, are these laws "relevantly similar" to a statute that bans firearms not just in "any school room" but also within 1,000 feet of school grounds?

Hart thinks not. The law that comes closest to such a rule, he notes, is the 1879 Missouri statute, which applied in "the immediate vicinity" of school buildings. But that law, unlike the Gun-Free School Zones Act, did not ban possession of guns; it said people were not allowed to fire guns near schools.

The Supreme Court has repeatedly recognized schools as "sensitive places" where the government can, consistent with the Second Amendment, prohibit possession of firearms, and Metcalf does not contest that point. The question is whether that means the government is also free to ban guns in public places that are not schools but happen to fall within myriad statutorily defined "school zones" across the country.

Contrary to what Godfrey claims, Hart says, "it is not at all 'settled' that the area within 1,000 feet of each of America's 128,930 public schools is a 'sensitive place.'" Although "the Government worked hard in its Response to disregard the distinction," he writes, "the 'historical analogues' cited by the Government…emphasize the difference: the laws restricting possession of firearms in schools, at ratification, did not typically extend beyond the school building and bore little resemblance to [the Gun-Free School Zones Act]. The Government's argument would have the Court expand the 'sensitive places' doctrine into a place that has not traditionally been seen as constitutionally 'sensitive.'"

Although Hart understandably does not delve into the issue, the government questions the rationality of the fears that motivated Metcalf's yard patrols. It is true that he and his mother, with whom he lives, had an ongoing dispute with their neighbor. It is also true that Metcalf's mother obtained a protective court order against the neighbor, who, according to Hart, faces a "pending trial in Yellowstone County" for allegedly violating that order. But Godfrey says Metcalf's explanation of his situation included statements that "made law enforcement concerned about his mental stability."

According to an affidavit from ATF Task Force Officer Dustin Stroble, Metcalf "stated that he stands watch during the night and gets just a few hours of sleep in the morning. He said the first thing he does when he leaves his front door is to sweep his property for anyone lying in wait and to make sure no one has left incendiary devices and explosives around the house." He also reportedly complained that "his property [was] being 'bombarded' with chemicals."

Still, while Metcalf's behavior may have alarmed bystanders, he never actually threatened anyone or otherwise violated state law. The government concedes that his patrols were perfectly legal insofar as they were confined to his property, although it says he committed a felony when he crossed that line. And although the proximity of the elementary school is the sole basis for the criminal case against Metcalf, Hart notes that Metcalf allegedly "committed his offense between August 12 and August 17, 2023," before the school year started. Hart also notes "there is no evidence Mr. Metcalf carried the firearm outside of the house or his yard" after his conversation with Stroble.

Whatever you make of Metcalf's conduct, it violated no one's rights and allegedly constituted a crime only because Congress decided it could decree where people may carry firearms within cities throughout the country under the guise of regulating interstate commerce. After Congress amended the law by adding the reference to interstate commerce, that farcical fig leaf passed muster with the U.S. Court of Appeals for the 8th Circuit in 1999 and the U.S. Court of Appeals for the 9th Circuit in 2005. Since the Supreme Court declined to review the latter decision, there is little hope of challenging this overreaching law on Commerce Clause grounds, notwithstanding Lopez. But Bruen suggested another approach, and Metcalf's case will test its viability.