The 9th Circuit Overturns a Man's Conviction for Holding a Shotgun on the Sidewalk in Front of His House

The decision, which hinges on an exception to the Gun-Free School Zones Act, does not say whether that law is consistent with the Second Amendment.

A couple of years ago, Gabriel Metcalf was charged with a federal felony because he stepped onto the sidewalk in front of his house in Billings, Montana, while holding a shotgun. Metcalf, who had armed himself because of a dispute with a neighbor who was subject to a restraining order, was not violating state law. But because Metcalf lives across the street from an elementary school, prosecutors in the U.S. Attorney's Office for the District of Montana argued, he had violated the federal Gun-Free School Zones Act (GFSZA).

Metcalf argued that the GFSZA, which bans gun possession on public property within 1,000 feet of a primary or secondary school, violates the Second Amendment right to bear arms. This week the U.S. Court of Appeals for the 9th Circuit sidestepped that issue, instead overturning Metcalf's conviction on the grounds that he arguably qualified for an exception to the GFSZA.

That law exempts anyone who is "licensed" to publicly carry a gun within school zones, provided "law enforcement authorities…verify that the individual is qualified under law to receive the license." But Montana is one of 29 states that allow adults to carry guns without a permit, provided they are not legally disqualified from owning them. Although state legislators explicitly said residents who meet those criteria should be considered "licensed" within the meaning of the GFSZA, federal prosecutors disagreed.

Last year, U.S. District Court Judge Susan Watters sided with the government, saying Metcalf did not qualify as "licensed" under the GFSZA. She also ruled that the statute is constitutional because it is "consistent with this Nation's historial tradition of firearm regulation"—the Second Amendment test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Assoiation v. Bruen.

The 9th Circuit's decision in United States v. Metcalf does not address the latter issue. But two members of the three-judge panel concluded that Watters should have dismissed Metcalf's indictment because his understanding of "licensed" was plausible.

"The parties do not dispute that Metcalf holds a license pursuant to Montana Code section 45-8-360," Judge Lawrence VanDyke, a Donald Trump appointee, notes in an opinion joined by Judge John B. Owens, who was nominated by Barack Obama. "Instead, they dispute whether Montana's procedure for issuing this license complied with the [GFSZA's] requirements."

Based on "the traditional tools of statutory interpretation, Metcalf has offered at least a plausible reading of the exception" for "licensed" gun owners, VanDyke says. "When we factor in the canon of constitutional avoidance and the rule of lenity, Metcalf lacked the appropriate notice to be convicted of violating the Gun-Free School Zones Act. Affirming Metcalf's conviction would be inconsistent with the principles of fair notice and of not punishing innocent conduct."

Metcalf "argued both here and in the district court that he is covered by the state or local license exception because Montana has 'verified that any individual who is not prohibited under the laws of Montana or who has not been convicted of a violent felony crime is qualified to receive a license to carry a firearm within a school zone,'" VanDyke notes. "In response, the government has argued both here and below that the Montana statute 'does not require that law enforcement authorities of the state verify that the individual meets those qualifications before obtaining a license,' so 'the Montana provision does not meet the federal requirements for the exemption to apply' and 'Metcalf's firearms possession was not exempted.'"

Although the latter view is "the better reading of the statute," VanDyke says, "we do not agree that this reading is the only plausible reading or that the statute is unambiguous." The government, he notes, seems to assume that law enforcement agencies can "verify" that someone qualifies for a license only by conducting a background check. Yet "dictionary definitions of 'verify' explain" that the word can also mean "assert, affirm, or confirm, as true or certain."

Under that broader definition, VanDyke writes, "Montana has in some sense 'verif[ied]' that Metcalf is qualified to hold a license by 'assert[ing]' that individuals are deemed to hold a license if they meet certain minimum qualifications. Thus, a subsequent 'licensing process' may not be necessary for the state to 'verify' that an individual is qualified under state law to hold a license."

VanDyke also notes that GFSZA is part of a broader statute that generally "defer[s] to state determinations and state findings when concluding whether the [elements of] federal offenses and exceptions are satisfied." He says "Metcalf's reading of the license exception is consistent with Congress's repeated deference to states' findings and laws" in the surrounding statutory text. And he notes that the Supreme Court has said "federal courts should avoid interfering with state governments' internal decisions under the guise of statutory interpretation" unless Congress has made "a clear statement to the contrary."

The only prior federal appeals court decision addressing the meaning of "licensed" under the GFSZA likewise lends support to Metcalf's reading of the law, VanDyke says. In the 2000 case United States v. Tait, the government argued that an Alabama pistol license did not count under the GSFZA because the state did not require local licensing authorities to conduct a background check. The 11th Circuit rejected that argument.

Although "the Alabama law is extremely lenient," the appeals court said, "it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies." The 11th Circuit concluded that "Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements."

VanDyke argues that siding with Metcalf is also consistent with the constitutional avoidance doctrine, which says courts should strive to avoid constitutional questions unless addressing them is necessary to resolve a case. In this case, he says, "the statute is susceptible to at least two plausible interpretations," one of which raises "serious questions" under the Second Amendment.

VanDyke also invokes the rule of lenity, which urges courts to favor defendants when interpreting ambiguous criminal laws. That rule aims to ensure that people are not convicted unless they had fair notice of conduct that could lead to their arrest and prosecution.

Metcalf "was informed by local authorities that it was permissible for him to be armed and that by possessing his firearm he was not violating the law," VanDyke notes. "Metcalf then initiated a conversation with federal authorities, during which he expressed concerns about his interactions with the local officials and explained 'how he has researched the law pertaining to firearms' and 'went to great lengths to articulate that he follows the law.'"

State law informed Metcalf that he was "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." And "before the district court's decision in this case," VanDyke notes, "there was no court decision that could have put Metcalf on notice that the license the legislature conferred upon him was, in fact, invalid to comply with federal law. Given these facts, we cannot say that Metcalf received the 'fair warning…in language that the common world will understand,' with which the rule of lenity is concerned."

For similar reasons, VanDyke says, Metcalf's prosecution was inconsistent with "the presumption in favor of scienter"—i.e., a culpable state of mind. That presumption, he notes, "reflects the basic principle that 'wrongdoing must be conscious to be criminal.'"

Dissenting Judge Mary Schroeder, a Jimmy Carter appointee, criticizes the majority's "tortured application of lenity and scienter principles." Since "this statute is not ambiguous," she says, the rule of lenity does not apply. She adds that scienter requires nothing more than Metcalf's "knowledge of facts constituting the elements of the crime," as opposed to "knowledge that the conduct violates a criminal statute."

Schroeder says the majority "essentially agrees" with Watters that Metcalf's prosecution was consistent with the Second Amendment. To the contrary, the other two judges explicitly avoided that issue. But they did note that Metcalf's convinction "'raise[s] serious constitutional problems,' or at least 'serious questions,' under the Second Amendment."

The Supreme Court has said schools themselves qualify as "sensitive places" where guns can be banned without violating the Second Amendment. But that does not necessarily mean zones extending a fifth of a mile in every direction from school grounds fall into the same category.

Because schools are scattered throughout communities across the country, those zones cover a lot of territory. In most cities, it would be difficult for someone to travel without traversing one or more of them. The 9th Circuit's resolution of Metcalf's case leaves open the question of whether that situation is consistent with the right to bear arms that the Supreme Court upheld in Bruen.