He Was Convicted of a Felony for Holding a Gun on the Sidewalk in Front of His House
Gabriel Metcalf argues that his prosecution under the Gun-Free School Zones Act violated his constitutional right to keep and bear arms.
In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its power to regulate interstate commerce by making it a felony to possess a gun within 1,000 feet of a primary or secondary school. Congress responded by amending the Gun-Free School Zones Act so that it applied only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce."
Although nothing of substance had changed, federal appeals courts deemed that supposed limitation sufficient to address the Supreme Court's concern about "convert[ing] congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Congress, in short, initially forgot that it was supposed to be regulating "interstate or foreign commerce." But after the Supreme Court reminded it, the invocation of that phrase supposedly was enough to fix the law.
While the Gun-Free School Zones Act ultimately survived that Commerce Clause challenge, it may not do so well under the Second Amendment as the Supreme Court has interpreted it. Those decisions, Gabriel Metcalf argues, make it clear that his prosecution for holding a shotgun while standing on the sidewalk in front of his own house violated his constitutional right to keep and bear arms.
Last year, a federal judge in Montana rejected that argument, even as she noted the vast reach of the Gun-Free School Zones Act, which "covers almost the entirety of every urban location in the United States, including many places that have nothing to do with the closest school." U.S. District Judge Susan Watters conceded that the government had failed to meet its burden of showing that the law is "consistent with this Nation's historical tradition of firearm regulation," as required by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen. But instead of stopping there, as Bruen seems to require, she upheld Metcalf's prosecution by embarking on her own historical analysis.
That analysis, Metcalf argues in a brief he recently filed with the U.S. Court of Appeals for the 9th Circuit, fell short of Bruen's requirements. He also argues that Watters erred by rejecting his claim that his conduct is covered by an exception to the Gun-Free School Zones Act.
Metcalf lives with his mother in Billings, Montana, across the street from Broadwater Elementary School. But his decision to carry a shotgun in front of the house had nothing to do with the school, which was not even in session at the time. Metcalf says he armed himself in response to threats from a neighbor, David Carpenter, against whom his mother had obtained a protection order.
After that order was served, Metcalf's brief says, Carpenter "drove through the alley behind Mr. Metcalf's house, yelled at him, and eventually deployed a can of pepper spray in his face despite having been ordered to stay at least 1,500 feet from Mr. Metcalf and his residence." Metcalf and his mother "provided law enforcement with approximately 20 videos showing Carpenter either 'near or driving by the protected property.'" Carpenter recently pleaded guilty to committing a state felony by repeatedly violating the protection order.
To protect himself and his mother against Carpenter, Metcalf says, he "began carrying [his shotgun] with him when he left the interior of his home and would carry it with him when he performed chores in the yard." On August 2, 2023, that exercise of the right to armed self-defense provoked a 911 call about "a male pacing in front of his house with a rifle," which in turn resulted in police surveillance and visits by local cops. The officers "spoke with [Metcalf] nearly every day," urging him to stop carrying the shotgun outside his house while conceding that he was doing nothing illegal.
Confused by those conversations, Metcalf contacted the FBI, complaining that he was being harassed by local police even though he was not breaking the law. That resulted in an August 17 telephone conversation with two agents from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The ATF agents conceded that carrying a gun in your own yard does not violate the Gun-Free School Zones Act, which makes an exception for firearm possession "on private property not part of school grounds." But they said Metcalf had committed a felony punishable by hefty fines and up to five years in prison each time he stepped onto the sidewalk in front of his house while holding the shotgun.
According to Metcalf's brief, he "was not alleged to have threatened anyone with the firearm nor to have done anything unsafe with it." Nor was it alleged that Metcalf "was ever seen with a firearm again" after his conversation with the ATF agents, which he says was the first time he was told that standing on the sidewalk while armed ran afoul of federal law. He was nevertheless indicted for violating the Gun-Free School Zones Act. He pleaded guilty while reserving his right to appeal his conviction and was sentenced to three years of probation. That felony conviction also meant that he permanently lost his gun rights.
In addition to his constitutional claim, Metcalf cites a provision of the Gun-Free School Zones Act that allows people to possess firearms within a school zone if they are "licensed to do so by the State in which the school zone is located," provided that "the law enforcement authorities of the State…verify that the individual is qualified under law to receive the license." In Montana, anyone who is legally qualified to possess a firearm is allowed to do so in public, and state law explicitly says such gun owners are "considered to be individually licensed and verified by the state of Montana within the meaning of" the Gun-Free School Zones Act.
As Watters saw it, that was not good enough to meet the federal law's requirements because state officials do not "verify" that any given person meets the criteria to own a gun (meaning, among other things, that they do not have a disqualifying criminal or psychiatric record). Instead, Montanans are generally allowed to carry guns in public, and they are subject to prosecution only if it turns out they are legally disqualified. Although there is not much case law on this question, Metcalf argues that the Gun-Free School Zones Act leaves states with broad discretion to decide who counts as "licensed."
After disposing of the statutory issue, Watters addressed the question of whether Metcalf's prosecution was consistent with the Second Amendment, which according to Bruen generally protects the right to carry guns for self-defense outside the home. Under Bruen, any exceptions to that general rule have to be grounded in historical tradition, which requires the government to identify "relevantly similar" analogs to a contemporary restriction.
In this case, Watters acknowledged, the government had failed to do that. The Supreme Court has said schools themselves qualify as "sensitive places" where guns can be banned without violating the Second Amendment, and the historical statutes cited by the government supported that conclusion. But that does not necessarily mean a buffer zone extending 1,000 feet in every direction from school grounds is also a "sensitive place," and none of the laws that the government cited had such a broad effect.
After concluding that the government failed to make the case that Bruen requires, Watters tried to fill the gap. She ultimately ruled that early laws prohibiting gun possession near polling places on or around election day sufficed to meet the Bruen test.
In Metcalf's appeal, his attorney, Russell Hart, argues that such laws are not "relevantly similar" to the Gun-Free School Zones Act. According to the Supreme Court, that determination requires considering both the motivation for a gun regulation (the "why") and the extent of the burden it imposes (the "how"). Hart says the Gun-Free School Zones Act fails on the latter point.
"The legislative bodies [that] enacted the early election laws appear to have seen importance in avoiding disruption to the election process and determined it was appropriate to place restrictions against the carrying of firearms near people who were in the process of exercising that right," Hart writes. In enacting the Gun-Free School Zones Act, he says, Congress "similarly" sought to avoid "disruption to the education process via gun violence" by prohibiting firearms "near facilities where the Nation's youth were tasked with obtaining their education." But "when it comes to the 'how' question," Hart adds, the Gun-Free School Zones Act "burdens the right of law-abiding citizens to bear arms in ways unlike anything that existed at the founding."
As applied to Metcalf, Hart notes, the law "serves as a complete ban on the right of all law-abiding persons to leave their home with a functioning firearm for the purpose of self-defense if the egress to their private property lies within 1,000 feet of any school's grounds." That's because a gun owner, unless he is deemed "licensed," may transport a firearm through a school zone only if it is both "not loaded" and "in a locked container."
Unlike the laws regarding polling places, which applied only when people were voting, the Gun-Free School Zones Act "is in effect at all times"—even when, as in this case, school is not in session. The law "applies every day, everywhere, and it applies regardless of whether a person's possession of a firearm has any relationship to a school aside from the 1,000-foot distance," Hart writes. "A ban on the possession of all firearms as comprehensive as the Gun Free School Zones Act was inconceivable at the founding. Even if it had occurred to the founding generation to enact a ban on the possession of any firearm within 1,000 feet of any school, school buildings were not interwoven throughout communities across the United States as they are today."
Hart elaborates on that last point, noting that "there were roughly 128,930 public and private prekindergarten, elementary, middle, and high schools in the 50 states and the District of Columbia" as of 2020. Those schools "are strategically placed throughout a
community to ensure that citizens have access to them," which explains why the law "covers almost the entirety of every urban location in the United States," as Watters put it. It is therefore "difficult to imagine traveling any distance within most urban settings and not coming within 1,000 feet of a school's grounds," Hart writes. In noting the law's geographic breadth, he says, Watters "effectively recognized that the Act directly impacts the second amendment rights of millions of citizens."
Metcalf's appeal attracted a supportive brief from the California Rifle and Pistol Association and several other gun rights groups. They argue that Watters' analysis is flawed in three ways:
First, it applied the looser standard of the "more nuanced approach" prescribed [by Bruen] for assessing firearms restrictions applied to modern problems, even though there is nothing new about schools or people carrying firearms at or near them. Second, the district court relied on an insufficient number of historical polling place "buffer zone" laws in concluding these laws are a representative analogue of [the Gun-Free School Zones Act], elevating these "outliers" to analogue status in contravention of Bruen. Finally, the reliance on polling place buffer zone laws was flawed; even if polling place buffer zone laws were not outliers, they are not relevantly similar to [the Gun-Free School Zones Act] given the dramatically lesser comparative burden they impose on the Second Amendment right in both temporal and physical size terms.
The Mountain States Legal Foundation is also supporting Metcalf's appeal. It joins him in arguing that Watters failed to properly consider the extent of the burden imposed by the Gun-Free Schools Zones Act. "Polling place firearm restrictions lasted only as long as the voting period (typically a single day), but the school zone restrictions at issue here last indefinitely," the foundation notes. "On top of that, the District Court completely failed to consider the great disparity between the penalties that Metcalf faces under the challenged statute and the minimal penalties in place for violating the polling place restrictions."
It is doubtful that the 9th Circuit, which is not known for defending Second Amendment rights, will be receptive to these arguments. But United States v. Metcalf raises questions that the Supreme Court eventually will have to address, especially given the disagreement among lower courts about what counts as a "sensitive place" that can be treated as a gun-free zone.
More generally, the Supreme Court needs to provide further guidance for courts applying the Bruen test. "Incomplete or improper historical analysis is not analysis and stands in direct defiance of the standards set forth by the Supreme Court," the Mountain States Legal Foundation says. "If a challenged regulation is allowed to be 'relevantly similar' without fully considering…'how' it relates to the historical example's burden on [the] Second Amendment, then the Second Amendment gets treated as a second-class right. And the Supreme Court has made it abundantly clear that the 'Second Amendment is not a second-class right.'"
