December 4, 2023
How "Safe" Are You? The House of Cards That is Gun Free Zones, iStock-490657417
Montana Gun Free School Zone Case: USA v Metcalf, Game On!, iStock-490657417

The Gun Free School Zone Act (GFSZA) has a challenge in federal court; the case is USA v. Metcalf in Montana. It is a full-fledged game on! The case was covered early and in-depth by AmmoLand. It seems such a slam-dunk for the Second Amendment, a major question was: would the United States Attorney for Montana see the case as a loser and, rather than risk a major Second Amendment win, simply dismiss the case?

AmmoLand was one of the first to cover the USA v Metcalf case. AmmoLand coverage has been far better than any other outlet. Russel A. Hart is the Assistant Federal Defender in the Billings Branch Office. He is representing Gabriel Metcalf. He filed a motion to dismiss the indictment against Gabriel Metcalf, then filed the brief in support of the motion to dismiss. The Brief was filed on October 10, 2023.

The USA filed its response on October 24. They are proceeding with the GFSZA case.

The defense of Gabriel Metcalf is premised on two major points. First is the defense established under Montana law, which creates an exemption from the GRSZA in Montana for all who can legally own firearms. From the brief by Hart:

Montana has (1) verified that any individual who is not prohibited under the laws of Montana or who has not been convicted ofa violent felony crime is qualified to receive a license to carry a firearm within a school zone, (2) enacted legislation granting such a license to all verified individuals, (3) explicitly stated that this license applies for purposes of “the federal Gun-Free School Zones Act”, and (4) enacted separate legislation that goes farther than §922(q) could under its Commerce Clause authority, prohibiting the possession of any type of“weapon”, including a firearm,but only within the school building itself.

If Mr. Metcalf stepped from his property onto the public sidewalks while carrying a firearm as the Government alleges, he was licensed to do by the State of Montana at the time, the prohibition of §922(q)(2)(A) does not apply to him, and the Indictment must be dismissed.

As expected, Assistant United States Attorney (AUSA) Godfrey claims the Montana law is not sufficient. From the brief by Godfrey:

The Montana law that Metcalf relies upon, Mont. Code Ann. § 45-8-360, includes express qualifications for a person to be “considered to be individually licensed” for purposes of the exceptions to the Gun-Free School Zones Act: excluding individuals (1) convicted of a violent, felony crime,” or (2) otherwise not “able to own or to possess a firearm under the Montana constitution.” The statute, however, does not require that law enforcement authorities of the state verify that the individual meets those qualifications before obtaining a license. Because the Montana provision does not meet the federal requirements for the exemption to apply, Metcalf’s firearm possession was not exempted.

Next is the basic Second Amendment defense under Heller and Bruen. The GFSZA is unconstitutional on its face. From the brief by Hart:

When it comes to firearms carried for purposes of self-defense outside the home,922(q) contains an identical ban to the one flatly struck down in Heller when applied to firearms stored inside the home.In Bruen,the Court ruled that regulations concerning firearms carried outside the home must be held to the Heller standard while unequivocally rejecting the application of any “means-end”scrutiny to justify the regulation. Bruen, at 2129. The ban prohibiting possession of a functional firearm within 1,000 feet of a school’s “grounds” in §922(q)(2)(A) prevents a citizen from using it for self-defense if confrontation happens outside their home. On its face,§922(q) is impossible to square with the Second Amendment in the post-means-end scrutiny era of Heller and Bruen.

AUSA Godfrey claims the Second Amendment does not apply for two reasons. He claims schools are exempted from the Second Amendment. He claims there is historical evidence bans on firearms existed on public universities when the Second Amendment was ratified, and there were late 19th century regulations on firearms near schools. Here are two relevant excerpts:

His claim under the Second Amendment fails for two reasons, either of which is sufficient to deny relief. First, the Second Amendment does not protect Metcalf’s “course of conduct.” Bruen, 142 S. Ct. at 2134. The Supreme Court has repeatedly made clear that the government may prohibit “the carrying of firearms in sensitive places such as schools and government buildings.”

The Founding generation heavily regulated firearms on the campus of public universities. And starting in the latter half of the 19th century, some States heavily regulated firearms in and near schools. In some ways the restrictions were narrower than Section 922(q)(2). But in other ways they were broader, and there was no apparent dispute about their constitutionality. Further, under Bruen, a modern-day restriction need not be a “dead ringer for historical precursors.” Id. at 2133. It need only be “relevantly similar” to the precursors in “how” and “why” it burdens the “right to armed self-defense.” Id. at 2132-2133. Section 922(q)(2) passes that test.

The Metcalf case is an excellent test case. Gabriel Metcalf has a clean record. He lives across the street from the school in question. He had valid reasons to carry a firearm for purposes of defense of himself and his mother.

While Federal Defender Hart is doing a high-quality job in the legal defense of Gabriel Metcalf in the GFSZA case, the burdens on the Metcalf family are considerable. The City of Billings found a three-year-old warrant about a confrontation where Gabriel defended his mother. On the initial appearance before a local judge, Gabriel was required to wear an ankle GPS monitor at a cost of about $300 a month. The local public defender is not Russel Hart. From Gabriel’s mother, contact before the court a few days ago consisted of a few minutes. No attempt was made to ask for the removal of the GPS monitor. The attitude of the public defender verged on hostile.

The family needs funds to hire an attorney, preferably one who is not dependent on the “good old boy” network inside of Billings for their subsistence.  Vivian Metcalf has set up a GiveSendGo account, the YoungMetcalfHomeDefenseFund.

The advantage the Biden administration, represented by AUSA Godfrey, has is this case falls under the jurisdiction of the Ninth Circuit.  If Metcalf prevails in Montana, the case will be appealed to the Ninth Circuit.

The case is clear-cut. There is no historical record for banning guns simply because they are within a thousand feet of a school. The university bans near the time of the ratification of the Bill of Rights were for private institutions. They only applied to students. They only applied to actual school grounds. The single law from late in the 19th century did not ban guns near schools. It banned shooting guns near schools. The Montana law gives a clear exception to the GFSZA, but there is some question about whether it is sufficient under the GFSZA.

Gabriel is out of jail without bond for the GFSZA charge. The City of Billings charge is for a misdemeanor assault charge, about three years old, which seems questionable to this correspondent. It seems likely the GPS ankle bracelet requirement could be revoked if Gabriel receives the benefit of vigorous counsel. The local case may be dismissed if appropriate discovery and full airing of evidence is conducted before a judge.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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