By Dave Workman
Editor-in-Chief
In a split 2-1 decision, a three judge panel of the Ninth U.S. Circuit Court of Appeals has reversed a federal District court’s denial of a motion to dismiss the indictment of a Montana man for violating the Gun-Free School Zones Act, and remanded the case back to the U.S. District Court with an order to dismiss the indictment.
The case involves Billings, Mont., resident Gabriel Cowan Metcalf’s motion to dismiss his September 2023 indictment for violating the federal law. He argued that the Gun-Free School Zones act exempts individuals who hold a license from their state to carry a firearm, which he possessed.
Complicating matters is the fact that Metcalf resides across the street from a Billings elementary school, with his mother. Metcalf and his mother, according to the ruling, had been victimized by a neighbor who had “repeatedly stalked and threatened Metcalf and his mother. Metcalf’s mother obtained a protection order…from a Montana state court in September 2022.”
In August 2023, before the school year began, Metcalf was repeatedly observed walking along the sidewalk in front of his home, carrying a shotgun. People complained to the Billings police, who contacted Metcalf.
It was only after Metcalf contacted the FBI, and was himself contacted subsequently by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that he was arrested and indicted for violating the School Zones Act. Because he had a state license to carry, and because of other factors including his claim that he had not gotten appropriate notice to be convicted and that his Second Amendment rights were violated, Metcalf moved to have the indictment dismissed, which the District Court declined to do.
Since then, the man who had been harassing and threatening Metcalf and his mother was convicted of violating the protection order.
The Ninth Circuit panel disagreed with the District court and ruled that the indictment “must be dismissed.” The appeals court panel noted, however, “Because we conclude that Metcalf’s appeal is resolved by virtue of the absence of fair notice, we do not address Metcalf’s second argument—that his conviction under the Gun-Free School Zones Act violates his Second Amendment rights.”
The majority opinion was authored by Appeals Court Judge Lawrence VanDyke, a Donald Trump appointee, with concurrence from Judge John B. Owen, a Barack Obama appointee. Chief Judge Mary M. Schroeder, a Jimmy Carter appointee, dissented.
Writing for the court, Judge VanDyke noted, “The Gun-Free School Zones Act excepts from the Act’s broad prohibition individuals who hold a license by their state, if ‘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.’”
Later, the judge wrote, “The Gun-Free School Zones Act broadly prohibits the knowing possession of any firearm within 1,000 feet of a public, private, or parochial, primary or secondary school.
See 18 U.S.C. §§ 921(a)(26)–(27), 922(q)(2)(A). This prohibition ‘does not apply to the possession of a firearm,’ however: 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. § 922(q)(2)(B)(ii).
“The parties do not dispute that Metcalf was licensed by the state of Montana to possess a firearm in a school zone,” Judge VanDyke notes. “Montana Code section 45-8-360 provides that: 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, 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.”
Metcalf led guilty, reserving the right to appeal the denial of his motion to dismiss. This ruling is the result of that appeal.
