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