He Was Convicted of a Felony for Holding a Gun on the Sidewalk in Front of His House
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 Metca
Article from Reason.com
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