On January 31, 2024, US District Court Judge Susan P. Watters published an opinion on the motion to dismiss the Gun Free School Zone case in Billings Montana. She found the Gun Free School Zone Act to be constitutional.
The case has been covered extensively here on AmmoLand. The person charged, Gabriel Metcalf, had reason to carry a firearm for defense of self and others outside his home in Billings Montana. His home is across the street from an elementary school. The school was not in session while he was carrying outside his home.
Gabriel Metcalf's primary defense consists of two pillars. One is the Gun Free School Zone Act has an exemption for people who are licensed by the state the school is in, to carry firearms. Montana had created a special statute to grant individual licensure to people who could legally own firearms in Montana. Gabriel Metcalf has no criminal record or record of violence. Therefore he was granted and individual license to carry in Montana, specifically for the purpose of the Gun Free School Zone Act.
Judge Watters found the Montana law does not meet the requirements of the GFSZA.
The second pillar is the facial unconstitutionality of the Gun Free School Zone Act (GFSZA). The GFSZA had already been found to be unconstitutional because it exceeded the authority granted the United States Government under the Constitution of the United States. President Clinton and Janet Reno pushed to add 12 words to the law. Five circuits have upheld the law based on those 12 words, three circuits have held the 12 words do not heal the constitutional defect.
The Ninth Circuit is one of the circuits which has held the GFSZA to be within the authority of the federal government under the commerce clause. This finding was before the Heller, McDonald, and Bruen decisions.
In the brief defending Gabriel Metcalf, contending the GFSZA to be unconstitutional, the defense claims the GFSZA does not meet the requirements of the Bruen decision (2022) under the Second Amendment.
Judge Watters has to reach and stretch to find any historical analogs which have any similarity to the GFSZA. She finds the prosecution brief to be inadequate. She creates her own interpretation of the historical record to find an analog.
The laws she cites are one colonial law from the Constitution of Delaware in 1776, which she says forbids firearms within one mile of a poling place for 24 hours before an election and 24 hours after the election had closed. Then she cites three reconstruction and post reconstruction laws which forbid the carrying of weapons close to polling places during elections.
Judge Watters then jumps from the polling place prohibitions to claim buffer zones around schools, which are in effect every day of the year, are close enough of a law to justify the constitutionality of the GFSZA. She relies heavily on claiming "school shootings" are a recent sociological phenomena, which require a new response.
Consequently, Judge Watters finds the restriction of 18 U.S. Code § 922(q)(2)(A) to be constitutional, and the motion to dismiss the case is denied.
Analysis:
This case was always going to be appealed, whichever side Judge Watters decided for. The appeal will go to the Ninth Circuit Court of appeals. It is not known what three judge panel will be given the case. The analogy of buffer zones around polls near election day is very weak. There is only one example from the founding era. It is from the Delaware Constitution from 1776. Judge Watters misstates the example. It does not ban all guns from a buffer zone around polls. It bans battalions or companies, organized and paid for by a state, from being within a mile of the polling place, not individuals. From the Delaware Constitution of 1776, ART. 28:
ART. 28. To prevent any violence or force being used at the said elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day; nor shall any battalion or company give in their votes immediately succeeding each other, if any other voter, who offers to vote, objects thereto; nor shall any battalion or company, in the pay of the continent, or of this or any other State, be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening said elections, nor within twenty-four hours after the same are closed, so as in any manner to impede the freely and conveniently carying on the said election: Provided always, That every elector may, in a peaceable and orderly manner, give in his vote on the said day of election.
The 1776 Constitution of Delaware was replaced by the 1792 Constitution of Delaware. Article 28 (Delaware was at war with the British government in 1776) was not included in the 1792 Constitution. The 1792 Constitution was passed one year after the Second Amendment was ratified in 1791.
The reconstruction bans are all very late, with little weight. In all of them the buffer zone is limited in time to a day or two every couple of years. The idea the citizens of the USA in 1791 would have found a ban on firearms within a thousand feet of all schools to be acceptable, is ludicrous.
This case is an excellent test case to challenge the Gun Free School Zone law. Vivian, Gabriel Metcalf's mother, has set up a GiveSendGo fund to aid in covering their expenses in the case. It has already been very helpful in paying the fees for and to remove the GPS monitor imposed on Gabriel.
©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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