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 (GFSZA) to be constitutional.
The case has been covered extensively here on AmmoLand. The person charged, Gabriel Metcalf, had reason to carry a firearm for his own defense and that of 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. First, 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 an 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 by 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, and three circuits have held that 12 words do not heal the constitutional defect.
The Ninth Circuit is one of the circuits that 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. The defense claims the GFSZA does not meet the Bruen decision (2022) requirements under the Second Amendment and is, therefore, unconstitutional.
Judge Watters has to reach and stretch to find any historical analogs similar to the GFSZA. She finds the prosecution brief to be inadequate, so she creates her own interpretation of the historical record to find an analog.
The judge cites one colonial law from the Constitution of Delaware in 1776, which she says forbids firearms within one mile of a polling place for 24 hours before an election and 24 hours after the election had closed. Then, she cites three reconstruction and post-reconstruction laws that 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 that “school shootings” are recent sociological phenomena that 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.
This case would always 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 1792 Constitution of Delaware replaced the 1776 Constitution of Delaware. Delaware was at war with the British government in 1776. Article 28 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 removing the GPS monitor imposed on Gabriel.
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.
