A Montana man who pled guilty to carrying a firearm within 1,000 feet of a Montana school should never have been indicted to begin with. That's the opinion of a three-judge panel on the Ninth Circuit Court of Appeals, though the decision is based largely on technical grounds and not a Second Amendment challenge.
Billings, Montana resident Gabriel Cowan Metcalf lives across the street from an elementary school. In August 2023, Metcalf "patrolled outside his home with a shotgun", according to the court, including on the sidewalk in front of his home. School was not in session at the time, and Metcalf has said he was standing guard and bearing arms in order to protect both himself and his mom from a former neighbor who had been harrassing them. While police in Billings received multiple complaints about Metcalf, the panel said officers told him that he was complying with state law.
Only after Metcalf reached out to the FBI was he indicted for violating the Gun-Free School Zones Act, which prohibits possessing firearms within 1,000 feet of a school.
Metcalf moved to dismiss the indictment against him on statutory and constitutional grounds. First, he argued that he holds a license to possess a firearm within a school zone pursuant to Montana Code section 45-8-360, which qualifies him for the state or local license exception in§ 922(q)(2)(B)(ii) of the Gun-Free School Zones Act. Second, he argued that § 922(q)(2)(A) violates his Second Amendment rights under New York State Rifle & Pistol Ass’n v. Bruen. The district court denied Metcalf’s motion to dismiss the indictment. Metcalf then pled guilty, reserving the right to appeal the denial of his motion to dismiss.
Under the Gun-Free School Zones Act, it's not enough to possess a valid carry license issued by the state where the school zone is located. According to the letter of the law, before someone receives that license the licensing authorities are supposed to verify that the applicant is "qualified under law to receive the license."
Montana's permitless carry law states, in part, that "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 i sconsidered 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." In other words, your Second Amendment right is your license to carry.
The district court, however, held that held that Montana law did not qualify for the state or local license exception in the Gun-Free School Zones Act, but the three-judge panel disagreed. Writing for the 2-1 majority, Judge Lawrence Van Dyke opined:
Applying the traditional tools of statutory interpretation—looking to the text, its context, statutory presumptions, judicial constructions, and the canons of construction—we conclude that Metcalf offers at least a plausible reading of § 922(q)(2)(B)(ii), which would qualify him for the license exception. Given this plausible reading, the government did not establish that Metcalf was at least on notice that his Montana license—which explicitly purported to comply with the federal statute—was insufficient to except him from § 922(q)(2)(A)’s prohibition. Affirming Metcalf’s conviction would thus not only run afoul of the rule of lenity’s cautions but would also undermine the principles underlying the Supreme Court’s decision inRehaif, and the presumption in favor of scienter.
I'm not an attorney, but that sounds reasonable to me. Montana law specifically states that if you can legally possess a firearm you're considered licensed by the state of Montana to carry one as well. How would Metcalf or any other gun owner be expected to know that the federal government (or at least the Biden administration's DOJ) disagreed with the statute?
Van Dyke and his colleagues, however, did "agree that the district court’s reading of§ 922(q)(2)(B)(ii) is the better reading of the statute," but the majority went on to explain that, even if the district court's interpretation is a "better" interpretation, it's not the only plausible way of interpreting the statute.
The sixth edition of Black’s Law Dictionary—published in 1990, the same year that the Gun-Free School Zones Act was enacted—also supports Metcalf’s alternative reading of “verify.” This dictionary’s definitions include: “to prove to be true; to confirm or establish the truth or truthfulness of;… to affirm….” Verify, Black’s Law Dictionary 1561 (6th ed. 1990). These definitions of “verify” support Metcalf’s proffered interpretation by confirming that the term could be understood as extending to a state’s actions that “establish”or “affirm” that an individual who meets certain qualifications is deemed licensed, as Montana did here when enacting section 45-8-360.
So “verifying” does not necessarily require “ensur[ing] ”via some “licensing process” that an individual is qualified to possess a firearm, as the district court concluded. Rather, “verifying” can also include an affirmative statement, or assertion, establishing an individual’s qualification to bear a firearm. And the state of Montana made just such an assertion here. See Mont. Code § 45-8-360 (asserting that “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”).
The government emphasizes the temporal requirement in§ 922(q)(2)(B)(ii) that a state must verify that an individual is qualified “before an individual obtains a license.” But that begs the question: What action must be done before the individual obtains a license? Is it some individualized “licensure process” by which state officials confirm that an individual meets the requirements for licensure, as the district court concluded? Or could it be a state’s assertion that certain individuals are considered qualified, if they meet certain requirements, as Montana did here? See Mont. Code§ 45-8-360. If the latter—which, as just explained, is at least consistent with dictionary definitions of “verify”—then the Montana Legislature did make its assertion “before” Metcalf was granted a state license when the legislature passed section 45-8-360 into law in 1995.
Van Dyke calls the decision a narrow one, noting that Montana appears to be the only permitless carry state with language declaring lawful gun owners to be individually licensed. But Jimmy Carter-appointed Judge Mary Murphy Schroeder disagreed, writing in dissent that the majority:
essentially agrees with the district court that the Constitution was not violated and that the federal statute was violated, but nevertheless orders that the district court should have dismissed the indictment. It reaches this conclusion by means of a tortured application of lenity and scienter principles to create an exception in Metcalf’s particular case, because the local police did not charge him with violating any state law.
I'm sure that Schroeder has forgotten more law than I'll ever know, but she's just flat out wrong in her view of the majority's opinion, which reached no conclusion about Metcalf's Second Amendment argument. Nor did the panel conclude that Metcalf violated federal statute. The majority found that Metcalf raised a plausible argument that his bearing arms was, in fact, consistent with the Federal Gun-Free School Zones Act's exception for those licensed to carry by the state. It wasn't just the fact that Metcalf was told by local police that he wasn't breaking the law, though that too is another point in Metcalf's favor. There is genuine ambiguity about Montana's permitless carry statute and whether it comports with the Gun-Free School Zones Act's licensing exception.
Judge Schroeder dissents from the decision by Judges VanDyke and Owens, saying that the majority "apparently views [the defendant] to be a sympathetic person who has been unjustly treated" and "[t]he result leaves him free to pick up arms and continue to frighten the neighbors" pic.twitter.com/b3xawLId0C
— Firearms Policy Coalition (@gunpolicy) September 23, 2025
The law should apply equally to sympathetic and unsympathetic defendants. Justice is supposed to be blind, after all. I do think it's fair to say that the majority believes Metcalf has been unfairly treated given their decision that he never should have been indicted to begin with. But It's Schroeder who seems to have a problem with Metcalf's behavior, and her accusation that the majority is letting their emotions guide their decision seems like a classic case of projection to me.
