Litigation Highlight: How Permitless Carry Can Expand Federal Sensitive-Place Restrictions

Federal law criminalizes the possession of a firearm in a school zone, which includes a buffer zone of 1,000 feet surrounding school grounds.  The federal ban contains a number of exceptions, including for contracted security personnel, law enforcement officers, individuals who lock and store guns while passing through a school zone, and individuals licensed under state law with verification.  In a recent decision, a federal judge in Montana confronted the question of how the state’s permitless carry approach interacts with the enumerated exceptions in the Gun-Free School Zones Act—demonstrating how state deregulation of firearms can lead to unexpected federal consequences for state residents.

Gabriel Metcalf resides in Billings, Montana across the street from (and within 1,000 feet of) an elementary school.  Neighbors and parents lodged complaints that Metcalf frequently carried a gun in his yard and on his street, and he was eventually arrested by federal law enforcement for possessing a gun in a school zone.  The Gun-Free School Zones Act, or GFSZA, provides that:

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce[1] at a place that the individual knows, or has reasonable cause to believe, is a school zone.

As relevant to Metcalf’s case, the statute also explains that the ban “does not apply to the possession of a firearm”:

(i) on private property not part of school grounds; [or] (ii) 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.

Metcalf admitted to carrying a gun within a school zone—both on his own property and on a nearby public sidewalk.  Metcalf was permitted to carry on his own property under part (i) of the statutory exemption, but not on the public sidewalk or road in front of his house.  Metcalf argued that he was exempt from the federal ban under the state licensure exemption when carrying on public property near his house.  Montana is a constitutional, or permitless, carry state.  The state provides 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” without undergoing any formal application or other government process to actually obtain a physical license.  Montana’s permitless carry statute also says that such automatic licensure is “within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act”—an apparent effort to head off federal prosecution in situations such as Metcalf’s.

Metcalf is not a prohibited possessor under federal or state law.  Therefore, his case turned on the meaning of the licensure and verification exemption in the GFSZA.  The government argued that, notwithstanding Montana’s attempt to legislatively declare that its permitless carry process satisfies the federal exemption, state law in fact does not meet the standard because it “does not require local law enforcement to verify that the qualifications for licensure are met before considering a person licensed.”  Metcalf urged the court to “defer to Montana’s interpretation [and] allow automatic licensure to all those ‘not disqualified under law.’”

In United States v. Metcalf, a Montana federal district judge found that, “while the Act gives deference to each state’s decision as to whom it will issue licenses and how those licenses are issued, the Act requires, at a minimum, that the state require some kind of process for law enforcement to determine whether a person is qualified to own a firearm before issuing a license.”  In other words, according to the court, the plain text of the federal exemption requires some form of government verification that is not present with constitutional or permitless carry.  And the judge determined that “a state legislature cannot work around federal law by simply proclaiming that a state statute meets the federal requirement.”  Thus, the court found that Metcalf was not entitled to the state licensure exemption and violated the GFSZA when he carried a handgun on public property near his home.

Metcalf also raised an alternative argument that the GFSZA itself is unconstitutional under the Second Amendment.  After holding that “the Second Amendment applies to Metcalf’s possession of his firearm within a school zone,” the court quickly determined that a ban on carrying guns on school grounds is consistent with historical tradition based on the Supreme Court’s endorsement of such restrictions in Heller and Bruen.  The tougher question, the court noted, involves buffer zones—i.e., “whether Congress may prohibit weapons in the 1,000-foot radius surrounding every school.”  The judge found “that the prevalence of school shootings both before and since the enactment of the Gun-Free School Zones Act constitutes an ‘unprecedented societal concern’ that likely does not have a direct historical analogue.”  After deciding that school gun-carry rules (which generally only covered students) and state restrictions from the 1800s (which generally only covered school grounds and sometimes only gun discharge) were not sufficient analogues, the court performed its own historical research and determined that “[p]olling places were historically considered ‘sensitive places’ around which legislatures established a buffer zone where firearms were prohibited.”  Thus, the judge found that “the Nation does have a tradition of restricting firearms within a buffer zone of a ‘sensitive place’” sufficient to support the GFSZA’s broader application.[2]

Here, I’d like to focus on the first part of the court’s holding in Metcalf: its determination that Montana’s permitless carry approach does not fit within the GFSZA’s state licensure exemption.  This is a major issue nationally.  29 states now have permitless carry, and presumably none of those frameworks will satisfy the federal school-zone exemption under Metcalf’s analysis because the thrust of permitless carry is that no prior verification or process is required.  The GFSZA, which passed the House 313-1 and passed the Senate on a voice vote, was adopted at a time when the state public carry landscape looked far different than it does today—in fact, most states still had concealed carry bans or may-issue licensing rules and only Vermont used a permitless carry system.  Thus, on one hand it seems reasonable to presume that Congress drafted the exception expecting that state laws would indeed include some kind of affirmative verification that an individual was qualified to obtain a license.  And it’s easy to see the logic of that requirement from a policy perspective, especially as the law was first enacted not long after the 1989 Stockton schoolyard shooting.  Possessing guns in a school zone might be the type of situation where prior verification of qualifications is important, even if such verification doesn’t generally occur for all handgun carrying in the state. 

The decision also seems correct as a textual matter.  If Congress simply meant to delegate oversight to the state, it could have truncated the exception to refer only to individuals “licensed by the state” rather than adding the mandatory verification requirement.  And it’s up to Congress—not the states or the federal courts—to change that language if it sees fit to do so.