ATF agents arrested Gabriel Cowan Metcalf for possessing a firearm in the controversial “gun free school zone” defined by federal law, on August 23, 2023. Federal law prohibits possession of a firearm within a thousand feet of a school. The law was found to be unconstitutional in 1994, re-passed with slightly different language in 1994, then re-passed with minor changes in 1996. It has not been subject to scrutiny by the Supreme Court since before the Heller decision in 2008. Under the Bruen decision, which reinforced the Heller decision in 2022, the gun free school zone act is blatantly unconstitutional. From justice.gov:
BILLINGS — A Billings man accused of illegally possessing a gun near a Billings elementary school appeared today in federal court on a firearms charge, U.S. Attorney Jesse Laslovich said.
Gabriel Cowan Metcalf, 49, had an initial appearance on a criminal complaint charging him with possessing a firearm within a school zone. If convicted, Metcalf faces a maximum of five years in prison, a $100,000 fine and three years of supervised release.
U.S. Magistrate Judge Timothy J. Cavan presided. Metcalf was detained pending further proceedings.
The government alleged in court documents that from Aug. 2 to 17, the Billings Police Department received multiple calls and weapons complaints regarding Metcalf, who lives at 430 Broadwater Ave., walking on the sidewalk and around the area carrying a firearm. Broadwater Elementary School is directly across the street from Metcalf’s residence. The sidewalk and streets in front of Metcalf’s residence are public property within 1,000 feet from the school and are a “school zone” as defined in federal statutes.
Bureau of Alcohol, Tobacco, Firearms and Explosives agents arrested Metcalf near his residence on Tuesday night, pursuant to a warrant issued by a federal judge, and executed a search on the residence at 430 Broadwater Ave.
A criminal complaint is only an accusation, and a defendant is presumed innocent until proven guilty beyond a reasonable doubt.
Assistant U.S. Attorney Thomas K. Godfrey is prosecuting the case. The ATF and Billings Police Department conducted the investigation.
Federal Attorneys have been very cautious about prosecutions under the Gun Free School Zone Act of 1996. They are likely concerned about its dubious status under the Commerce Clause and the Second Amendment. According to this correspondent’s recollection, a few cases have been filed, where the suspects were also felons.
Gabriel Cowan Metcalf does not appear to have a criminal record. This makes the federal arrest by federal agents a good candidate for a Second Amendment and Commerce Clause challenge. Second Amendment supporting organizations would do well to contact Mr. Metcalf to investigate the situation and the potential for a challenge of the federal Gun Free School Zone Act. School Zones are not on the list of “sensitive places” mentioned in the historical record, as regulations accepted, at the time the Second Amendment was ratified. The imposition of 1,000 foot zones around schools, where firearms may not be carried, effectively nullifies the right to bear arms.
As a direct challenge to a federal law, a Second Amendment challenge to the Constitutionality of the Gun Free School Zone Act looks like a good bet. No worries about “standing” in this case. The US Attorney may try to punish Metcalf with the process, for example asking for exorbitant bail, and trying to keep him locked up while the case is ongoing, pushing for a plea deal.
More information will become available shortly.
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.
