Author Topic: GUN POLITICS (Read 36260 times)

Mark 79 · « **Reply #15 on:** September 26, 2025, 12:16:24 PM »

The 9th Circuit Overturns a Man's Conviction for Holding a Shotgun on the Sidewalk in Front of His House

The decision, which hinges on an exception to the Gun-Free School Zones Act, does not say whether that law is consistent with the Second Amendment.

Jacob Sullum | 9.25.2025 1:55 PM

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Broadwater Elementary School in Billings, Montana (Hulteng CCM Inc.)

A couple of years ago, Gabriel Metcalf was charged with a federal felony because he stepped onto the sidewalk in front of his house in Billings, Montana, while holding a shotgun. Metcalf, who had armed himself because of a dispute with a neighbor who was subject to a restraining order, was not violating state law. But because Metcalf lives across the street from an elementary school, prosecutors in the U.S. Attorney's Office for the District of Montana argued, he had violated the federal Gun-Free School Zones Act (GFSZA).
Metcalf argued that the GFSZA, which bans gun possession on public property within 1,000 feet of a primary or secondary school, violates the Second Amendment right to bear arms. This week the U.S. Court of Appeals for the 9th Circuit sidestepped that issue, instead overturning Metcalf's conviction on the grounds that he arguably qualified for an exception to the GFSZA.
That law exempts anyone who is "licensed" to publicly carry a gun within school zones, provided "law enforcement authorities…verify that the individual is qualified under law to receive the license." But Montana is one of 29 states that allow adults to carry guns without a permit, provided they are not legally disqualified from owning them. Although state legislators explicitly said residents who meet those criteria should be considered "licensed" within the meaning of the GFSZA, federal prosecutors disagreed.
Last year, U.S. District Court Judge Susan Watters sided with the government, saying Metcalf did not qualify as "licensed" under the GFSZA. She also ruled that the statute is constitutional because it is "consistent with this Nation's historial tradition of firearm regulation"—the Second Amendment test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Assoiation v. Bruen.
The 9th Circuit's decision in United States v. Metcalf does not address the latter issue. But two members of the three-judge panel concluded that Watters should have dismissed Metcalf's indictment because his understanding of "licensed" was plausible.
"The parties do not dispute that Metcalf holds a license pursuant to Montana Code section 45-8-360," Judge Lawrence VanDyke, a Donald Trump appointee, notes in an opinion joined by Judge John B. Owens, who was nominated by Barack Obama. "Instead, they dispute whether Montana's procedure for issuing this license complied with the [GFSZA's] requirements."
Based on "the traditional tools of statutory interpretation, Metcalf has offered at least a plausible reading of the exception" for "licensed" gun owners, VanDyke says. "When we factor in the canon of constitutional avoidance and the rule of lenity, Metcalf lacked the appropriate notice to be convicted of violating the Gun-Free School Zones Act. Affirming Metcalf's conviction would be inconsistent with the principles of fair notice and of not punishing innocent conduct."
Metcalf "argued both here and in the district court that he is covered by the state or local license exception because Montana has 'verified that any individual who is not prohibited under the laws of Montana or who has not been convicted of a violent felony crime is qualified to receive a license to carry a firearm within a school zone,'" VanDyke notes. "In response, the government has argued both here and below that the Montana statute 'does not require that law enforcement authorities of the state verify that the individual meets those qualifications before obtaining a license,' so 'the Montana provision does not meet the federal requirements for the exemption to apply' and 'Metcalf's firearms possession was not exempted.'"
Although the latter view is "the better reading of the statute," VanDyke says, "we do not agree that this reading is the only plausible reading or that the statute is unambiguous." The government, he notes, seems to assume that law enforcement agencies can "verify" that someone qualifies for a license only by conducting a background check. Yet "dictionary definitions of 'verify' explain" that the word can also mean "assert, affirm, or confirm, as true or certain."
Under that broader definition, VanDyke writes, "Montana has in some sense 'verif[ied]' that Metcalf is qualified to hold a license by 'assert[ing]' that individuals are deemed to hold a license if they meet certain minimum qualifications. Thus, a subsequent 'licensing process' may not be necessary for the state to 'verify' that an individual is qualified under state law to hold a license."
VanDyke also notes that GFSZA is part of a broader statute that generally "defer to state determinations and state findings when concluding whether the [elements of] federal offenses and exceptions are satisfied." He says "Metcalf's reading of the license exception is consistent with Congress's repeated deference to states' findings and laws" in the surrounding statutory text. And he notes that the Supreme Court has said "federal courts should avoid interfering with state governments' internal decisions under the guise of statutory interpretation" unless Congress has made "a clear statement to the contrary."
The only prior federal appeals court decision addressing the meaning of "licensed" under the GFSZA likewise lends support to Metcalf's reading of the law, VanDyke says. In the 2000 case United States v. Tait, the government argued that an Alabama pistol license did not count under the GSFZA because the state did not require local licensing authorities to conduct a background check. The 11th Circuit rejected that argument.
Although "the Alabama law is extremely lenient," the appeals court said, "it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies." The 11th Circuit concluded that "Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements."
VanDyke argues that siding with Metcalf is also consistent with the constitutional avoidance doctrine, which says courts should strive to avoid constitutional questions unless addressing them is necessary to resolve a case. In this case, he says, "the statute is susceptible to at least two plausible interpretations," one of which raises "serious questions" under the Second Amendment.
VanDyke also invokes the rule of lenity, which urges courts to favor defendants when interpreting ambiguous criminal laws. That rule aims to ensure that people are not convicted unless they had fair notice of conduct that could lead to their arrest and prosecution.
Metcalf "was informed by local authorities that it was permissible for him to be armed and that by possessing his firearm he was not violating the law," VanDyke notes. "Metcalf then initiated a conversation with federal authorities, during which he expressed concerns about his interactions with the local officials and explained 'how he has researched the law pertaining to firearms' and 'went to great lengths to articulate that he follows the law.'"
State law informed Metcalf that he was "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." And "before the district court's decision in this case," VanDyke notes, "there was no court decision that could have put Metcalf on notice that the license the legislature conferred upon him was, in fact, invalid to comply with federal law. Given these facts, we cannot say that Metcalf received the 'fair warning…in language that the common world will understand,' with which the rule of lenity is concerned."
For similar reasons, VanDyke says, Metcalf's prosecution was inconsistent with "the presumption in favor of scienter"—i.e., a culpable state of mind. That presumption, he notes, "reflects the basic principle that 'wrongdoing must be conscious to be criminal.'"
Dissenting Judge Mary Schroeder, a Jimmy Carter appointee, criticizes the majority's "tortured application of lenity and scienter principles." Since "this statute is not ambiguous," she says, the rule of lenity does not apply. She adds that scienter requires nothing more than Metcalf's "knowledge of facts constituting the elements of the crime," as opposed to "knowledge that the conduct violates a criminal statute."
Schroeder says the majority "essentially agrees" with Watters that Metcalf's prosecution was consistent with the Second Amendment. To the contrary, the other two judges explicitly avoided that issue. But they did note that Metcalf's convinction "'raise serious constitutional problems,' or at least 'serious questions,' under the Second Amendment."
The Supreme Court has said schools themselves qualify as "sensitive places" where guns can be banned without violating the Second Amendment. But that does not necessarily mean zones extending a fifth of a mile in every direction from school grounds fall into the same category.
Because schools are scattered throughout communities across the country, those zones cover a lot of territory. In most cities, it would be difficult for someone to travel without traversing one or more of them. The 9th Circuit's resolution of Metcalf's case leaves open the question of whether that situation is consistent with the right to bear arms that the Supreme Court upheld in Bruen.

Mark 79 · « **Reply #16 on:** **Yesterday** at 06:13:54 PM »

Feds Move To Dismiss Marijuana And Gun Rights Case In Anticipation Of Landmark Ruling From Supreme Court

Published

on
September 26, 2025
By
Kyle Jaeger

The Trump administration is asking a federal court to dismiss one of multiple pending cases concerning marijuana and gun rights, in large part because it expects the U.S. Supreme Court to make a precedent-setting ruling on the issue.
In a filing with the U.S. District Court for the Western District of Oklahoma on Tuesday, attorneys for the Justice Department urged a judge to dismiss a case “without prejudice” that involves a man charged in 2022 after police discovered cannabis and a handgun in his vehicle during a traffic stop.
Attorneys for the man, Jared Michael hαɾɾιson, also want the court to dismiss the case—but they take issue with DOJ’s specific request, as dismissing the case without prejudice would mean he could be prosecuted again. And they criticized the government’s arguments in support of its motion, noting that the department relied heavily on the length of the court battle that’s lasted three years. The lawyers also challenged the idea that outstanding Supreme Court cases that similarly deal with cannabis and federal firearms laws justify dismissal without prejudice.
But according to the federal government, the request would be “in the interest of justice,” while recognizing that the constitutionality of the statute in question–18 U.S.C. § 922(g)(3)—”remains open both in this case and in the country as a whole. ”
“There are currently seven petitions for certiorari pending before the Supreme Court challenging the constitutionality of § 922(g)(3) under the Second Amendment, six of which involve as-applied challenges, and are a mix of petitions filed by the United States and criminal defendants,” DOJ said, adding that they expect there’s a “reasonable likelihood that the Supreme Court will grant certiorari” in at least one of the pending cases.
“Continuing to pursue this case at this time would needlessly waste judicial and prosecutorial resources,” the government’s filing said.
“Second Amendment jurisprudence has developed significantly over the past three years. Nevertheless, based on the way the case was litigated three years ago, the Tenth Circuit held that certain arguments were waived and foreclosed the government from addressing them on remand. As a result, the United States believes that the interest of justice favors dismissal in this case to clear the way for a case that does not contain these impediments.”
hαɾɾιson’s lawyers said in their own filing on Tuesday that they have “no objection to dismissal in general.” However, they emphasized that such a dismissal should be ordered “with prejudice,” making it so he cannot be tried again for the same alleged crime.
“The government seeks to abandon this prosecution—for now—while keeping open the ability to prosecute Mr. hαɾɾιson again in the future,” his lawyers said. “Its request, if granted, would leave Mr. hαɾɾιson under the specter of reindictment at essentially any time, and for illegitimate reasons.”
The filing states that the government has acknowledged that part of its rational for making the request is because “it is unprepared for trial, the case is old, and it is constrained by appellate waiver rulings.”
“These are litigation choices and resource constraints attributable solely to the prosecution,” it says. “Allowing dismissal without prejudice under these circuмstances would permit the government to evade the consequences of its own decisions while keeping Mr. hαɾɾιson under indefinite threat of renewed prosecution.”
“The possibility that the Supreme Court may take up § 922(g)(3) in another case is not a valid reason to keep Mr. hαɾɾιson under threat of reindictment. Rule 48(a) permits dismissal when consistent with the fair administration of justice, not to hold defendants in limbo while appellate strategy plays out elsewhere. If the government believes a forthcoming decision will alter the legal landscape, it remains free to test that decision in a future case—but not at Mr. hαɾɾιson’s expense.”
The filing says the government’s rationale underscores why the dismissal should be made with prejudice, noting that the prosecution “has already consumed years of litigation, appellate review, and judicial resources.”
“Allowing dismissal without prejudice would perpetuate uncertainty, leaving Mr. hαɾɾιson indefinitely under the shadow of indictment despite the government’s own admissions that it cannot presently try the case,” it says. “That outcome is contrary to the fairness and integrity Rule 48(a) is designed to protect.”
“Where, as here, the government’s justifications rest on the age of the case, questions of resource allocation, and the constraints of prior litigation, the public interest is not served by leaving the door open to renewed prosecution. Finality, fairness, and the protection against harassment all point in one direction: the indictment should be dismissed with prejudice. Mr. hαɾɾιson therefore respectfully requests that this Court grant the government’s motion only to the extent of dismissing the indictment with prejudice.”
Last month in the case, the Tenth Circuit ruled that the government must prove that people who use marijuana “pose a risk of future danger” if it wants to justify applying a law banning cannabis consumers from owning firearms, siding with a lower district court that dismissed an indictment against hαɾɾιson.
The Justice Department appealed that ruling in 2023, sending it to the Tenth Circuit. That three-judge panel said in a recent filing that they “agree with much of the district court’s analysis” of the legal considerations, including its challenge to the federal government’s claims that there is historically analogous precedent substantiating the firearm ban for cannabis consumers.
Part of DOJ’s argument was that the ban is historically consistent with prohibitions on gun ownership by people with mental illness. The appeals court said “the government cannot justify” the current policy based on that standard.
The lower court largely based his initial decision on an interpretation of a U.S. Supreme Court ruling in which the justices generally created a higher standard for policies that seek to impose restrictions on gun rights.
The ruling states that any such restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.
The historical analogues that the Justice Department relied on to make the case that the ban is consistent included references to antiquated case law preventing Catholics, loyalists, slaves and Indians from having guns.
The circuit court, for its part, said that “the government must show non-intoxicated marijuana users pose a risk of future danger” to support the current policy. “This inquiry, which may involve fact finding, is best suited for the district court.”
This opinion comes nearly a year after the Tenth Circuit heard oral arguments in the case, with judges questioning not only the firearms prohibition itself but also whether it was within the scope of the appeals panel’s power to review the underlying lower court’s decision. Ultimately, they determined that they did possess that authority.
Meanwhile, in the U.S. Court of Appeals for the Eleventh District, judges recently ruled in favor of medical cannabis patients who want to exercise their Second Amendment rights to possess firearms.
In the background of these developments, the U.S. Supreme Court is considering a series of cases challenging the gun ban for people who use marijuana.
The Trump administration has asked the high court to hear one of five relevant cases to resolve conflicting lower court decisions on gun rights for cannabis consumers and other illegal drugs from owning firearms and uphold the prohibition.
In the request, the solicitor general reiterated his position that, despite recent appeals court decisions calling into question the constitutionality of the firearms ban for people who use cannabis—even in compliance with state law—the restriction is nevertheless lawful.
As a recent report from the Congressional Research Service (CRS) explained the current legal landscape, a growing number of federal courts are now “finding constitutional problems in the application of at least some parts” of the firearms prohibition.
In a July ruling, for instance, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit vacated a defendant’s conviction and remanded the case back to a district court, noting that a retrial before a jury may be necessary to determine whether cannabis in fact caused the defendant to be dangerous or pose a credible threat to others.
By contrast, the Third Circuit earlier this month said in a published opinion that district courts must make “individualized judgments” to determine whether 922(g)(3) is constitutional as applied to particular defendants.
The appeals panel ruled that while a person “need not have harmed someone, threatened harm, or otherwise acted dangerously to justify his disarmament,” the history of gun laws in the country requires that “district courts must make individualized judgments and conclude that disarming a drug user is needed to address a risk that he would pose a physical danger to others.”
Judges in that case noted that historical restrictions on gun ownership under “drunkenness and lunacy laws” in the U.S. “were still always based on an ‘individualized assessment’ rather than a categorical judgment.”
Earlier this year, a federal judge in Rhode Island ruled that the ban was unconstitutional as applied to two defendants, writing that the government failed to establish that the “sweeping” prohibition against gun ownership by marijuana users was grounded in historical precedent.
A federal judge in El Paso separately ruled late last year that the government’s ongoing ban on gun ownership by habitual marijuana users is unconstitutional in the case of a defendant who earlier pleaded guilty to the criminal charge. The court allowed the man to withdraw the plea and ordered that the indictment against him be dismissed.

Author Topic: GUN POLITICS (Read 36260 times)

Mark 79

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