Amicus Brief to be Filed in Gun Free School Zone Case

At the Gun Rights Policy Conference in San Diego in 2024, this correspondent spoke to lawyers about challenges to the Gun Free School Zone (GFSZ) Act. Michel & Associates have maintained an exceptional presence in Second Amendment lawsuits aimed at restoring the Second Amendment.

Michel & Associates has filed an amicus brief (friend of the court) in the Fifth Circuit Court of Appeals GFSZ case. When asked about the GFSZ case in Montana, C.D. Michel asked for the particulars. The next morning, Konstadinos T. Moros, who is an attorney at Michel & Associates, informed me he will be filing an amicus brief in the Billings Montana GFSZ case.  The case, USA v Metcalf, is being appealed in the United States Court of Appeals for the Ninth Circuit.

Michel & Associates will be representing the California Rifle and Pistol Association, the Second Amendment Law Center, the Second Amendment Foundation, and Minnesota Gun Owners Caucus. More organizations or individuals may be added by the time the brief is filed. Moros explained the amicus briefs are due in November of 2024 for the Ninth Circuit case.

The brief will likely be similar to the amicus brief filed on July 19, 2024, in the USA v Allam case in the United States Court of Appeals for the Fifth Circuit. The Constitutional issues in both cases are similar. The facts of the cases are considerably different.

Gabriel Metcalf is an exemplary citizen with no criminal record. He moved to Billings to help his aging mother. He was attacked by a neighbor who was subsequently found guilty of assault and violating a restraining order. Gabriel was repeatedly assured by local law enforcement officials that his actions were within his rights, as the officials attempted to persuade him not to exercise those rights. Gabriel and his mother live across the street from a local school, which may be a useful distinction.

Unable to legally arrest Gabriel, the Billings Police enlisted the assistance of federal law enforcement.  Gabriel and his mother sought help from the FBI to end the harassment by local police, also hoping to persuade the local police to enforce the restraining order against their former neighbor.

Under the pretext of responding to the plea for help, a combined local police and ATF task force contacted Gabriel on a telephone call. They obtained information about him carrying his single-shot Rossi shotgun. They asked Gabriel to stop carrying the shotgun where others could see it. Gabriel complied and stored the shotgun before the school year started.  The task force used the call to Gabriel, with information from Billings Police and neighbors, to obtain a warrant. They arrested Gabriel and searched Gabriel and his mother’s home. They unnecessarily broke a door and seized the Rossi single-shot shotgun and six rounds of 20 gauge ammunition. The federal prosecutor charged Gabriel with violating the federal Gun Free School Zone Act.

The case has been extensively covered at AmmoLand. Gabriel entered a plea deal to stay out of prison. The plea deal preserved the right to challenge the constitutionality of the GFSZ Act on appeal.

Little is known about the defendant in the Fifth Circuit case. It is uncertain if he has as stellar a character as Gabriel Metcalf. Character should not be considered in appeals cases on fundamental constitutional rights. However, judges are human. Bad facts make for bad law.

The Fifth Circuit has tended to follow Supreme Court precedent for upholding Second Amendment rights. The Ninth Circuit has a considerable history of defying the Supreme Court to deny Second Amendment rights. Different outcomes in the two cases would make it more likely the Supreme Court will hear another challenge to the GFSZ Act. The first case was USA v Lopez in 1995. In Lopez, the court found the GFSZ act to be unconstitutional because the federal government exceeded its power under the Commerce Clause.  President Clinton and his AG, Janet Reno, successfully lobbied for a dozen word change in the law. Some circuit courts have upheld the law as constitutional with the changed words.

Much depends on the 2024 election. The inferior courts which are defying the Supreme Court are fighting a delaying action, hoping for a Harris presidency to change the makeup of the Supreme Court. A Harris Supreme court would be Progressive instead of originalist and textualist. It would reverse the Heller, McDonald, Caetano, and Bruen decisions, pushing the Second Amendment to legal irrelevancy.  If President Trump regains the presidency, the Supreme Court is likely to make short work of the current defiance of their Second Amendment decisions in the inferior courts.

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.