Yesterday saw the most significant effort to date by a lower federal court to “narrow from below” the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen.  That decision held that the Second Amendment secures the right of individuals to carry firearms in public for self-defense.  Yet, using the Federal Gun Free School Zones Act, the district court in Montana effectively held that individuals who live within 1,000 feet of a school have no right to possess or transport firearms off their own premises.  That decision, if upheld, could effectively mark the end of Bruen, not just for residents who live within 1,000 feet of a school, but also for those who travel within 1,000 feet of a school—which is to say, virtually anyone who carries a firearm at any time.  It is the ultimate effort to use the Supreme Court’s dicta about restricting firearms in “sensitive places” to make public carry generally unlawful. 

The Montana decision involved a man named Gabriel Metcalf, who lived across the street from an elementary school.  Metcalf admitted to carrying a firearm for protection on the sidewalks and streets surrounding his home.  The conduct apparently disturbed parents at the school.  But although Montana police investigated, they could not intervene.  They had no evidence that Metcalf went armed on school property, and his carrying of the firearm on nearby public streets and sidewalks was lawful under Montana law.  Disturbed by his conduct, federal agents sought a warrant and arrested him for violating the federal Gun Free School Zones Act.  

Passed in 1990 (and slightly amended in 1996 after United States v. Lopez), the federal Gun Free School Zones Act generally prohibits the possession of a firearm within 1,000 feet of a school.  The exceptions are limited.  Individuals may possess firearms on private property.  On public property, they may possess unloaded firearms in a locked case or locked firearms rack, but only if they are in a motor vehicle.  Law enforcement officers may carry firearms in the performance of their official duties.  And individuals may carry firearms if they have a license from the state in which the school zone is located, provided the state performs a background check before issuing the license.  There are a few other miscellaneous exceptions not relevant here (e.g., programs approved by the school).

In district court, Metcalf moved to dismiss the indictment.  Among other things, he argued that the federal Gun Free School Zones Act violated his right to bear arms under the Second Amendment.  And he has a strong case; as explained momentarily, the Act constitutes a total ban on his ability to lawfully carry a firearm for self-defense near his home and an almost-total ban on his ability to carry or transport a firearm off his own premises.  

Yet, the district court denied his motion.  The court held that large buffer zones around sensitive places were consistent with this country’s tradition of regulating firearm ownership.  To support this conclusion, it cited a 1776 Delaware constitutional provision that prohibited the possession of firearms within a mile of a polling place within a day of an election, and three Reconstruction-era laws that similarly prohibited the possession of firearms near polling places while voting was in progress or on Election Day.

The district court’s reliance on these laws assumes that these laws were constitutional, which is hardly a given.  These laws established broad buffers, and it is not clear that the Framing generation accepted their constitutionality.  At the Founding, only one jurisdiction (Delaware) had such a law.  Nor does the district court explain the relevance of the Reconstruction-era laws.  Although Bruen left open whether the historical tradition in 1791 or 1868 was controlling in cases involving state laws, this case involves a federal law.  The historical tradition in 1868 when the Bill of Rights was incorporated against the states, thus, has no force unless this tradition is grounded in the Framing-era understanding of the right or in subsequent liquidation.  

But I will put that issue aside, and assume arguendo that these laws were viewed as constitutional.  Even then, the federal Gun Free School Zones Act has glaring constitutional problems. 

As I argued in a recent essay with Will Baude, district courts should be looking to historical legal principles, not specific laws, when determining whether a gun control law violates the right to bear arms.  And one important legal principle governing sensitive place restrictions is that narrow restrictions on the right are permissible, while broad bans on public carry are not.  

There is simply no comparison between the burden these election laws created on the right to bear arms and that created by the federal Gun Free School Zones Act.  For those who lived in a buffer zone, these Election Day laws prohibited carrying firearms only on a single day that occurred once every year or two—and even then, sometimes only during voting hours.  Compare that with the burden imposed by the Gun Free School Zones Act, which applies every day of the year, whether or not school in session.   Unless they have a qualifying license, residents who live within 1,000 feet of a school are almost completely barred from carrying or transporting a firearm off their own premises.  These residents may never carry a firearm while walking off their property.  They may never carry a firearm while riding a bicycle.  They may not carry a firearm if they take public transportation.  Indeed, they may not even transport an unloaded firearm afoot for target shooting or hunting.  The only exception to which they could avail themselves is the exception for having an unloaded and locked firearm in a motor vehicle.  But that exception does not cover individuals who are not driving or lack access to cars.  And individuals who lack private driveways (e.g., residents of apartments in urban areas) may have no private driveways in which to lawfully transport their guns from their homes to their cars, if they own a car at all.

The district court ignored the burden on Metcalf’s right to carry arms for self-defense.  Again, Metcalf cannot walk off his premises with a firearm under any circumstances.  He may not carry or transport a firearm on the sidewalks and streets surrounding his home.  It does not matter whether the gun is loaded or unloaded.  It does not matter whether he is carrying the gun for personal protection or transporting it to go target shooting or to have it repaired.  If he wants to carry a firearm for personal protection while riding a bicycle, he would have to first drive his firearm, unloaded and in a locked case, 1,000 feet away from the school.  He would then have to walk home, get his bicycle, and then ride to his car and retrieve his gun.  The burden on his self-defense right is enormous, and far exceeds any historical example cited by the district court.

Justifying its decision, the district court explained (at 22) that Metcalf was free to carry a firearm on his property, provided he did not step onto an adjacent public sidewalk.  But that explanation pretends as if Bruen never happened.  The district court’s decision would have merit if Heller secured only a right to keep arms in the home.  Bruen rejected that understanding of Heller, overturning several lower court decisions that had effectively confined Heller to the home.

The district court’s decision, moreover, paves the way to broadly frustrate the right to bear arms even by those who live outside of school zones.  In urban areas, the buffer zones—1,000 feet around every primary and secondary school—cover significant portions of entire cities.  Even in rural areas, main public roads often pass within some school zone.  It is virtually impossible to carry a firearm and not cross a school zone at some point.  So this buffer zone has an enormous impact on carrying firearms for self-defense—or even transporting them for target shooting and hunting.  

The only way to avoid the strictures of the Gun Free School Zones Act when carrying a firearm for self-defense is to have a license to carry a firearm in the state in which the school zone is located, provided the state requires an adequate background check as a condition of receiving the license.  This exception admittedly covers many people, particularly after Bruen invalidated so-called “may issue” licensing schemes.  But even this exception has its limits.  The exception does not cover states that fail to perform an adequate background check as a condition of receiving a carry license.   Nor does it cover individuals in Vermont; the state has never required or issued licenses to carry a firearm.  Following Vermont’s lead, about half of states permit people to carry firearms without a license, and unlicensed individuals in these states would still be bound by the federal law.  Several additional states also permit individuals to carry firearms without a license if they are not concealed.  Off-duty and retired law enforcement officers, who are authorized to carry concealed firearms nationwide based on the Law Enforcement Officers Safety Act, could be prosecuted if they enter a school zone.  So could individuals carrying firearms in other states based on having a recognized out-of-state firearm licenses (“reciprocity”).  The Gun Free School Zones Act, written before reciprocity became common, does not exempt out-of-state licenses.  So the Gun Free School Zones Act’s firearm licensing exception only mitigates the problem slightly.

Finally, the district court’s opinion shows the continued ease with which motivated judges can manipulate the Supreme Court’s legal tests to evaluate whether gun control laws violate the right to bear arms.  Bruen instructed lower courts to evaluate gun control laws using a text, history, and tradition test.  This test replaced a weakened form of intermediate scrutiny that had become endemic in the lower courts after Heller.  But as the district court’s opinion demonstrates, enunciating a text, history, and tradition test is not a panacea that will prevent lower court judges from treating the Second Amendment as a “second-class right.”  The district court’s historical arguments were weak.  The court ignored the important legal principles underlying these precedents, which distinguish narrow restrictions on the right to carry arms from bans that broadly stifle the right.  In the face of significant resistance from lower courts, Bruen’s ultimate real-world impact will be minimal, unless the Supreme Court invests significant effort to defend its judgment in the future.