In United States v. Metcalf, --- F.4th ---, No. 24-4818 (9th Cir. 2025), a divided Court reversed the district court’s order denying Gabriel Cowan Metcalf’s motion to dismiss an indictment charging him with possessing firearms within 1,000 feet of a school in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A), and remanded with direction to dismiss the indictment.
Gabriel Cowan Metcalf lives in Billings, Montana, across the street from a public elementary school. For several days in August 2023—before the school year started—Metcalf patrolled outside his home with a shotgun, including on the sidewalk in front of his home. He did so to protect himself and his mother, whom he lives with, from a former neighbor who had repeatedly violated a protection order that Metcalf’s mother held against the neighbor. Local law enforcement received multiple complaints about Metcalf and confronted him several times, but didn’t charge him with violating any law, and indeed told him that he was complying with state law. Only after Metcalf reached out to the FBI was he indicted for violating the Gun-Free School Zones Act, which prohibits possessing firearms within 1,000 feet of a school. See 18 U.S.C. § 922(q)(2)(A).On appeal, we hold that Metcalf’s indictment must be dismissed. The Gun-Free School Zones Act excepts from the Act’s broad prohibition individuals who hold a license by their state, if “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.” § 922(q)(2)(B)(ii). The parties do not dispute that Metcalf holds a license pursuant to Montana Code section 45-8-360. Instead, they dispute whether Montana’s procedure for issuing this license complied with the requirements set out in § 922(q)(2)(B)(ii). Applying the traditional tools of statutory interpretation, Metcalf has offered at least a plausible reading of the exception in § 922(q)(2)(B)(ii), such that 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, which underly the presumption in favor of scienter that the Supreme Court addressed in Rehaif v. United States, 588 U.S. 225 (2019). Accordingly, we reverse the district court’s order denying Metcalf’s motion to dismiss. Because we conclude that Metcalf’s appeal is resolved by virtue of the absence of fair notice, we do not address Metcalf’s second argument—that his conviction under the Gun-Free School Zones Act violates his Second Amendment rights.The parties [] dispute whether the Montana license that Metcalf holds complies with the federal requirements for the license exception to apply—that is, whether Montana’s licensure requirement provides “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.” § 922(q)(2)(B)(ii).Applying the traditional tools of statutory interpretation—looking to the text, its context, statutory presumptions, judicial constructions, and the canons of construction—we conclude that Metcalf offers at least a plausible reading of § 922(q)(2)(B)(ii), which would qualify him for the license exception. Given this plausible reading, the government did not establish that Metcalf was at least on notice that his Montana license—which explicitly purported to comply with the federal statute—was insufficient to except him from § 922(q)(2)(A)’s prohibition. Affirming Metcalf’s conviction would thus not only run afoul of the rule of lenity’s cautions but would also undermine the principles underlying the Supreme Court’s decision in Rehaif, and the presumption in favor of scienter.Metcalf also finds support in constitutional avoidance and the rule of lenity, as both militate against applying § 922(q)(2)(A) here. Constitutional avoidance applies “when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Prison Legal News v. Ryan, 39 F.4th 1121, 1131 (9th Cir. 2022) (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005)). The canon directs that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))). The canon suggests that “courts should construe ambiguous statutes to avoid the need even to address serious questions about their constitutionality.” United States v. Davis, 588 U.S. 445, 463 n.6 (2019).Constitutional avoidance counsels against adopting the district court’s interpretation of § 922(q)(2)(B)(ii), even if it is the more natural reading of the statute. As explained, the statute is susceptible to at least two plausible interpretations. And as the parties’ extensive dispute over the validity of Metcalf’s conviction under § 922(q)(2)(A) lays bare, his conviction “raise[s] serious constitutional problems,” or at least “serious questions,” under the Second Amendment. Edward J. DeBartolo Corp., 485 U.S. at 575; Davis, 588 U.S. at 463 n.6; see also United States v. Allam, 140 F.4th 289, 291 (5th Cir. 2025) (addressing Second Amendment challenge to Gun-Free School Zones Act). Thus, under these circumstances, we can construe the statutory exception “to avoid such problems.” Edward J. DeBartolo Corp., 485 U.S. at 575. To be sure, the government’s proposed interpretation may be the more natural understanding of what it means for a state law enforcement authority to verify an individual’s qualifications. But “even if the Government’s reading were not the best one, the interpretation is at least ‘fairly possible’—so the canon of constitutional avoidance would still counsel us to adopt it.”Here, as explained, Metcalf has offered a plausible reading of § 922(q)(2)(B)(ii), under which his license pursuant to Montana Code section 45-8-360 excepts him from the Gun-Free School Zones Act’s prohibition. While that alone may not be enough to trigger the rule’s application, the unique facts of this case militate in favor of its application. As Metcalf contends, he 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. 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.” Metcalf was also told by his state legislature, in Montana Code section 45-8-360, 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, 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.Our decision today is a narrow one. Metcalf was the first, and to our knowledge, only, person in Montana to have raised the license exception in response to a charge for violating the Gun-Free School Zones Act. Our narrow conclusion results from the unique convergence of Metcalf’s plausible reading of Montana Code section 45-8-360, constitutional avoidance, the rule of lenity, and the absence of criminal notice. As one legal scholar has noted, Montana’s licensure process in section 45-8-360 is unique, and no other states of which we are aware have adopted a similar approach. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1528 & n.349 (2009). We do not purport to provide an authoritative exposition on the scope or limits of the license exception in the Gun-Free School Zones Act. We simply hold that the license exception includes at least some ambiguity given the unique facts of this case, requiring that we consider the rule of lenity and the presumption in favor of scienter as articulated in Rehaif. Here, the rule of lenity, the presumption in favor of scienter, and the principles articulated in Rehaif coalesce around one central point: fair notice. And Metcalf did not have that fair notice. We therefore conclude that the district court erred by declining to dismiss Metcalf’s indictment.
