United States v. Metcalf

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-4818

D.C. No.

Plaintiff - Appellee,

1:23-cr-00103-

SPW-1

v.

GABRIEL COWAN METCALF,

OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Argued and Submitted June 12, 2025

Portland, Oregon

Filed September 23, 2025

Before: Mary M. Schroeder, John B. Owens, and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge VanDyke;

Dissent by Judge Schroeder

2 USA V. METCALF

SUMMARY*

Criminal Law

The panel 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.

Metcalf argued that he holds a license to possess a

firearm within a school zone pursuant to Montana Code

section 45-8-360, which qualifies him for the state or local

license exception in § 922(q)(2)(B)(ii) of the Gun-Free

School Zones Act.

The panel held that Metcalf’s indictment must be

dismissed. The Gun-Free School Zones Act excepts from its

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.” The parties did not dispute that Metcalf holds a

license pursuant to section 45-8-360. Instead, they disputed

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, the panel concluded that Metcalf

offered at least a plausible reading of the exception in

§ 922(q)(2)(B)(ii), such that when factoring in the canon of

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. METCALF 3

constitutional avoidance and the rule of lenity, Metcalf

lacked the appropriate notice to be convicted of violating the

Gun-Free School Zones Act. The district court therefore

erred by declining to dismiss the indictment. 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).

Because the panel concluded that Metcalf’s appeal is

resolved by virtue of the absence of fair notice, the panel did

not address Metcalf’s argument that his conviction violates

his Second Amendment rights.

Judge Schroeder dissented. She wrote that the majority

essentially agrees with the district court that the Constitution

was not violated and that the federal statute was violated, but

reaches its conclusion that the indictment must be dismissed

by means of a tortured application of lenity and scienter

principles to create an exception in Metcalf’s particular case,

because the local police did not charge him with violating

any state law.

4 USA V. METCALF

COUNSEL

Thomas K. Godfrey (argued), Zeno B. Baucus, and Tim

Tatarka, Assistant United States Attorneys; Kurt G. Alme

and Jesse A. Laslovich, United States Attorney; Office of the

United States Attorney, United States Department of Justice,

Billings, Montana; for Plaintiff-Appellee.

Russell A. Hart (argued) and Edward Werner, Assistant

Federal Public Defenders; Rachel Julagay, Federal Public

Defender, Federal Defenders of Montana, Billings,

Montana; for Defendant-Appellant.

C. D. Michel, Joshua R. Dale, and Konstadinos T. Moros,

Michel & Associates PC, Long Beach, California, for Amici

Curiae California Rifle & Pistol Association, Incorporated,

Second Amendment Law Center, Inc., Minnesota Gun

Owners Caucus, The Second Amendment Foundation,

Second Amendment Defense and Education Coalition,

LTD., and Federal Firearms Licensees of Illinois, Inc..

Michael D. McCoy and Robert A. Welsh, Mountain States

Legal Foundation, Lakewood, Colorado, for Amicus Curiae

Mountain States Legal Foundation’s Center to Keep and

Bear Arms.

Erik Fredericksen, Janet Carter, and William J. Taylor Jr.,

Everytown Law, New York, New York, for Amici Curiae

Everytown for Gun Safety.

USA V. METCALF 5

OPINION

VANDYKE, Circuit Judge:

Gabriel Cowan Metcalf lives in Billings, Montana,

across the street from a public elementary school. For

several days in August 2023—before the schoolyear

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).

Metcalf moved to dismiss the indictment against him on

statutory and constitutional grounds. First, he argued that he

holds a license to possess a firearm within a school zone

pursuant to Montana Code section 45-8-360, which qualifies

him for the state or local license exception in

§ 922(q)(2)(B)(ii) of the Gun-Free School Zones Act.

Second, he argued that § 922(q)(2)(A) violates his Second

Amendment rights under New York State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1 (2022). The district court denied

Metcalf’s motion to dismiss the indictment. Metcalf then

pled guilty, reserving the right to appeal the denial of his

motion to dismiss.

On appeal, we hold that Metcalf’s indictment must be

dismissed. The Gun-Free School Zones Act excepts from

6 USA V. METCALF

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.

I. Background

Metcalf is a resident of Billings, Montana, where he has

lived with his mother since 2011. Their home lies directly

across the street from Broadwater Elementary School, a

public elementary school. Since at least 2022, their former

neighbor, David Carpenter, repeatedly stalked and

threatened Metcalf and his mother. Metcalf’s mother

obtained a protection order against Carpenter from a

USA V. METCALF 7

Montana state court in September 2022. But even after

Carpenter was served with the protection order, he continued

to violate it, including by passing through the alley behind

their home, yelling at Metcalf, and spraying pepper spray

into Metcalf’s face. Carpenter was charged with violating

the protection order in March 2023 and has since been

convicted of a felony for these violations. Even after the

initiation of the charge, however, Carpenter continued to

violate the protection order.

In response to Carpenter’s continued threats and

repeated protection order violations, Metcalf began carrying

a shotgun with him when he left the house, including when

he worked in the yard or left his property. Even though he

did so while Broadwater Elementary was out of session for

the summer, some Billings residents were concerned to see

him outside with his shotgun near the elementary school. On

August 2, 2023, a passerby reported to the Billings police

that Metcalf was “pacing in front of his house with a rifle.”

A police detective following up on the report saw Metcalf

walk off his property with the firearm to a nearby property.

Between August 11, 2023, and August 17, 2023, several

others reported to the police that Metcalf was carrying his

firearm while walking in his yard, on the sidewalk, and down

the street.

Billings police officers visited Metcalf’s home multiple

times throughout this period, requesting that he stop carrying

his firearm on or off his property. Metcalf told them that he

was “patrolling” outside of his home to protect himself and

his mother. He also reports that the officers told him that it

was not unlawful to arm himself. The Billings police asked

that Metcalf commit to only patrolling outside of school

hours, but Metcalf would not do so.

8 USA V. METCALF

Metcalf then called the FBI, “stating that the Billings

police [were] harassing him and [he] wished to speak to a

Federal Officer.” Shortly after, on August 17, 2023, two

ATF agents followed up with Metcalf regarding his call to

the FBI. During his conversation with the ATF agents,

Metcalf expressed his concerns about local law enforcement,

their reaction to Carpenter’s repeated violations of the

protection order, and their hostility to the exercise of his

right to carry his firearm. Metcalf also explained “how he

has researched the law pertaining to firearms” and “went to

great lengths to articulate that he follows the law.” In

response to questioning by the federal agents, Metcalf then

explained that he had carried his firearm on the sidewalk in

front of his home, including to patrol around the block a few

times each week and to escort his mother to her work down

the street. The ATF agents asked Metcalf whether he knew

he was in a school zone, then informed him that there was a

federal law prohibiting firearm possession in a school zone.

The record does not show any instances of Metcalf leaving

his property with his firearm after this call on August 17,

2023.

On August 21, 2023, the district court issued a warrant

for Metcalf’s arrest and charged him with unlawfully

possessing a firearm in a school zone. Metcalf was arrested

the following day, shortly before the school year began. He

was then indicted on September 14, 2023. The indictment

included a single count of violating § 922(q)(2)(A), which

prohibits the possession of a firearm in a school zone.

Metcalf moved to dismiss the indictment. He argued for

dismissal on two grounds: (1) Section 922(q)(2)(A) does not

apply to his conduct because he was licensed under Montana

law to carry a firearm; and (2) Section 922(q)(2)(A) violates

the Second Amendment.

USA V. METCALF 9

The district court denied Metcalf’s motion to dismiss. It

first held that Metcalf’s license to carry under Montana law

did not qualify for the state or local license exception in

§ 922(q)(2)(B)(ii), and thus Metcalf was not exempted from

the Gun-Free School Zones Act’s prohibitions. Next, the

district court held that § 922(q)(2)(A) was not

unconstitutional under the Second Amendment.

Metcalf then pled guilty with the benefit of a written plea

agreement reserving his right to appeal the district court’s

denial of his motion to dismiss. At his plea hearing Metcalf

did contest that “at the time [he] did not realize that [he] was

in a school zone,” but the district court told him that

“whether he knew that [he was in a school zone] or not is not

a defense” to the count in the indictment.

On August 2, 2024, Metcalf was sentenced to three years

of probation. But because Metcalf was convicted of a

felony, he is also permanently barred from possessing

firearms, which he acknowledged during his plea hearing.

See § 922(g)(1). Metcalf timely appealed on August 6,

2024.

II. Jurisdiction & Standard of Review

We have jurisdiction over the district court’s final

judgment under 28 U.S.C. § 1291. We review de novo a

district court’s decision of whether to dismiss an indictment

based on its interpretation of a federal statute. United States

v. Olander, 572 F.3d 764, 766 (9th Cir. 2009). We also

review de novo questions of statutory interpretation. Id.

III. Discussion

The Gun-Free School Zones Act broadly prohibits the

knowing possession of any firearm within 1,000 feet of a

public, private, or parochial, primary or secondary school.

10 USA V. METCALF

See 18 U.S.C. §§ 921(a)(26)–(27), 922(q)(2)(A). 1 This

prohibition “does not apply to the possession of a firearm,”

however:

if the individual possessing the firearm is

licensed to do so by the State in which the

school zone is located or a political

subdivision of the State, and the law of the

State or political subdivision requires 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).

The parties do not dispute that Metcalf was licensed by

the state of Montana to possess a firearm in a school zone.

Montana Code section 45-8-360 provides that:

In consideration that the right to keep and

bear arms is protected and reserved to the

people in Article II, section 12, of the

Montana constitution, a person who has not

1

18 U.S.C. § 922(q)(2)(A) provides in full that “[i]t shall be unlawful

for any individual knowingly to possess a firearm that has moved in or

that otherwise affects interstate or foreign commerce at a place that the

individual knows, or has reasonable cause to believe, is a school zone.”

Section 921(a)(26), in turn, defines a “school zone” as any place “in, or

on the grounds of, a public, parochial or private school” or any location

“within a distance of 1,000 feet from the grounds of a public, parochial

or private school.” And § 921(a)(27) defines a “school” as “a school

which provides elementary or secondary education, as determined under

State law.”

USA V. METCALF 11

been convicted of a violent, felony crime and

who is lawfully able to own or to possess a

firearm under the Montana constitution is

considered to be individually 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.

Mont. Code § 45-8-360. Because Metcalf was not

previously convicted of a violent felony and was otherwise

able to lawfully own or possess a firearm under the Montana

Constitution, he holds this state license.

The parties do, however, 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

12 USA V. METCALF

principles underlying the Supreme Court’s decision in

Rehaif, and the presumption in favor of scienter.

A. Metcalf offers a plausible reading of

§ 922(q)(2)(B)(ii), under which Montana Code

section 45-8-360 meets its requirements.

We first look to whether Metcalf has offered a plausible

reading of the license exception to the Gun-Free School

Zones Act, § 922(q)(2)(B)(ii). In doing so, we “begin, ‘as

always,’ with the text of the statute … presum[ing] that

Congress ‘says in a statute what it means and means in a

statute what it says there.’” Khatib v. County of Orange, 639

F.3d 898, 901–02 (9th Cir. 2011) (en banc) (citations

omitted). While “the plain meaning of a statute controls

where that meaning is unambiguous,” we must look beyond

the text if the text is ambiguous. Id. at 902.

Metcalf has 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.” 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.”

The district court adopted the government’s reading,

concluding that the parties had not disputed that

§ 922(q)(2)(B)(ii) is unambiguous. In its view, the “plain

text” of the statute “requires, at a minimum, that the state

USA V. METCALF 13

require some kind of process for law enforcement to

determine whether a person is qualified to own a firearm

before issuing a license.” So, per the district court,

“Montana Individual Licensure does not meet this

requirement because it automatically ‘consider[s]’ every

person in the state to be licensed then claws back licensure

from those who have committed violent felonies or are

disqualified by the Montana Constitution.”

We agree that the district court’s reading of

§ 922(q)(2)(B)(ii) is the better reading of the statute. But we

do not agree that this reading is the only plausible reading or

that the statute is unambiguous. Metcalf also offers a

plausible reading.2

Metcalf’s plausible reading of § 922(q)(2)(B)(ii) first

flows from a permissible definition of the word “verify,” as

that term is used in the statute’s requirement that a state

“verify” that an individual is qualified to receive a license.

Both the government and district court seemed to equate the

act of “verify[ing]” with conducting an individualized

background (or qualifications) check. A background check

is certainly one way of verifying that an individual is

qualified to hold a license. But it is not the only way of doing

so. See United States v. Tait, 202 F.3d 1320, 1324 (11th Cir.

2000) (rejecting government’s argument that Alabama’s

verification was inadequate because it did “not require its

licensing agents to conduct background checks”).

2

The dissent concludes from our acknowledgement that we “essentially

agree[] with the district court … that the federal statute was violated.”

That’s misleading. As we explain below, the applicable principles of

statutory interpretation favor Metcalf’s plausible—albeit less natural—

construction in light of the facts of this case, so Metcalf cannot be

prosecuted for having violated the statute.

14 USA V. METCALF

Rather, dictionary definitions of “verify” explain that the

word can mean something other than just conducting a

background check. The district court noted that “[t]he

Oxford English Dictionary defines ‘verify’ as to ‘assert,

affirm, or confirm, as true or certain.’” Using this definition,

the district court concluded that § 922(q)(2)(B)(ii) required

that a state “confirm as true or certain” through “some kind

of process” that an individual is qualified to own a firearm.

That is certainly a plausible reading of the word “verify”—

and, again, perhaps even the most natural reading. But it is

not the only reading. The dictionary defines the act of

“verify[ing]” as “assert[ing]” something “as true or certain.”

Verify, Oxford English Dictionary (3d ed.). Applying this

definition, as Metcalf argues, the state of 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.

The sixth edition of Black’s Law Dictionary—published

in 1990, the same year that the Gun-Free School Zones Act

was enacted—also supports Metcalf’s alternative reading of

“verify.” This dictionary’s definitions include: “to prove to

be true; to confirm or establish the truth or truthfulness of;

… to affirm….” Verify, Black’s Law Dictionary 1561 (6th

ed. 1990). These definitions of “verify” support Metcalf’s

proffered interpretation by confirming that the term could be

understood as extending to a state’s actions that “establish”

or “affirm” that an individual who meets certain

qualifications is deemed licensed, as Montana did here when

enacting section 45-8-360.

USA V. METCALF 15

So “verifying” does not necessarily require “ensur[ing]”

via some “licensing process” that an individual is qualified

to possess a firearm, as the district court concluded. Rather,

“verifying” can also include an affirmative statement, or

assertion, establishing an individual’s qualification to bear a

firearm. And the state of Montana made just such an

assertion here. See Mont. Code § 45-8-360 (asserting that “a

person who has not been convicted of a violent, felony crime

and who is lawfully able to own or to possess a firearm under

the Montana constitution is considered to be individually

licensed and verified by the state of Montana”).

The government emphasizes the temporal requirement in

§ 922(q)(2)(B)(ii) that a state must verify that an individual

is qualified “before an individual obtains a license.” But that

begs the question: What action must be done before the

individual obtains a license? Is it some individualized

“licensure process” by which state officials confirm that an

individual meets the requirements for licensure, as the

district court concluded? Or could it be a state’s assertion

that certain individuals are considered qualified, if they meet

certain requirements, as Montana did here? See Mont. Code

§ 45-8-360. If the latter—which, as just explained, is at least

consistent with dictionary definitions of “verify”—then the

Montana Legislature did make its assertion “before” Metcalf

was granted a state license when the legislature passed

section 45-8-360 into law in 1995.

Metcalf’s reading of the statute also finds support in the

statutory definition of “law enforcement authorit[y].”

Congress defined “local law enforcement authority” in

§ 921(a)(36) as “a bureau, office, department or other

authority of a State or local government or Tribe that has

jurisdiction to investigate a violation or potential violation

of, or enforce, a State, local, or Tribal law.” Thus, for the

16 USA V. METCALF

license exception in the Gun-Free School Zones Act, the

statute defers to a state’s determination as to who its law

enforcement authorities are, based on their authority to

investigate or enforce state laws.

Montana law does vest the state legislature with

investigative authority. See 2023 Mont. Laws 2229

§ 1(1)(a), (b) (“Pursuant to … the Montana constitution, the

legislative power is vested in the legislature…. The

constitutional legislative power includes the legislature’s

broad power to investigate any subject related to enacting

law, the implementation of enacted law, and the expenditure

of money appropriated by the legislature.”). The Montana

Legislature has explained that “[t]he broad scope and

application of the legislature’s investigative powers include

but are not limited to the power to investigate … matters

concerning the administration of existing laws, proposed

laws, or potentially necessary laws.” Id. § 1(2)(d). Because

this broad state legislative authority can be construed to

include the authority to “investigate a violation or potential

violation of” state law, § 921(a)(36), the legislature arguably

fits within the definition of a “law enforcement authority” in

the license exception to the Gun-Free School Zones Act,

§ 922(q)(2)(B)(ii).

We recognize that the legislature might not seem to be a

“law enforcement authority” in the ordinary usage of that

term. But the ordinary usage is not what we must look to; it

is Congress’s. We cannot disregard the definition Congress

set out in § 921(a)(36). See Fox v. Standard Oil Co. of N.J.,

294 U.S. 87, 96 (1935) (“[D]efinition by the average man or

even by the ordinary dictionary with its studied enumeration

of subtle shades of meaning is not a substitute for the

definition set before us by the lawmakers with instructions

to apply it to the exclusion of all others.”).

USA V. METCALF 17

Moving beyond § 922(q)(2)(B)(ii)’s text, Metcalf’s

reading of the license exception also finds support in the

statutory context. Throughout 18 U.S.C. § 922 Congress has

deferred to state determinations and state findings when

concluding whether the federal offenses and exceptions are

satisfied. See Caron v. United States, 524 U.S. 308, 313

(1998). For example, whether the government can prove a

violation of § 922(g)(1) depends upon state findings and

state criminal definitions incorporated by virtue of

§ 921(a)(20). See id. (noting § 921(a)(20) “define[s]

convictions, pardons, expungements, and restorations of

civil rights by reference to the law of the convicting

jurisdiction”). State law also provides the source of law for

determining restoration of firearm rights and for determining

whether a former felon is too dangerous to possess a firearm.

See Tait, 202 F.3d at 1324 n.6. As just discussed, the

definition of “local law enforcement authority” defers to a

state’s determination as to who its law enforcement

authorities are. § 921(a)(36). And consistent with these

other examples, Congress deferred to state licensing

requirements as part of the Gun-Free School Zones Act.

Tait, 202 F.3d at 1324. Thus Metcalf’s reading of the license

exception is consistent with Congress’s repeated deference

to states’ findings and laws throughout the entirety of § 922.3

The support that Metcalf’s reading finds in the text and

context of the license exception is buttressed by the Supreme

3

Within this context, we disagree with our dissenting colleague that

“[t]his statute is not ambiguous.” We must read § 922(q)(2)(B)(ii) as a

whole, see Guam v. United States, 593 U.S. 310, 316 (2021), and when

we do, we find plausible support for Metcalf’s proposed interpretation.

That renders the statute ambiguous. See Alaska Wilderness League v.

U.S. E.P.A., 727 F.3d 934, 938 (9th Cir. 2013) (“A statute is ambiguous

if it is susceptible to more than one reasonable interpretation.”).

18 USA V. METCALF

Court’s caution that, absent a clear statement to the contrary,

federal courts should avoid interfering with state

governments’ internal decisions under the guise of statutory

interpretation. See Gregory v. Ashcroft, 501 U.S. 452, 460

(1991) (“Through the structure of its government, and the

character of those who exercise government authority, a

State defines itself as a sovereign.”); Atascadero State Hosp.

v. Scanlon, 473 U.S. 234, 242 (1985), superseded by statute

on other grounds as stated in Lane v. Pena, 518 U.S. 187,

197–200 (1996) (applying clear statement rule for

congressional abrogation of a state’s immunity from suit,

given the “fundamental nature of the interests implicated”).

The Montana legislature has made clear that it enacted its

state license to comply with federal law, and it did so by

directly licensing individuals by statute, rather than by

delegating authority to separate state or local agencies. See

Mont. Code § 45-8-360. Because Congress did not make a

clear statement prohibiting Montana’s decision to act

directly through the legislature, rather than through

delegated authority to other state officials, Metcalf’s

proffered interpretation finds support in these clear

statement rules. See Gregory, 501 U.S. at 460; Atascadero

State Hosp., 473 U.S. at 242.

Metcalf’s reading of the statute also finds support in the

only circuit precedent addressing § 922(q)(2)(B)(ii)’s

license exception. In United States v. Tait, the government

made a similar argument to the one it makes here,

contending that “Tait’s license [was] void for purposes of

§ 922(q)(2)(B)(ii) … because Alabama’s requirements for

verifying an applicant[’s] qualifications are too relaxed to

ever qualify their licensees for § 922(q)(2)(B)(ii)

USA V. METCALF 19

protections.” 202 F.3d at 1324. 4 The Eleventh Circuit

rejected that argument, explaining that even though “the

Alabama law is extremely lenient, 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.” Id. The court concluded that “Alabama

is free to set forth its own licensing requirements, and

Congress chose to defer to those licensing requirements” for

its exception. Id. So the court held that the license exception

applied to Tait. Id. To be sure, Alabama’s statute did

provide for the issuance of individual licenses upon

application, unlike Montana’s statute at issue here, which

does not require individualized applications. Compare Ala.

Code § 13A-11-75 (1975), with Mont. Code § 45-8-360.

Nevertheless, Metcalf’s reading of the license exception is

consistent with the Eleventh Circuit’s discussion of the

exception—which was the only circuit precedent addressing

that exception at the time he was charged with violating

§ 922(q)(2)(A).

4

The Alabama statute at issue in Tait provided:

The sheriff of a county may, upon

application of any person residing in

that county, issue a qualified or

unlimited license to such person to

carry a pistol ... if it appears that the

applicant has good reason to fear

injury to his person or property or

has any other proper reason for

carrying a pistol, and that he is a

suitable person to be so licensed.

Ala. Code § 13A-11-75 (1975); see also Tait, 202 F.3d at 1324.

20 USA V. METCALF

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

USA V. METCALF 21

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.”

United States v. Hansen, 599 U.S. 762, 781 (2023) (quoting

Jennings v. Rodriguez, 583 U. S. 281, 296 (2018)).5

The rule of lenity offers additional support for Metcalf,

particularly when read in conjunction with the canon of

constitutional avoidance. Davis, 588 U.S. at 464–65 & n.8.

The rule of lenity provides that “ambiguities about the

breadth of a criminal statute should be resolved in the

defendant’s favor.” Id. at 464. “[I]t is founded on ‘the

tenderness of the law for the rights of individuals’ to fair

notice of the law.” Id. (quoting United States v. Wiltberger,

18 U.S. 76, 95 (1820)).

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

5

The dissent asserts that we “essentially agree[] with the district court

that the Constitution was not violated.” We do not. We decline to reach

any conclusion about the district court’s rejection of Metcalf’s Second

Amendment argument.

22 USA V. METCALF

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. McBoyle v. United States, 283 U.S. 25, 27

(1931); see also Bouie v. City of Columbia, 378 U.S. 347,

351 (1964) (“The ... principle is that no man shall be held

criminally responsible for conduct which he could not

reasonably understand to be proscribed.” (citation omitted)).

B. The presumption in favor of scienter and the

principles underlying Rehaif support Metcalf’s

motion to dismiss.

“[I]n keeping with the common-law tradition and with

the general injunction that ‘ambiguity concerning the ambit

of criminal statutes should be resolved in favor of lenity,’”

the Supreme Court “has on a number of occasions read a

state-of-mind component into an offense even when the

statutory definition did not in terms so provide.” United

USA V. METCALF 23

States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978)

(quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).

One such occasion was in Rehaif v. United States, in which

the Court addressed a conviction under § 922(g)(5) for the

knowing possession of a firearm by an individual unlawfully

present in the United States. 588 U.S. at 227. The Supreme

Court concluded that the “knowingly” requirement in the

statute extended not just to the possession element of the

offense but also to the status element. Id. at 230. That is,

the government had to prove that Rehaif knew he was “an

alien ... illegally or unlawfully in the United States.” Id. The

Court thus reversed Rehaif’s conviction because the

government had not met its burden of showing that Rehaif

knew his “status as an alien ‘illegally or unlawfully in the

United States.’” Id. at 235 (quoting § 922(g)(5)), 237. The

Court applied the presumption in favor of scienter to extend

the mens rea to each element of the offense, explaining that

“even when Congress does not specify any scienter in the

statutory text,” courts must “start from a longstanding

presumption, traceable to the common law, that Congress

intends to require a defendant to possess a culpable mental

state regarding ‘each of the statutory elements that

criminalize otherwise innocent conduct.’” Id. at 228–29

(citation omitted).

The reasons for such a rule are clear enough. It “reflects

the basic principle that ‘wrongdoing must be conscious to be

criminal.’” Elonis v. United States, 575 U.S. 723, 734

(2015) (quoting Morissette v. United States, 342 U.S. 246,

252 (1952)). “Scienter requirements advance this basic

principle of criminal law by helping to ‘separate those who

understand the wrongful nature of their act from those who

do not.’” Rehaif, 588 U.S. at 231 (quoting United States v.

X-Citement Video, Inc., 513 U.S. 64, 72–73 n.3 (1994)). The

24 USA V. METCALF

rule is “as universal and persistent in mature systems of law

as belief in freedom of the human will and a consequent

ability and duty of the normal individual to choose between

good and evil.” Morissette, 342 U.S. at 250. The Supreme

Court has thus applied the rule or its corollaries in a variety

of cases concerning various criminal statutes.6

Metcalf finds support in these principles underlying the

presumption in favor of scienter and the Court’s decision in

Rehaif.7 As already explained, Metcalf has offered at least a

6

See, e.g., Morissette, 342 U.S. at 271 (defendant must know someone

else still had property rights in property to “knowingly convert” property

of the United States); Liparota v. United States, 471 U.S. 419, 433 (1985)

(defendant must know facts that made the use of food stamps

unauthorized to be convicted for knowingly possessing or using food

stamps in an unauthorized manner); Posters ‘N’ Things, Ltd. v. United

States, 511 U.S. 513, 524 (1994) (defendant must “kn[o]w that the items

at issue are likely to be used with illegal drugs” to be convicted of selling

drug paraphernalia); Staples v. United States, 511 U.S. 600, 619 (1994)

(defendant must know that his weapon had automatic firing capability to

be convicted of possession of such a weapon); X-Citement Video, 513

U.S. at 68–69, 73 (defendant must know the age of performers to be

convicted under statute criminalizing the distribution of visual depictions

of minors engaged in sexually explicit conduct).

7

After oral argument, we asked the parties to file supplemental briefs

addressing the impact, if any, of the Supreme Court’s decision in Rehaif

on our decision in this case. See Dkt. No. 38. The government argued

that Metcalf had waived any argument as to Rehaif because it was not

raised below and was not included in his limited appeal waiver. We

disagree. Metcalf did argue below on multiple occasions that he relied

on state law to possess the firearm and that he consulted law enforcement

about it. Indeed, the government even filed a motion in limine below

addressing these arguments, which the district court granted. While

Metcalf never specifically cited Rehaif in his briefing below, his failure

to do so is not fatal under our “claims not arguments” doctrine. See

United States v. Williams, 846 F.3d 303, 311 (9th Cir. 2016) (“[I]t is

claims that are deemed waived or forfeited, not arguments.” (citation

USA V. METCALF 25

plausible reading of the Gun-Free School Zones Act’s

license exception, which defers to the states to determine

who is qualified to hold a license and leaves up to the states

to decide how they wish to verify an individual’s

qualifications. See Tait, 202 F.3d at 1324 & n.6. To comply

with that statute, Montana set forth certain qualifications for

its licenses and conferred that license upon individuals who

met the qualifications; including Metcalf. See Mont. Code

§ 45-8-360. The government never disputed that Metcalf

qualifies for, and holds, that license. Further, Montana’s

statute explicitly asserted it was passed to comply with the

Gun-Free School Zones Act’s license exception and thus

exempted the licensed individuals from operation of the

Gun-Free School Zones Act’s prohibition. See id. (asserting

compliance with the “provisions regarding individual

licensure and verification in the federal Gun-Free School

Zones Act”).

Only after Metcalf was indicted did the district court—

in the first ever judicial decision addressing the efficacy of

Montana’s license—conclude that Montana’s law failed to

do what it said it did. But, as the Supreme Court explained

in Rehaif, “[a]ssuming compliance with ordinary licensing

requirements, the possession of a gun can be entirely

innocent.” 588 U.S. 232 (citing Staples, 511 U.S. at 611).

Metcalf did comply with Montana’s licensing requirements,

and thus, under the Supreme Court’s reasoning, his

possession of a gun on the sidewalk outside of his home was

entirely innocent. So under the unique circumstances of this

omitted)). Similarly, Metcalf’s arguments are not foreclosed by his

limited appeal waiver, as these arguments under Rehaif go to the

propriety of the district court’s order declining to dismiss the indictment,

which Metcalf reserved the right to appeal as part of his plea agreement.

26 USA V. METCALF

case, much like in Rehaif, Metcalf “lack[ed] the intent

needed to make his behavior wrongful” as the government

never alleged or argued that Metcalf had notice that his

possession of a firearm on the sidewalk outside his home was

unlicensed, and thus unlawful. Id. His behavior “[was]

instead … an innocent mistake to which criminal sanctions

normally do not attach.” Id. Affirming Metcalf’s conviction

under § 922(q)(2)(A) would thus undermine the principles

underlying the presumption in favor of scienter, which the

Supreme Court expounded upon in Rehaif.

IV. Conclusion

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

USA V. METCALF 27

notice. 8 And Metcalf did not have that fair notice. We

therefore conclude that the district court erred by declining

to dismiss Metcalf’s indictment.

Accordingly, the district court’s order denying the

dismissal of Metcalf’s indictment is REVERSED, and we

REMAND this case with direction to dismiss the

indictment.

8

Cf. Wooden v. United States, 595 U.S. 360, 389 (2022) (Gorsuch, J.,

concurring in the judgment) (“Lenity works to enforce the fair notice

requirement by ensuring that an individual’s liberty always prevails over

ambiguous laws.”); id. at 378 (Kavanaugh, J., concurring) (agreeing

with the “importance of fair notice in federal criminal law” but

concluding “that concern for fair notice is better addressed by … the

presumption of mens rea”).

28 USA V. METCALF

Schroeder, Circuit Judge, dissenting:

Gabriel Metcalf was patrolling the yard and street in

front of his house, openly carrying a rifle, and explaining he

was looking for incendiary devices. His conduct

understandably alarmed neighbors, including the folks in the

elementary school across the street, who repeatedly

contacted local police. The police lacked authority to arrest

him under any state law, but when the federal authorities

were contacted, they arrested him for violating 18 U.S.C.

§ 922(q)(2)(A).

Metcalf entered a conditional guilty plea and was

sentenced to probation with a condition that he not own a

firearm. This was a sensible and fair result.

On appeal, Metcalf contends the conviction violates his

constitutional rights and, alternatively, that he qualifies for

an exemption from the statute. The majority adopts neither

of Metcalf’s contentions. It essentially agrees with the

district court that the Constitution was not violated and that

the federal statute was violated, but nevertheless orders that

the district court should have dismissed the indictment. It

reaches this conclusion by means of a tortured application of

lenity and scienter principles to create an exception in

Metcalf’s particular case, because the local police did not

charge him with violating any state law.

The rule of lenity is a principle of statutory interpretation

that “applies only when a criminal statute contains a

‘grievous ambiguity or uncertainty.’” Ocasio v. United

States, 578 U.S. 282, 295 n.8 (2016) (citation omitted). This

statute is not ambiguous. And the majority does not purport

to provide an authoritative interpretation of it. Rather, the

USA V. METCALF 29

majority observes only that Metcalf may have a “plausible”

reading of the statute.

The principle of scienter, as enunciated by the Supreme

Court in Rehaif v. United States, 588 U.S. 225, 227 (2019),

is about the government’s burden to establish the

defendant’s knowledge of facts constituting the elements of

the crime. Courts have repeatedly rejected the argument that

Rehaif requires knowledge that the conduct violates a

criminal statute. See United States v. Singh, 979 F.3d 697,

727-28 (9th Cir. 2020); see also United States v. Trevino,

989 F.3d 402, 405 n.4 (5th Cir. 2021) (collecting cases).

The majority stretches these principles in Metcalf’s case

because it apparently views him to be a sympathetic person

who has been unjustly treated. The result leaves him free to

pick up arms and continue to frighten the neighbors, that

include the school across the street.

This, in my view, is not a just result and I therefore

respectfully dissent.