This story is making the rounds today about a man named Gabriel who was arrested under the Federal Gun Free School Zone Act, which prohibits firearms of any kind within 1,000 feet of a school. There’s so much wrong with this situation that I don’t know where to begin. Let’s start with the people who think the 2A is important, but not in this case (from the article):

“I do believe that the guy has a right to his choice if he wants to bear arms great,” said Katy Hoffman, a Broadwater school parent. “But he shouldn’t be posted outside of a school where he could see children.”

….

“Everybody has a right to bear arms and protect their property, protect their family,” said Bradley McGrady, a neighbor. “Second amendment but bearing arms like that is totally wrong here or anywhere.”

It’s very disappointing that there are Montanans who think so little of the Second Amendment that they’d make those statements. We are clearly losing the culture war. What these strident 2A supporters are saying is that there is a right to bear arms, unless you live within 1,000 feet of a school, in which case that right disappears. Gabriel was arrested for possessing a firearm on the public property (the sidewalk) in front of his house, which happens to be across the street from a school.

Let’s take that logic a little farther. How can Gabriel possess a firearm on his own property if he is prohibited from passing through the public property surrounding his property with a firearm? How can he bear arms if he can’t leave his property with arms?

But surely this is a corner case, right? Not many people live within 1,000 feet of a school boundary in Montana, right? Check out this map of Missoula from the CPRC:

The problem is that the Federal Gun Free School Zone Act prohibits firearms of any kind within 1,000 feet of a school ground, and not the center of the school, but the edge of the school property. “School” is defined as K-12 and includes public schools, private schools, parochial schools, and in some places possibly home schools. 

The CPRC article was trying to point out that constitutional carry wouldn’t make much of a change. But it goes far beyond that. For anyone in those green areas, the standard applied to Gabriel means that they do not have the RKBA. They live in a gun free zone. They can’t pass through the public areas around their homes with firearms without violating the federal law. Eyeballing it, I’d say that according to federal law, a third of our cities and towns in Montana are gun free zones.

There have been comments in social media along the lines of “what he was doing was ok, as long as he wasn’t brandishing.” Many Montanans are under the impression that it is illegal to “brandish” or “display” a firearm in Montana. Many other states have such laws. They also have the common law offense of “Going Armed to the Terror of the People.” No so in Montana. Here, you can go armed in public and it doesn’t matter how other people feel about it. The word “brandish” does not appear in the MCA. But we do have MCA 45-3-11:

45-3-111. Openly carrying weapon — display. (1) Any person who is not otherwise prohibited from doing so by federal or state law may openly carry a weapon and may communicate to another person the fact that the person has a weapon.

(2) If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon. [NB: emphasis added]

I am not a lawyer, don’t play one on TV, blah, blah, blah. But I read 45-3-111 to mean that you can draw on someone to warn them away if you reasonably believe they mean you bodily harm. And that doesn’t just mean grave injury or deadly harm. Clearly you can march around with a rifle if you want to in Montana.

I cannot fathom a way that Federal Gun Free School Zone Act will pass the Bruen test:

That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department…

The Federal Gun Free School Zone Act may be able to get away with the restriction on guns on school grounds under Bruen (although I think there are serious 10th amendment issues with this), but not the 1,000 foot radius. There is no historical record at the time of the founding of anything even remotely covering that. The logic that says you can’t consider all of Manhattan for the sensitive zone would also apply to a third of a city.

My hope is that Gabriel was seeking to become a plaintiff to get this ridiculous law struck down, and that the Billings PD asked the feds to get involved at his request. From what was reported, he wasn’t threatening anyone and wasn’t being unsafe in any way. He might be someone with the intestinal fortitude to stand up for what is right. If that’s so, then Bravo, Sir!

If he’s not, then at least I hope he gets a good Montana gun lawyer and not just a criminal defense lawyer who doesn’t understand the constitutional issues at stake here. Gabriel, if you’re reading this, I have lawyer recommendations. Register for an account on the blog and I’ll contact you directly.