BILLINGS, MT – When the Montana Legislature set out to relax gun laws in 2021, the Republican-led effort wasn’t about eliminating gun-free school zones, it was to make it easier for residents to carry concealed weapons — something lawmakers believed aligned with the Second Amendment of the U.S. Constitution.

But the U.S. Ninth Circuit Court of Appeals said in a case involving a Billings man who was patrolling a neighborhood next to an elementary school that the Legislature may have created a legal loophole in the state that narrows gun-free school zones to the school properties themselves, which fall under the control of local school boards.

The concealed-carry law has become a sort of a law of unintended consequences: It effectually nullifies the gun-free zone around the schools, and it affects law enforcement officers as much as civilians.

The federal appeals court reasoned that the Montana Legislature uniquely created this loophole when it rewrote guns laws in such a way that all citizens, unless they have been otherwise convicted of certain crimes or deemed ineligible to own a gun, have the right to carry a concealed weapon. Concealed weapons are only barred in certain places, or if the property owners expressly prohibit them. Otherwise, the federal court ruled that most residents have a “presumptive” right to carry, rather than needing a concealed-carry permit issued by a state or local authority. This is often called “permitless carry,” or “constitutional carry,” because the courts and legislature have said the right to carry weapons is ensured by the Second Amendment and no further paperwork or permission is needed.

And it was because Gabriel Metcalf had this right that he routinely patrolled the busy neighborhood in central Billings, directly across from Broadwater Elementary, with a firearm, including a 20-gauge shotgun, worrying community members, teachers and parents. Billings Police were called dozens of times to the area on reports of a man with a gun wandering around or near the elementary school. And dozen of times, police spoke with Metcalf, but were unable to do much more than that, even when parents spoke out.

Metcalf told the police that he was patrolling his house and neighborhood because of an abusive former neighbor who had stalked him and his mother. Meanwhile, school officials put up a black tarp that covered a fence and the view of Metcalf’s house, and moved the students to a part of the playground area farthest away.

After dozens of calls, federal law enforcement officers were able to arrest Metcalf, alleging he had broken federal laws guaranteeing a gun-free school zone, usually a 1,000-foot area around a school prohibiting carrying firearms.

But the law grants exceptions for authorized school staff, law enforcement officers and those with concealed carry permits. And it’s for that reason that the Ninth Circuit says that because Montana grants every citizen the right, it must also mean that every citizen is authorized to carry within that buffer zone.

“Our decision is a narrow one,” the ruling said. “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.”

The U.S. Ninth Circuit Court dismissed charges against Metcalf, exonerating him as he challenged his arrest and prosecution. The court overturned the federal district court decision, saying that while it understood the concerns of the community, the Montana Legislature had created the loophole, and it would be Montana’s lawmakers who would have to close it, according to the ruling.

“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,” the ruling said. “Because Congress did not make a clear statement prohibiting Montana’s decision to act, the legislature, rather than through delegated authority other than state officials, Metcalf’s proffered interpretation finds support.”

Attorneys and lawmakers say the case, and the Montana Legislature, may have figured out how to essentially nullify gun-free school zones, a law that many Second Amendment enthusiasts have targeted for years, with mixed results.

The Daily Montanan spoke with several Billings school officials who acknowledged the loophole, but said they feared speaking publicly about the situation for fear of restarting the problem. They said since Metcalf was released, there hasn’t been any neighborhood patrolling with guns.

Still, attorneys and lawmakers say the issue remains, and in Montana, gun-free school zones have now shrunk to school property itself.

Jeffrey Weldon, a Billings attorney who specializes in school and education law, said that the ruling does change the buffer zone around the schools, but he stressed that control of school property hasn’t changed — that’s up to the local school boards, which are given latitude to set their own rules that must be obeyed, with or without a concealed-carry permit.

He said the gun-free school zones have had a number of challenges, including what a nearby property owner can do on their own property. He also said that many people who pass by schools with firearms locked in their cars could have also tripped over the technicality of the law.

“So the law has been limited already,” Weldon explained in an interview.

He said the new court ruling will have the biggest effect on law enforcement. That is, law enforcement won’t be able to do much if the same situation happens, worrying parents, teachers and neighbors.

For now, given the political climate in Montana, Weldon said that a fix would have to come from the Legislature, something that’s unlikely.

“The court said that the remedy is legislative,” Weldon said.

In Montana, the Legislature will not meet again till 2027 — a little more than a year. Even now, there seems to be little appetite to revisit the concealed carry laws, even with the ruling.

Rep. James Reavis, a Democrat whose district includes Broadwater Elementary in Billings, declined an interview request when contacted by the Daily Montanan. However, he did release a statement:

Sen. Mike Yakawich, a Billings Republican whose district also includes Broadwater Elementary, said he spoke with teachers, parents and administrators about the issue.

“They’re more skittish than a politician when it comes to this,” Yakawich said. “They do not see this as a problem.”

He said in Montana, seeing someone carry a firearm is normal. And he said he knows many people who carry a concealed firearm.

“This issue is not guns,” Yakawich said.

Yakawich said he knows first hand about gun violence. “South Side Mike,” a nickname he’s given himself, has been shot at twice while working on the city’s South Side as both an activist and city council member before moving to the Legislature. Both times, Yakawich noted a bullet nearly missed him. Both times, he said the gunfire was retribution for organizing marches against drug dealers and crime in a movement meant for neighbors to reclaim their neighborhoods.

“I do not advocate a change in the gun laws, but I advocate greater education about gun laws,” he said. “We have to accentuate the educational part of firearms.”

Yakawich suggested that concerned neighborhood residents around elementary schools organize, go door to door, and speak with residents about rights, but also about being more sensitive around schools.

“The problem is complex, and people who carry firearms are generally very respectable,” Yakawich said. “Then we look at behavioral health and a person who shoots another person has massive mental health issues. That person is an exception.

“If there is concern among parents, the question should be: How are we addressing mental health? It’s not just a man with a gun. It’s behavioral health issue, and there is no magic wand. It’s easier to pass a law than make people well.”

Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com.