Did the 9th Circuit Just Side With the Second Amendment?

Attorney William Kirk at Washington Gun Law opened his latest video with a line you don’t hear often: the Ninth Circuit tossed a federal gun conviction. He called it “as rare as a unicorn that craps ice cream.” His point wasn’t that the court embraced the Second Amendment outright. Instead, he told viewers the panel never reached the 2A question. The judges used a tight, legal path – statutory interpretation – to undo the case. That rare route matters because it shows how wording, not politics, can decide a gun case in a major federal court.

The Case And The Setting

The ruling is United States v. Metcalf, a published decision filed on September 23, 2025. Judge Lawrence VanDyke wrote the opinion, joined by Judge John Owens, with a dissent from Judge Mary Schroeder. The case started in Billings, Montana. According to the court, Gabriel Metcalf sometimes patrolled outside his home with a shotgun, and his house sits across from an elementary school. Local police interacted with him more than once, but didn’t charge him under state law and even told him he was complying with Montana law. Later, after he called the FBI, federal agents got involved and a federal indictment followed.

What The Law Actually Says

As the Ninth Circuit explains, the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A), generally bans knowing possession of a firearm within 1,000 feet of a school. But there’s a key exception in § 922(q)(2)(B)(ii): if a person is “licensed” by the state, and if – before granting that license – state “law enforcement authorities … verify” the person is qualified, then the federal ban doesn’t apply. That little word “verify” ends up doing a lot of work. Kirk told viewers the fight came down to what Congress meant by that single term.

Montana’s Unique “License And Verify” Law

Montana is a constitutional carry state. To mesh with the federal school-zone rule, the legislature passed Montana Code § 45-8-360. In simple terms, it says a person not convicted of a violent felony and otherwise lawful to possess a firearm “is considered to be individually licensed and verified” by the state for the federal exception. Kirk stressed this was Montana’s way of saying: our citizens who are lawful to possess are, by statute, licensed and verified – no separate paper card or background check needed just for the school-zone carveout.

Kirk’s Framing: Not A Bruen Win

Kirk was clear: this isn’t a sweeping Second Amendment victory. The Ninth Circuit did not decide whether the school-zone law violates Bruen or Heller. Instead, the panel used classic tools – text, context, and canons like the rule of lenity and the presumption in favor of scienter – to say the indictment should be dismissed. Washington Gun Law framed the decision as a lesson in how precise words can shield a defendant when Congress writes a criminal rule with more than one reasonable reading.

The Word That Decided The Day: “Verify”

Judge VanDyke’s opinion dug into what “verify” can mean. The government and the district court read it to require an individualized, pre-issuance check by law enforcement before a license exists. But the Ninth Circuit said that’s not the only plausible reading. Dictionaries allow “verify” to mean assert, affirm, or confirm. The Montana legislature “verified” by passing a statute that affirms who counts as licensed and qualified. Because both readings are plausible, the panel said the statute is ambiguous on this point.

Fair Notice, Lenity, And Scienter

Here the canons kicked in. Kirk walked viewers through the rule of lenity: when a criminal law is reasonably read two ways, courts pick the one favoring the defendant. The Ninth Circuit added another layer – fair notice. The opinion recounted how local police told Metcalf he was okay under state law, and how Montana law itself told citizens they were “licensed and verified” for the federal exception. The court also leaned on the presumption in favor of scienter, citing the Supreme Court’s Rehaif decision: criminal statutes generally require knowledge of the facts that make conduct wrongful. If even the law’s “license” path was murky, punishing Metcalf here clashed with those notice and mens rea principles.

The Majority’s Narrow Holding

The panel reversed the district court and remanded with instructions to dismiss the indictment. Importantly, Judge VanDyke said the court was not reaching the Second Amendment claim because the fair-notice route resolved the appeal. He emphasized the holding is narrow – Montana’s approach is unusual, few if any states do it this way, and the decision does not define the outer limits of the federal exception. The ruling, as the Ninth Circuit explained, rests on ambiguity, lenity, scienter, and constitutional avoidance working together in this specific factual setting.

The Dissent’s Warning

Judge Schroeder dissented. She wrote that the majority “essentially agrees” the federal statute was violated and that the Constitution was not, yet it dismisses anyway by stretching lenity and scienter “to create an exception” because locals didn’t charge state crimes. She argued the statute isn’t ambiguous and warned the outcome leaves Metcalf “free to pick up arms and continue to frighten the neighbors,” including the school across the street. Her view highlights a policy concern: when federal law draws a bright line around schools, courts shouldn’t blur it with forgiving canons.

What This Means For Gun Owners

This isn’t a blanket green light to carry near schools. The Ninth Circuit didn’t gut the Gun-Free School Zones Act. It read the federal exception alongside Montana’s unique statute and said the federal government didn’t give fair notice that Montana’s “legislative license” wasn’t good enough. As the court noted, Alabama’s licensing system in the Eleventh Circuit’s Tait case was lenient but still counted; Congress often defers to state choices in § 922. The lesson is technical but real: in permitless-carry states that attempt to meet the federal exception by statute, words like “verify” can make or break a case.

What Comes Next Procedurally

Kirk pointed out the Department of Justice could ask for en banc review at the Ninth Circuit. That wouldn’t be surprising, given Judge Schroeder’s dissent and the public-safety stakes around schools. If en banc is granted, the full court could revisit how to read “verify,” how far lenity should go, and whether Montana’s statute can count as “licensure” before any individualized check. For now, though, the panel’s published decision directs dismissal, and it stands as the Ninth Circuit’s current view in this narrow setting.

A Win On Process, Not Principle

What grabs me is the restraint. The Ninth Circuit didn’t opine on Bruen; it didn’t make new 2A doctrine. It went old-school: when Congress writes a criminal rule with an unclear exception, people must have fair notice. That’s healthy. Criminal law should warn plainly before it punishes. Whether you cheer or jeer the outcome, a system that prizes notice and mens rea is stronger and more trusted.

State Choices, Clear Words, Fewer Surprises

Montana tried to satisfy federal law with a broad, legislative “license.” The court said that move was at least plausible. That’s fascinating because it shows how state design can interact with federal text in unexpected ways. If Congress wants a background check, it can say “background check.” If it wants a paper license, it can say “issued permit.” Until then, courts will keep reading the words as written. Clearer drafting, federal and state, would cut down on gotchas, reduce fear around schools, and give citizens simple rules to follow.