Gun-Free School Zones Act of 1990

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Section 1702(b)(5) of Pub. L. 101-647 states: "Federal, State, and local authorities are encouraged to cause signs to be posted around school zones giving warning of prohibition of the possession of firearms in a school zone."
July 25, 2013 BATFE Letter Regarding GFSZA Effect on CCW Permit Holders (two pages) [1][2][3][4]

The Gun-Free School Zones Act (GFSZA, codified at 18 U.S.C. § 922(q)) is a federal United States law that prohibits any unauthorized individual from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a "school zone" as defined by 18 U.S.C. § 921(a)(25). Its formal title is the Gun-Free School Zones Act of 1990 and is sometimes referred to as the Gun-Free School Zones Act of 1995, possibly in reference to S. 890.

History[edit]

The Gun-Free School Zones Act of 1990 was originally passed as section 1702 of the Crime Control Act of 1990. It added 18 U.S.C. § 922(q); 18 U.S.C. § 922 itself was added by the Omnibus Crime Control and Safe Streets Act of 1968.

The Supreme Court of the United States subsequently held that the Act was an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution in United States v. Lopez, 514 U.S. 549 (1995). This was the first time in over half a century that the Supreme Court limited Congressional authority to legislate under the Commerce Clause.

Following the Lopez decision, President Clinton's Attoney General Janet Reno proposed changes to 18 U.S.C. § 922(q) that were adopted in section 657 of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104–208, 110 Stat. 3009, enacted September 30, 1996.[5] These minor changes required that the firearm in question "has moved in or otherwise affects interstate commerce".[6]

As nearly all firearms have moved in Interstate Commerce at some point in their lives, critics assert this was merely a legislative tactic to circumvent the Supreme Court's ruling.[5]

Challenges[edit]

The Supreme Court of the United States held that the original Act was an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution in United States v. Lopez, 514 U.S. 549 (1995). This was the first time in over half a century that the Supreme Court limited Congressional authority to legislate under the Commerce Clause.

Although the amended GFSZA has yet to be challenged in the United States Supreme Court, it has been reviewed and upheld by several United States Circuit Courts. In a 2005 Appellate case, United States v. Dorsey,[7] the minor changes of the revised law were specifically challenged. In the Dorsey case, the US Court of Appeals for the Ninth Circuit ruled that the minor changes were indeed sufficient to correct the issues that had caused the original 1990 law to be struck down in United States v Lopez, and they upheld Dorsey's conviction under the revised version of the law.

Other convictions upheld post-Lopez under the revised Gun Free School Zone Act include:

Provisions[edit]

18 U.S.C. § 922(q)(2)(A) states:

It 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.

18 U.S.C. § 922(q)(3)(A) states:

Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.

Exceptions[edit]

Pursuant to 18 U.S.C. § 922(q)(2)(B):

[18 U.S.C. § 922(q)(2)(A)] does not apply to the possession of a firearm—

(i) on private property not part of school grounds;

(ii) 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;

(iii) that is—

(I) not loaded; and

(II) in a locked container, or a locked firearms rack that is on a motor vehicle;

(iv) by an individual for use in a program approved by a school in the school zone;

(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;

(vi) by a law enforcement officer acting in his or her official capacity; or

(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

Pursuant to 18 U.S.C. § 922(q)(3)(B):

[18 U.S.C. § 922(q)(3)(A)] does not apply to the discharge of a firearm—

(i) on private property not part of school grounds;

(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;

(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or

(iv) by a law enforcement officer acting in his or her official capacity.

Definitions[edit]

Pursuant to 18 U.S.C. § 921(a)(25):

The term "school zone" means—

(A) in, or on the grounds of, a public, parochial or private school; or

(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

Pursuant to 18 U.S.C. § 921(a)(26) the term "school" means a school which provides elementary or secondary education, as determined under State law.

Penalty[edit]

18 U.S.C. § 924(a)(4) establishes the penalty for violating GFSZA:

Whoever violates the Act shall be fined not more than $5,000, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law.

A conviction under the GFSZA will cause an individual to become a "prohibited person" under the Gun Control Act of 1968. This will bar them from legally owning firearms for the rest of their life.[1][2][3]

Legal effects[edit]

Prohibition of unlicensed carry[edit]

Most states allow some form of unlicensed carry by people without criminal convictions.[8] This may be open-carry,[8] vehicle-carry,[9] or concealed carry without the need for a permit.[10] The Federal GFSZA prohibits unlicensed carry by making it a federal crime for an unlicensed individual to travel into a "Gun Free School Zone unless they meet one of the other criteria defined in Section 'B'." [1][2][3][4][11][12][13][14] The large number of K-12 schools in developed areas makes it difficult for an individual to travel any distance without entering a Gun Free School Zone.[1][2][4][11][12][14]

State reciprocity agreements[edit]

Although the Federal GFSZA does provide an exception for an individual licensed to carry a firearm, this exception only applies in the State that physically issued the permit.[1][2][3][4][11][14][15] All fifty States have provisions to issue concealed carry permits to citizens.[16] Most of these States also enter into reciprocity agreements with other States where each State agrees to recognize the other's concealed carry permits.[16] Because the Federal GFSZA requires the permit be issued by the State which the school zone is in,[1][2][3][4] it is difficult for a permit holder to travel outside their State of issuance to a reciprocating State without violating the Federal GFSZA.[1][2][4][11][14][15]

Off-duty police officers[edit]

The Law Enforcement Officers Safety Act (LEOSA), which was intended to entitle qualified law enforcement officers to carry weapons nation-wide, does not provide any exceptions to Federal Law per 18 U.S.C. § 926B. Although the GFSZA does provide an exception for a law-enforcement officer performing their official duties, it does not provide any protection for an off-duty officer.[13] An off-duty LEOSA qualified officer is unable to legally travel within one-thousand (1000) feet of any K-12 school while armed unless he/she has a valid carry license issued by that state.[11][13][14]

Discharging gun in school zone[edit]

Although the GFSZA allows a citizen to discharge a firearm on private property,[14] it prohibits discharge on public property in the Gun Free Zones by anyone except on-duty law enforcement and school security.[14] A carry permit never exempts an individual from the GFSZA discharge restrictions, even in the State that physically issued it.[1][2][3][4][14]

Guns in housing projects[edit]

The First Circuit Court of Appeals sustained a GFSZA conviction in the 2007 case of United States v Nieves-Castaño for an automatic firearm kept in a woman's apartment, which was part of a housing project (not private property) within 1000 feet of a school.[17]

Proposed amendments[edit]

On July 21, 2011 US Representative Ron Paul introduced H.R. 2613 which would repeal the Federal Gun Free School Zones Act. It died in committee.[18]

References[edit]

  1. ^ a b c d e f g h "CCL Reciprocity: Warning to those who travel and carry". Wisconsin Carry. Retrieved 22 February 2014. 
  2. ^ a b c d e f g h "What is the Federal Gun Free School Zones Act". Oklahoma Second Amendment Association. Retrieved 22 February 2014. 
  3. ^ a b c d e f "BATFLetterONGFSZ2013.pdf". Retrieved 22 February 2014. 
  4. ^ a b c d e f g "ATF Says that Millions of Americans are Violating the Gun Free School Zone Act". Bonzer Wolf Today. Retrieved 22 February 2014. 
  5. ^ a b Safra, Seth J. (November 2000). "The Amended Gun-Free School Zones Act: Doubt as to Its Constitutionality Remains". Duke Law Journal 50 (2): 637–662. JSTOR 1373099. 
  6. ^ Message to the Congress Transmitting Proposed Legislation to Amend the Gun-Free School Zones Act of 1990, The American Presidency Project
  7. ^ United States v Dorsey, decision of the United States Court of Appeals for the 9th Circuit
  8. ^ a b "Open Carry of a Loaded Gun". OpenCarry.org. Retrieved 9 July 2011. 
  9. ^ "Travel". OpenCarry.org. Retrieved 9 July 2011. 
  10. ^ "Constitutional Carry". OpenCarry.org. Retrieved 9 July 2011. 
  11. ^ a b c d e Barron, Joan (11 July 2011). "Wyoming gun owners could violate federal law". Casper Star-Tribune. Retrieved 11 July 2011. 
  12. ^ a b "Tusesday,May 24, 2011 Wisconsin Carry Urges Support of SB-93 as amended". Wisconsin Carry. Retrieved 9 July 2011. 
  13. ^ a b c "Gun Free Zones Act: Myth vs. Reality". Gun Owners of America. 
  14. ^ a b c d e f g h Sensiba, Dusty. "Fix the Gun Free School Zones Act". Practical Tactical LLC. Retrieved 9 July 2011. 
  15. ^ a b "Constitutional Carry & Gun Free School Zones - Wisconsin's Dirty Little Secret". Ammoland. Retrieved 9 July 2011. 
  16. ^ a b "Concealed Carry Reciprocity Maps". USACarry. Retrieved 9 July 2011. 
  17. ^ United States v Nieves-Castaño, 480 F.3d 597 (1st Cir. 2007)
  18. ^ "H.R. 2613: To repeal the Gun-Free School Zones Act of 1990 and amendments to that Act". GovTrack.us. Retrieved 24 July 2011.