Gun-Free School Zones Act of 1990

Page 1 of BATFE Letter Stating CCW Reciprocity Does Not Exempt A Permit Holder From GFSZA

Page 2 of BATFE Letter Stating CCW Reciprocity Does Not Exempt A Permit Holder From GFSZA

The Gun-Free School Zones Act (GFSZA) was enacted as section 1702 of the Crime Control Act of 1990.

It was subsequently declared to be an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution by the United States Supreme Court, and was therefore voided. This case, United States v. Lopez (1995), 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, Congress made minor changes requiring that the firearm in question "has moved in or otherwise affects interstate commerce," and reenacted the law with President William J. Clinton's signature. As nearly all firearms have moved in Interstate Commerce at some point in their lives, this was merely a legislative tactic to circumvent the Supreme Court's ruling. 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, 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:

• United States v Danks (Eighth Circuit 1999)
• United States v Tait (Eleventh Circuit 2000)
• United States v Haywood (Third Circuit 2002)
• United States v Smith (Sixth Circuit 2005)
• United States v Dorsey (Ninth Circuit 2005)
• United States v Nieves-Castaño (First Circuit 2007)
• United States v Weekes (Third Circuit 2007)
• United States v Benally (Tenth Circuit 2007)
• United States v Cruz-Rodriguez (First Circuit 2008)

Text of the law

The Gun Free School Zones Act states:

(A) 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.

(B) Subparagraph (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.

(3) (A) 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. (B) Subparagraph (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.

(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.

Definitions

Title 18 U.S.C. §921(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. (26) The term “school” means a school which provides elementary or secondary education, as determined under State law.

Penalty

Title 18 U.S.C Section 924(a) 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.

Note: 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.

Effect

The GFSZA Deters Unlicensed Carry:

Most states allow some form of unlicensed carry by law-abiding citizens. This may be open-carry, vehicle-carry, or concealed carry without the need for a permit. The Federal GFSZA deters unlicensed carry by making it a federal crime for an unlicensed individual to travel into a "Gun Free School Zone." 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.

Reciprocity Agreements Between States Do Not Qualify as GFSZA Exception

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. Forty-nine (49) States have provisions to issue concealed carry permits to citizens. Most of these States also enter into reciprocity agreements with other States where each State agrees to recognize the other's concealed carry permits, just as they recognize an out-of-state driver's license. Because the Federal GFSZA requires the permit be issued by the State in which the school zone is in, it is effectively impossible for a permit holder to travel outside their State of issuance to a reciprocating State without violating the Federal GFSZA.

Off-duty LEOSA Qualified Police Officers Not Exempt

The Law Enforcement Officer's Safety Act (LEOSA) which was intended to give qualified law enforcement officers the protection of carrying nation-wide does not provide any exceptions to Federal Law. 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. 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 has a valid carry license issued by that state.

GFSZA Prohibits Discharging Firearm in Self-Defense; Few exceptions

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

First Circuit Court of Appeals Sustains GFSZA Conviction for Gun Kept in Home

The First Circuit Court of Appeals sustained a conviction in the 2007 case of United States v Nieves-Castaño for a machine gun kept in a woman's apartment, which was part of a housing project.

HR 2613

On July 21, 2011 US Representative Ron Paul introduced HR 2613. A Bill which would repeal the Federal Gun Free School Zones Act. The bill is currently in the House Judiciary Committee.