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Gun-Free School Zones Act of 1990

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This article is about an act of the U.S. Congress generally restricting the possession of firearms in and around schools. Not to be confused with Gun-Free Schools Act of 1994.
Crime Control Act of 1990
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Other short titles
  • Anabolic Steroids Control Act of 1990
  • Child Protection Restoration and Penalties Enhancement Act of 1990
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  • Federal Debt Collection Procedures Act of 1990
  • Financial Institutions Anti-Fraud Enforcement Act of 1990
  • Mandatory Detention for Offenders Convicted of Serious Crimes Act
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Long titleGun-Free School Zones Act of 1990
Acronyms (colloquial)GFSZA, CCA
NicknamesGun-Free School Zones Act of 1990
Enacted bythe 101st United States Congress
EffectiveNovember 29, 1990
Citations
Public law101-647
Statutes at Large104 Stat. 4789 aka 104 Stat. 4844
Codification
Titles amended18 U.S.C.: Crimes and Criminal Procedure
U.S.C. sections amended
Legislative history
  • Introduced in the Senate as S.3266 by Herb Kohl (D-WI) on October 27, 1990
  • Passed the Senate on October 27, 1990 (passed voice vote)
  • Passed the House of Representatives on October 27, 1990 (313–1, Roll call vote 534, via Clerk.House.gov)
  • Signed into law by President George H. W. Bush on November 29, 1990
United States Supreme Court cases
United States v. Lopez
Firearm legal topics of the
United States
flag United States portal
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."
ATF letter detailing the agency's interpretation of the act

The Gun-Free School Zones Act (GFSZA) is an act of the U.S. Congress prohibiting any unauthorized individual from knowingly possessing a loaded or unsecured 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)(26). The law applies to public, private, and parochial elementary schools and high schools, and to non-private property within 1,000 feet (300 m) of them. It provides that the states and their political subdivisions may issue licenses that exempt the licensed individuals from the prohibition.

It was first introduced in the U.S. Senate in February 1990 as S. 2070[1] by Senator Herb Kohl of Wisconsin and then was incorporated into the Crime Control Act of 1990 that was signed into law by President George H. W. Bush.

History

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, U.S. Attorney 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 (text) (PDF), 110 Stat. 3009, enacted September 30, 1996.[2] These changes required that the firearm in question "has moved in or otherwise affects interstate commerce."[3] As nearly all firearms have moved in interstate commerce at some point in their existence, critics assert this was merely a legislative tactic to circumvent the Supreme Court's ruling.[2]

Challenges

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.[4]

Although the amended GFSZA has yet to be challenged in the U.S. Supreme Court, it has been reviewed and upheld by several federal Circuit Courts. In a 2005 Appellate case, United States v. Dorsey,[5] the minor changes of the revised law were specifically challenged. In Dorsey, the U.S. 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 Lopez, and they upheld Dorsey's conviction under the revised version of the law. A 2000 ruling made by the Eleventh Circuit in United States v. Tait overturned a conviction for firearm possession in a school zone because the defendant was licensed to do so by the state in which the school zone is located.

Convictions upheld post-Lopez under the revised Gun Free School Zones Act include:

Convictions overturned post-Lopez under the revised Gun Free School Zones Act include:

Provisions

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

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

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

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. It is unlawful for a "prohibited person" to own, purchase, or possess "firearms" as defined by US federal law. A US presidential pardon may remove this civil disability.[6][7]

Places affected

Individuals traveling on public sidewalks, roads, and highways within 1,000 feet (300 m) of defined schools are subject to the law's legal restrictions.[6][8][9] The First Circuit Court of Appeals sustained a GFSZA conviction in the 2007 case of United States v Nieves-Castaño for a firearm kept in a woman's apartment, which was part of a public housing project within 1,000 feet of a school.[10] In 2012, ATF informed the town of Stratham, New Hampshire, that hunters would be violating GFSZA by hunting on locally approved public hunting land, a town forest, which fell within 1,000 feet of a local school.[6][11]

Carrying

Most states allow some form of unlicensed carry by persons who are not prohibited by statute from owning or possessing firearms.[12] This may be open-carry,[12] vehicle-carry,[13] or concealed carry without the need for a permit.[14] 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'."[6][7][8][9][15][16][17] 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.[6][8][9][15][16]

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.[6][7][8][9][15][18] Nearly all 50 states have provisions to issue concealed carry permits to citizens.[19] Most of these states also enter into reciprocity agreements with other states where each state agrees to recognize the other's concealed carry permits.[19] Because the Federal GFSZA requires the permit be issued by the state which the school zone is in,[6][7][8] it is difficult for a permit holder to travel outside their state of issuance to a reciprocating state without violating the Federal GFSZA.[6][8][9][15][18]

The Law Enforcement Officers Safety Act (LEOSA), intended to allow qualified law enforcement officers the ability to carry guns nationwide, does not provide any exceptions to Federal Law per 18 U.S.C. § 926B. GFSZA does not make any exception for an off-duty qualified officer.[9][15][17]

Discharge

GFSZA generally prohibits anyone from discharging a firearm on public property within a school zone. Legal exceptions are made for on-duty law enforcement and contracted school security.[6][7][8][9]

Reactions

Amendments introduced

In June 1995, following restrictions which were placed on the original law in the United States v. Lopez Supreme Court ruling, the Gun-Free School Zones Act of 1995 was introduced.[20][21] The new bill would have restored much of the language of the original law, but also add a new provision which requires prosecutors to prove during each prosecution that the gun moved in or affected interstate or foreign commerce.[21][20]

Opposing the law

On May 22, 2007, June 24, 2009, and July 21, 2011, US Representative Ron Paul introduced similar bills H.R. 2424, H.R. 3021, and H.R. 2613 that would repeal the Federal Gun Free School Zones Act. No form of those bills has ever passed committee.[22]

In February 2018, US Representative Thomas Massie introduced a similar bill, H.R. 34 titled the "Safe Students Act", that would repeal the Federal Gun Free School Zones Act.

See also

References

  1. ^ Kohl, Herbert (February 12, 1990). "Text – S.2070 – 101st Congress (1989–1990): Gun-Free School Zones Act of 1990". www.congress.gov. Retrieved February 24, 2018.
  2. ^ 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. doi:10.2307/1373099. JSTOR 1373099.
  3. ^ Message to the Congress Transmitting Proposed Legislation to Amend the Gun-Free School Zones Act of 1990, The American Presidency Project
  4. ^ United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).
  5. ^ "United States v. Dorsey (2005) | FindLaw". Retrieved July 2, 2023.
  6. ^ a b c d e f g h i Oklahoma Second Amendment Association (2013). "Federal Gun Free School Zones Act". Oklahoma Second Amendment Association. Archived from the original on March 1, 2014. Retrieved February 22, 2014.
  7. ^ a b c d e Benedict, Ashan (July 2013). "Letter from ATF to Oklahoma Second Amendment Association" (PDF). handgunlaw.us. Retrieved February 22, 2014.
  8. ^ a b c d e f g Wolf, Bonzer (January 21, 2014). "ATF Says that Millions of Americans are Violating the Gun Free School Zone Act". Bonzer Wolf. Retrieved February 22, 2014.
  9. ^ a b c d e f g Sensiba, Dusty. "Fix the Gun Free School Zones Act". Practical Tactical LLC. Retrieved July 9, 2011.
  10. ^ United States v Nieves-Castaño, 480 F.3d 597 (1st Cir. 2007)
  11. ^ "Stratham Hill Park ban on hunting heads to voters". SeaCoast Online. Retrieved July 11, 2014.
  12. ^ a b "Open Carry of a Loaded Gun". OpenCarry.org. Archived from the original on July 12, 2011. Retrieved July 9, 2011.
  13. ^ "Travel". OpenCarry.org. Archived from the original on July 19, 2011. Retrieved July 9, 2011.
  14. ^ "Constitutional Carry". OpenCarry.org. Archived from the original on July 19, 2011. Retrieved July 9, 2011.
  15. ^ a b c d e Barron, Joan (July 11, 2011). "Wyoming gun owners could violate federal law". Casper Star-Tribune. Retrieved July 11, 2011.
  16. ^ a b "Tusesday,May 24, 2011 Wisconsin Carry Urges Support of SB-93 as amended". Wisconsin Carry. Archived from the original on March 26, 2012. Retrieved July 9, 2011.
  17. ^ a b "Gun Free Zones Act: Myth vs. Reality". Gun Owners of America.
  18. ^ a b "Constitutional Carry & Gun Free School Zones – Wisconsin's Dirty Little Secret". Ammoland. May 6, 2011. Retrieved July 9, 2011.
  19. ^ a b "Concealed Carry Reciprocity Maps". USACarry. Retrieved July 9, 2011.
  20. ^ a b "Gun-free school zones act of 1995". Archived from the original on June 22, 2003.
  21. ^ a b "S.890 - Gun-Free School Zones Act of 1995". Congress.gov. July 18, 1995. Retrieved March 9, 2021.
  22. ^ "H.R. 2613: To repeal the Gun-Free School Zones Act of 1990 and amendments to that Act". GovTrack.us. Retrieved July 24, 2011.
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