Constitutional Carry vs Gun Free School Zone act

[Koda94]

In states that allow it, how does Constitutional Carry work around school zones? The way I read it you have to have a concealed handgun license to enter a school zone while in possession of a firearm.

https://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

 

[Tom Servo]

Here's the actual text of the bill.

(B) Subparagraph (A) shall 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 obtain 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

So-called constitutional carry doesn't involve issuance of a license. Without that license, you cannot carry in a school zone.

 

[KyJim]

That federal law is great argument to become licensed to carry concealed if you live, as I do, in a state with constitutional open carry.

 

[Aguila Blanca]

In states that allow it, how does Constitutional Carry work around school zones? The way I read it you have to have a concealed handgun license to enter a school zone while in possession of a firearm.

Of the few states allowing "constitutional carry," only one does not issue carry licenses/permits as an option: Vermont. I've never carried in Vermont but my understanding is that they handle the GFSZA by ignoring it.

As the highlighted section of the law provided by Tom Servo indicates, it's not enough to have a handgun license. It has to be a license or permit issued by the state in which the school zone is located. For example, I have two permits that allow me to carry in North Carolina. But I don't have a North Carolina permit, so in NC I would still have to avoid school zones as much as possible.

 

[Tom Servo]

I've never carried in Vermont but my understanding is that they handle the GFSZA by ignoring it.

That could be dangerous, though. If Vermont doesn't want their agents enforcing it, that's their prerogative. It wouldn't protect someone from federal prosecution, though.

 

[Koda94]

So basically voting for constitutional carry makes our situation worse unless we repeal the GFSZA first.

 

[Aguila Blanca]

That could be dangerous, though. If Vermont doesn't want their agents enforcing it, that's their prerogative. It wouldn't protect someone from federal prosecution, though.

Absolutely correct.

So basically voting for constitutional carry makes our situation worse unless we repeal the GFSZA first.

No, not if the "constitutional carry" law provides for the option of obtaining a carry (or concealed carry) permit. That's exactly what happened in Alaska, Arizona, and Wyoming when they did away with mandatory licensing. To my understanding, Vermont is the only state that makes no provision for a firearms carry license/permit.

And, by the way, it can be argued that the term "constitutional carry" is a misnomer, as commonly used. This argument has arisen in multiple state courts where the state's constitution guarantees a right to carry. The highest courts in those states (Ohio and Idaho come to mind) have ruled that the government may not prohibit the carrying of firearms, but may regulate the mode of carry. As this played out in Ohio, for example, inasmuch as Ohio state law at the time expressly prohibited concealed carry the court ruled that open carry had to be allowed. This led to a spate of open carry-ins, with the result that the state legislature adopted a concealed carry permit system so that all the blissninnies wouldn't have to be exposed to all those horrible guns. So in Ohio (as in Pennsylvania) open carry is legal without a permit but concealed carry requires a permit.

Which boils down to: "Constitutional" carry does not have to include both open and concealed carry. The U.S. Constitution guarantees us the right to bear arms. It does NOT say anything about open or concealed. IMHO (and IANAL), laws allowing permitless open carry but requiring a permit for concealed carry are constitutional. Of course, it could go the other way -- a state could require a permit for open carry but allow permitless concealed carry.

 

[dakota.potts]

That, along with reciprocity, is part of the reason many constitutional carry states will still issue licenses.

IIRC, Arizona has a similar situation with bars where you can't carry a gun in a bar without a license even though you can carry it almost anywhere else.

 

[Koda94]

So then technically voting for 'permitless carry' hurts our situation more unless we repeal the GFSZA first...

And in that light permit or licensed carry laws are technically 'constitutional carry'....


Interesting.

 

[Aguila Blanca]

So then technically voting for 'permitless carry' hurts our situation more unless we repeal the GFSZA first...

That's your view. I respectfully disagree.

And in that light permit or licensed carry laws are technically 'constitutional carry'....

Not necessarily. Consider the many states that don't allow ANY form of carry without a permit/license. For starters, that includes New Jersey, New York, Connecticut, Rhode Island, and Massachusetts. I'm sure there are more. There is nothing constitutional about requiring a permission slip to exercise a constitutional right.

 

[scpapa]

South Carolina prohibits open carry, but requires a permit to carry concealed. It's shall issue, but still...

Rick

 

[steve4102]

(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.

https://www.law.cornell.edu/uscode/text/18/922

I do not see any exemptions allowing for "Discharge" of a firearm even with a permit.

Am I reading this wrong, or is it illegal to discharge a firearm within 1000 feet of a school even with a permit?

 

[KyJim]

Am I reading this wrong, or is it illegal to discharge a firearm within 1000 feet of a school even with a permit?

I don't have time to research it now, but there is probably a general justification statute that allows a person to break the law if to avoid a greater evil, like running a stop sign to rush a person having a stroke to the hospital. Of course, under McDonald and Heller, the Supreme Court has basically recognized a constitutional right to self-defense (but not the exact parameters).

 

[Tom Servo]

I don't have time to research it now, but there is probably a general justification statute that allows a person to break the law if to avoid a greater evil

That would be up to the district attorney, and it would depend on the facts of the case. I'm not aware of any "general justification statute."

Here's a letter from the ATF clarifying a couple of issues [pdf].

 

[KyJim]

That would be up to the district attorney, and it would depend on the facts of the case. I'm not aware of any "general justification statute."

The Model Penal Code sect. 3.02 provides that justification/choice of evils as a defense if "the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. See p. 18 at http://wps.prenhall.com/wps/media/objects/13023/13335893/downloadables/model_penal_code_sel_sec2.pdf. My state has a variation of the defense which requires the harm sought to be avoided must be imminent and I have had the opportunity to argue it before our state supreme court. The statutes on self-defense are a specific type of justification and the general principles of justification do not apply because there are specific statutes on self-defense.

The defense of justification or necessity has its roots in English common law. There's an article about it here: http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/75.3/75_3_Schwartz.pdf. That's why I think most jurisdictions have some sort of general justification defense but I'm not going to search the laws of all 50 states.

While a district attorney may have discretion whether to charge someone claiming justification, that decision ultimately lies with the jury or other fact-finder if the state recognizes justification as a defense.

 

[steve4102]

This article from 1/2009 says that the "new" GFSZA is unconstitutional.

http://bonzerwolf.squarespace.com/t...hool-zones-act-gfsza-is-unconstitutional.html

Any thoughts or opinions on whether their "Opinion" hold any legal water or not?

I have read on here a few cases where the "New" GFSZA was challenged in court and was upheld. Who is right, if there even is a "Right"?

 

[Aguila Blanca]

No article in any law school's journal offers any legal standing whatsoever. It might be cited by your attorney as part of your defense, but it's not a court precedent so the judge in your case is free to agree with it or disagree with it.

 

[Koda94]

Quote:

Originally Posted by Koda94
So then technically voting for 'permitless carry' hurts our situation more unless we repeal the GFSZA first...

That's your view. I respectfully disagree.

well if we wind up voting for permit-less "constitutional" carry where the state doesn’t issue permits then just about everywhere we go were breaking the law any time we cross paths with a school zone. That doesn’t help our situation of exercising our 2A rights, at least with a CHL were exempt from the GFSZA. Considering the serious implications of breaking a federal gun law that seems logical we need to repeal the GFSZA first.
That's all I’m saying, I’m not saying we 'shouldn’t' have "constitutional carry" or should have to get a permission slip.

There is nothing constitutional about requiring a permission slip to exercise a constitutional right.

agree 100%. I personally have grown to loathe my CHL.


I guess my comments reflect trying to decide the 'best path' to restore our right to carry un-infringed.

 

[Aguila Blanca]

well if we wind up voting for permit-less "constitutional" carry where the state doesn’t issue permits then just about everywhere we go were breaking the law any time we cross paths with a school zone. That doesn’t help our situation of exercising our 2A rights, at least with a CHL were exempt from the GFSZA. Considering the serious implications of breaking a federal gun law that seems logical we need to repeal the GFSZA first.

The best short-term solution seems to be what every state that has eliminated concealed carry permits has done -- continue to issue permits, but make them optional. Are you saying that your state (or some other state) is considering permitless concealed carry without the option of obtaining a permit?

And, remember, protection under the GFSZA applies only to permits issued by the state in which the school zone is located. Reciprocal recognition doesn't help. My PA license takes me safely through school zones on PA. Ohio recognizes my PA license, but I don't have an Ohio permit, so as soon as I cross the line into Ohio I have to avoid school zones. Considering that I have four permits that allow me to carry in something like 32 states, that's a real problem.

Certainly, the long-term solution would be to eliminate the GFSZA, but that's not likely to happen in my lifetime.

 

[Don P]

Why is it being called "Constitutional Carry"??