Author Topic: Living in a Federal School Gun-Free Zone  (Read 6311 times)

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Offline TheQ

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Living in a Federal School Gun-Free Zone
« on: July 26, 2010, 12:02:23 AM »
Hello all,

I reside within an area described by (18 USC §922), §(2)(A) (http://codes.lp.findlaw.com/uscode/18/I/44/922).

Any thoughts on how this affect my rights in regard to walking my neighborhood for the purpose of personal protection (as I often do on my walks at night)?  Naturally, the areas I walk in are also mostly inside of this said "zone".

School Zone is defined in the Federal law here 18 U.S.C. § 921: http://codes.lp.findlaw.com/uscode/18/I/44/921


(18 USC §922), §(2)(A):
(2)(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.

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.
I Am Not A Lawyer (nor a gunsmith).

Offline TheQ

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Re: Living in a Federal School Gun-Free Zone
« Reply #1 on: July 26, 2010, 12:04:02 AM »
On a side-note, I do not yet have a CPL.
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Offline Bronson

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Re: Living in a Federal School Gun-Free Zone
« Reply #2 on: July 26, 2010, 02:39:42 AM »
Any thoughts on how this affect my rights in regard to walking my neighborhood for the purpose of personal protection (as I often do on my walks at night)?  Naturally, the areas I walk in are also mostly inside of this said "zone".

School Zone is defined in the Federal law here 18 U.S.C. § 921: http://codes.lp.findlaw.com/uscode/18/I/44/921


(B) Subparagraph (A) does not apply to the possession of a
firearm -

(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;


Because Michigan requires a background check and a test to determine if you are knowledgable about firearm basics before they will issue you a License To Purchase, Carry, Possess, or Transport a handgun we are exempt from the 1000' rule.

Bronson
Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it. – Thomas Paine

Offline TheQ

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Re: Living in a Federal School Gun-Free Zone
« Reply #3 on: July 27, 2010, 12:00:44 AM »
Because Michigan requires a background check and a test to determine if you are knowledgable about firearm basics before they will issue you a License To Purchase, Carry, Possess, or Transport a handgun we are exempt from the 1000' rule.
Bronson

If you can call it a test...*chuckles*.  I hate to have to agree with the Liberals/gun control people in saying the test to get a Permit to Purchase isn't much of a test.

I would like to know though, do you have any AGOs or other legalese references to support the opinion you stated?
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Offline venator

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Re: Living in a Federal School Gun-Free Zone
« Reply #4 on: July 27, 2010, 08:17:21 AM »
Because Michigan requires a background check and a test to determine if you are knowledgable about firearm basics before they will issue you a License To Purchase, Carry, Possess, or Transport a handgun we are exempt from the 1000' rule.
Bronson

If you can call it a test...*chuckles*.  I hate to have to agree with the Liberals/gun control people in saying the test to get a Permit to Purchase isn't much of a test.

I would like to know though, do you have any AGOs or other legalese references to support the opinion you stated?

United States v Tait (2000) http://openjurist.org/202/f3d/1320/united-states-v-tait

In this case the person (Charged with school zone violation among other things)had a permit to possess a handgun issued in Michigan and Alabama.   The court said the Michigan and Alabama permits counted as did his restoration of rights.  It also may help OC in that the decision makes a reference to a background check not being needed and as long as Michigan issues a "license" to the person they are covered or that they satisfy Michigan law. As long as Michigan is okay with handgun possession then so are the Feds.  Thoughts?  I may be all wrong on this, but maybe not.
 

I have some highlights below.
 

The grand jury's second count against Tait charges him with a violation of 18 U.S.C. 922(q)(2)(A) (the "Gun-Free School Zone Act"). The section 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)(2)(A). Tait was on high school property, an obvious "school zone," at the time of his alleged criminal conduct. However, as with 922(g)(1), an exception to the firearms prohibition of 922(q)(2)(A) applies. Section 922(q)(2)(B)(ii) provides:

18

Subparagraph (A) does not apply to the possession of a firearm ... 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....19

18 U.S.C. 922(q)(2)(B)(ii).

20

The Gun-Free School Zone Act dictates that Tait violated federal law via possessing a handgun in a school zone unless Tait was licensed by Alabama, and either Alabama or Escambia County verified that Tait was qualified to receive the license.5 As Tait did possess a handgun in a school zone, and Tait was licensed in Alabama, the issue boils down to whether Alabama or Escambia County adequately verified that Tait was qualified to receive the license.

21

Alabama's licensing requirements are lenient:

22

The sheriff of a county may, upon application of any person residing in that county, issue a qualified or unlimited license to such person to carry a pistol ... if it appears that the applicant has good reason to fear injury to his person or property or has any other proper reason for carrying a pistol, and that he is a suitable person to be so licensed.

23

Ala.Code 13A-11-75 (1975). The government argues that Tait's license is void for purposes of 922(q)(2)(B)(ii) for two reasons: first, because Alabama's requirements for verifying an applicants' qualifications are too relaxed to ever qualify their licensees for 922(q)(2)(B)(ii) protections; and second, because Tait was not a suitable person to be licensed under Alabama law. According to the government, these licensing deficiencies resulted in Tait receiving a void license which did not qualify for the exception in 922(q)(2)(B)(ii).

24

The government first argues that Alabama licenses never qualify for the exception in 922(q)(2)(B)(ii) because Alabama does not require its licensing agents to conduct background checks on firearms license applicants. The 922(q)(2)(B)(ii) exception only applies if "... the law of the State ... requires that ... [the sheriff] verify that the individual is qualified under law to receive the license." 18 U.S.C. 922(q)(2)(B)(ii). By its basic terms, the statute merely requires that the Alabama sheriff ensured that Tait was qualified under Alabama law to receive the license. While the Alabama law is extremely lenient, it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies. See Caron v. United States, 524 U.S. 308, 118 S.Ct. at 2011-12, 141 L.Ed.2d 303.6 Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements when it established "qualified under law" as its criterion for the exception to the Gun-Free School Zone Act. Therefore the government's first argument with respect to 922(q)(2)(B)(ii) is rejected.7

25

The government next argues that Tait failed to qualify for an Alabama license, even under Alabama's lax standards, because Tait was not a suitable licensee. The government maintains that Tait was not suitable based on Alabama Code section 13A-11-72(a), which provides: "No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his ... possession or under his ... control." Ala.Code 13A-11-72(a) (1975). The government's argument fails due to a recent Eleventh Circuit opinion, United States v. Fowler, 11th Cir., 1999, 198 F.3d 808 (1999). The Fowler court held, "Without an express limitation on the certificate restoring civil and political rights ..., under Alabama law the restoration of civil and political rights restores the firearm rights limited by 13A-11-72(a)." Id.

26

The government tries to distinguish Fowler on two bases: first, that the defendant in Fowler received a written pardon restoring his civil rights (whereas Tait's civil rights were restored via operation of Michigan law); and second, that the Fowler case involved the interpretation of 922(g) rather than 922(q). Both distinctions are irrelevant. First, the Supreme Court held in Caron, "Massachusetts restored petitioner's civil rights by operation of law rather than by pardon or the like. This fact makes no difference." Caron, 524 U.S. 308, 118 S.Ct. at 2011, 141 L.Ed.2d 303. The critical issue is whether civil rights were restored unconditionally-not how the civil rights were restored. Tait's civil rights were restored, without reservation; thus Tait is entitled to the same protections as any other person without state-imposed limitations on his civil rights-including the protections of the 922(q)(2)(B)(ii) exception.

27

As for the government's second point, the fact that this court was evaluating 922(g) rather than 922(q) in Fowler is entirely irrelevant. Utilizing Fowler's line of reasoning, this court holds that Tait's firearms rights were restored for purposes of exceptions to 922(g) as well as 922(q). Fowler held that a felon's right to firearms was completely restored for purposes of removing 13A-11-72(a) limitations. Fowler, 198 F.3d 808. Tait's suitability for firearms licensing was equally restored. To hold otherwise would be non-congruous with Fowler. We therefore hold that the district court properly dismissed Count Two of the indictment against Tait.

 

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Offline TheQ

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Re: Living in a Federal School Gun-Free Zone
« Reply #5 on: July 27, 2010, 06:02:17 PM »
Subparagraph (A) does not apply to the possession of a firearm ... 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....19

Thank you for providing some interesting reading.  Here are some thoughts I have (or alternate interpretations):

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

What is meant by the words "to do so?"?

Those words could mean "licensed to carry the firearm" -- in which case it could be realistically successfully argued the Permit to Purchase qualifies as such a license.

Those words could mean "licensed to carry a firearm in a school zone" -- in which case it could realistically be successfully argued the Permit to Purchase does NOT qualify as such a license.


Just alternate interpretations.  What are your thoughts?
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Offline TheQ

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Re: Living in a Federal School Gun-Free Zone
« Reply #6 on: July 27, 2010, 06:51:02 PM »
Without debate, I think we can include carrying long arms in a "school zone" out -- unless you have a CPL?  There is no permit to purchase a long arm and the state does no background check.
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Offline drtodd

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Re: Living in a Federal School Gun-Free Zone
« Reply #7 on: July 27, 2010, 10:07:36 PM »
Without debate, I think we can include carrying long arms in a "school zone" out -- unless you have a CPL?  There is no permit to purchase a long arm and the state does no background check.

That's the way I have understood it.
"The claim and exercise of a constitutional right cannot be converted into a crime." Miller v. U.S. 230 F 486 at 489

"Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966).

Offline Michigander

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Re: Living in a Federal School Gun-Free Zone
« Reply #8 on: July 29, 2010, 03:10:43 PM »
Without debate, I think we can include carrying long arms in a "school zone" out -- unless you have a CPL?  There is no permit to purchase a long arm and the state does no background check.

Aside from some tricky game area laws which are utterly off topic to this thread, a CPL does nothing for long gun carry. With or without a CPL, it is illegal to carry a long gun in a school zone, unless it's a federal rifle and at the same time a registered Michigan dumb ass pistol (MIDAP) 26-30 inches in length.

Offline hamaneggs

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Re: Living in a Federal School Gun-Free Zone
« Reply #9 on: August 02, 2010, 07:12:16 PM »
I would also see in AG opinion 7113 in regards to an unpaid reserve officer,OCing,same as in the MCRGOvFerndale case,where it states in MCL 750.237a (4)Except as provided in subsection (5),an individual who possesses a weapon in a WEAPON FREE SCHOOL ZONE is guilty of a misdemeanor punishable by 1 or more of the following. Subsection (5)Subsection (4)does not apply to any of the following:(b)A peace officer,(c)An individual licensed by this state or another state to carry a concealed weapon.
 The opinion states- It is my opinion, therefore,that a uniformed reserve police officer acting as an unpaid volunteer for a local police agency may carry an exposed,holstered pistol within the GUN FREE ZONES established by the Concealed Pistol Licensing Act;and if the officer is either a fully authorized "police officer" or,alternatively,possesses a valid CONCEALED PISTOL LICENSE issued under the Concealed Pistol Licensing Act,he or she may also carry an exposed,holstered pistol within the GUN FREE ZONES established by the MICHIGAN PENAL CODE.
Looks to me that peace officers are in good company,being listed with us OCer's as exempted people! WHOORAAAY! Any more questions? CARRY ON!
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Offline TheQ

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Re: Living in a Federal School Gun-Free Zone
« Reply #10 on: August 02, 2010, 07:47:20 PM »
I would also see in AG opinion 7113 in regards to an unpaid reserve officer,OCing,same as in the MCRGOvFerndale case,where it states in MCL 750.237a (4)Except as provided in subsection (5),an individual who possesses a weapon in a WEAPON FREE SCHOOL ZONE is guilty of a misdemeanor punishable by 1 or more of the following. Subsection (5)Subsection (4)does not apply to any of the following:(b)A peace officer,(c)An individual licensed by this state or another state to carry a concealed weapon.
 The opinion states- It is my opinion, therefore,that a uniformed reserve police officer acting as an unpaid volunteer for a local police agency may carry an exposed,holstered pistol within the GUN FREE ZONES established by the Concealed Pistol Licensing Act;and if the officer is either a fully authorized "police officer" or,alternatively,possesses a valid CONCEALED PISTOL LICENSE issued under the Concealed Pistol Licensing Act,he or she may also carry an exposed,holstered pistol within the GUN FREE ZONES established by the MICHIGAN PENAL CODE.
Looks to me that peace officers are in good company,being listed with us OCer's as exempted people! WHOORAAAY! Any more questions? CARRY ON!

Your opinion seems a bit vague.  Does it appear to be legal to carry within 1,000' of a school's grounds or not?

Thank you for the detail.
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Offline BTAvery

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Re: Living in a Federal School Gun-Free Zone
« Reply #11 on: August 22, 2010, 02:39:18 PM »
So I live within about a 100 yards of a school (a middle school) and often walk my dog am I illegal? (no CPL) Because my usual route is to walk about another 400 yards away then 400 yards parallel then all the way down to the road that the school is on walk right in front of the school and then turn down my road about 10 yards from school property.

Offline Bronson

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Re: Living in a Federal School Gun-Free Zone
« Reply #12 on: August 23, 2010, 03:42:13 AM »
So I live within about a 100 yards of a school (a middle school) and often walk my dog am I illegal? (no CPL)

As long as you went through the Michigan License To Purchase process and the gun is registered as yours you are legal.  You are also completely legal on your own property.

TITLE 18, PART I, CHAPTER 44, § 922, Paragraph q, sub-paragraph 2

Quote
(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;

The Michigan License To Purchase meets the requirements for section (ii) so you may openly carry your registered firearm on the sidewalk directly in front of the school.  Without a CPL do NOT set foot on school property.

I am not a lawyer and this in only my opinion.  Always seek competent legal counsel for answers to your legal questions.

Bronson
Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it. – Thomas Paine

Offline jasonalun

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Re: Living in a Federal School Gun-Free Zone
« Reply #13 on: April 27, 2011, 11:56:06 PM »
I just purchased my first rifle. I also live within 1000 feet of a school (a private church/school - does that make any difference to the Federal Gun Free School Zone law?) and I am wondering if I have to step out onto my lawn with my rifle (doubt I ever would, but let's just say I had to defend my family there), would I be in violation of the Federal Gun-Free School Zone Law?