Thousand Foot Rule?

TFred said:

I honestly have no idea what you are talking about.

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If you want to claim that you were >1000 ft away ... then you need to prove your measuring method is accurate .... google map? Good luck with that piece of information ~ would never be admissible in a court of law.

q) (1) The Congress finds and declares that—

(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

Don't you love how Congress twists the Commerce Clause here to give themselves authority to make this law? :banghead:

Numenor said:

q) (1) The Congress finds and declares that—

(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

Don't you love how Congress twists the Commerce Clause here to give themselves authority to make this law? :banghead:

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I won a case based on commerce law, I was charged with interstate transportation without a tax stamp. The judge agreed with me that once a item is received in NC and does not move outside of NC, it is no longer in interstate commerce. I think the question needs to be resolved, just how long does a inanimate object remain in interstate commerce?

Anyway, a antique firearm is exempt, unless they decide to change it again.

IMHO.........

18 USC 922(q) is unconstitutional. The Supreme Court has made that clear in Lopez and has reaffirmed that in their resent Health Care law decision (National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012)) explaining the commerce clause. The commerce clause cannot be used to get around the Bill of Rights.

18 USC 922 dealing with guns in school zones is, as Lopez made clear, not in commerce.

It is well settled that Congress has broad authority to regulate interstate commerce, but that authority is not unlimited. The Supreme Court stated in Gibbons v. Ogden, 22 U.S. 1, 3, 6 L.Ed. 23 (1824), “The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself.” The principle that Congress’ power to regulate interstate commerce is limited by the Constitution was reiterated in United States v. Lopez, 514 U.S. 549, 552-116 S.Ct. 1624, 131 L.Ed2d 626 (1995), where the Supreme reaffirmed Gibbons with the following statement:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v .Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.
The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, § 8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress' commerce power in Gibbons v.Ogden, 9 Wheat. 1, 189-190 (1824):
"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.

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Again, National Federation of Independent Business v. Selelius, No. 11-393, Slip Opinion, June 28, 2012 confirms the principle that the interstate commerce powers of Congress does in deed have limits.

Quoting from McCulloch v. Maryland, 17 (4 Wheat) U.S. 316, 405, 4 L.Ed.579 (1819), Chief Justice Roberts stated,
Quote:
“The Federal Government ‘is acknowledged by all to be one of enumerated powers.’ Ibid. That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.” See page 2 of Slip Opinion.

Further affirmation of the limitations of Bill of Right on Congress regarding the commerce powers is explained on page 3 of the Slip Opinion.

“Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, ‘the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.’ The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).”

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Congress fixed nothing. Lopez made it clear the commerce clause will not fly under any circumstances.
United States v. Lopez, 514 U.S. 549.

Held: The Act exceeds Congress’ Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce...

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To uphold the Government’s contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.

Some will tell you that federal law - 18 USC 922(q) disallows open carry in school zones. And the statute does say that. But, since Congress amended 18 USC 922(q) there has been one court that I know of that has upheld Congresses changes; United States v. Danks, 221 F.3d 1037 (8th Cir. 1999). Its decision is contrary to what Lopez said.

Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), United States v. Lopez, 514 U. S. 549 (1995) and Gonzales v. Raich, 545 U.S. 1 (2005) all made it clear that under the Commerce Clause Congress is required to show a tangible link to commerce, not a mere conceivable rational relation. “imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” See Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment).

The Lopez Court made it clear that the Commerce Clause would not carry the day when it comes to carrying a gun in a school zone.

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 556-558. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.

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I suggest you read Lopez yourself.

Can anyone cite a federal case where someone has been prosecuted for just carrying a gun in a school zone since the Lopez decision?

Thanks to all who replied.There may not by a definitive answer(minus a survey)being done. So it basically Buyer,Ocer, Beware.I was just trying to not become caught up in some attempt by an overzealous Leo,if it ever became an issue, while on my own property.
Thanks

twoforme said:

Thanks to all who replied.There may not by a definitive answer(minus a survey)being done. So it basically Buyer,Ocer, Beware.I was just trying to not become caught up in some attempt by an overzealous Leo,if it ever became an issue, while on my own property.
Thanks

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Nothing will protect you from a overzealous LEO. Even if you steer clear of GFSZ(school zone). It is always a chance that just OCing will trigger someone not in their right mind. The best you can do is not get hurt, and know the laws, and record. In the long run you should come out OK, but for that short period of time, unfortunately, you will be at their mercy.

This was the case in Texas with the two girls sexually assaulted by the police, while it does not make it better for them personally, those two cops may be going to jail. And really jail is the last thing a LEO wants to do.

Not like I'm particularly worried either, but I have to wonder HOW a LEO would KNOW for a fact that you were within 1000 feet, vs. 1001 feet. Meaning, in what way did THEY measure. IMHO this is a lot like radar stops. they have to prove accuracy of the radar, verify calibration, demonstrate an understanding of the limitations specified by the manufacturer of that radar. so it would be interesting to see how they would establish RAS...yes your honor, having been trained during LEO academy to automatically and accurately determine ranges, and having had my eyeballs recently calibrated....or produce the state certified tape measure that was used to measure distance immediately prior to your having walked right where they had just measured. And so on. Not saying it isn't possible to be arrested, although unlikely at best, but would love to watch someone like user tear that one apart in court.

JohnM15A said:

I have been using Google maps. The map have a distance legend. I just zoom to 1,000' on the legend, hold up a piece of paper to the legend, mark the paper and then use the paper to hold up to the map to measure distance. It's not exact but I will tell you if you are close or not...

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That is what i did, and it put my front door within the GFSZ.

twoforme said:

That is what i did, and it put my front door within the GFSZ.

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Your front door cannot be within the zone, it is private property.

Curmudgeon said:

The definition is:

Definitions found here: http://www.law.cornell.edu/uscode/text/18/921

Your property is exempt:



Found here: http://www.law.cornell.edu/uscode/text/18/922

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This is the kind of info i am looking as to whether my property IF in the 1000' zone would I be OK.

drdan01 said:

Not like I'm particularly worried either, but I have to wonder HOW a LEO would KNOW for a fact that you were within 1000 feet, vs. 1001 feet. Meaning, in what way did THEY measure. IMHO this is a lot like radar stops. they have to prove accuracy of the radar, verify calibration, demonstrate an understanding of the limitations specified by the manufacturer of that radar. so it would be interesting to see how they would establish RAS...yes your honor, having been trained during LEO academy to automatically and accurately determine ranges, and having had my eyeballs recently calibrated....or produce the state certified tape measure that was used to measure distance immediately prior to your having walked right where they had just measured. And so on. Not saying it isn't possible to be arrested, although unlikely at best, but would love to watch someone like user tear that one apart in court.

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They'll have all the time in the world needed to make a correct measurement .... they don't need the absolute proof to arrest, just to convict..

There's only so much stuff a person can worry about, that law isn't worth thinking about.

Numenor said:

...Don't you love how Congress twists the Commerce Clause here to give themselves authority to make this law? :banghead:

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This and MOST of their laws.

As a Nevadan living in Nevada, the US Congress should have almost zero effect on my life unless I am truly engaging in some sort of interstate affair.

Aside: People are far wrongly more interested in who wins elections to national offices instead of their state legislatures.

JohnM15A said:

Thanks Tfred, nice tool. I have read that the VA concealed carry permit is not a "license" as described by the GFSZA law:

(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;

So I'm screwed, I can load the car trunk with a locking container to put the unloaded gun, drive the necessary distance to be outside the zone, pull over, retrieve the gun, load it and put it on my hip. And then do the opposite when returning home. Maybe the risk is worth it though, have not heard of the GFSZA police...

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I'm going to venture a guess that probably none of us Virginia people worry a hoot about this federal law and carry as is our whim, open or concealed, within a mile or 50 feet of school grounds and don't even think about it. I know I do every day I go out. I can't help but pass several schools on my trips out and around my area. I never concern myself with this.

But others may and that is their choice. Their mileage may vary.

SouthernBoy said:

I'm going to venture a guess that probably none of us Virginia people worry a hoot about this federal law and carry as is our whim, open or concealed, within a mile or 50 feet of school grounds and don't even think about it. I know I do every day I go out. I can't help but pass several schools on my trips out and around my area. I never concern myself with this.

But others may and that is their choice. Their mileage may vary.

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I'll bet some of the Richmond boys don't carry within a 1000' feet of a NoVA school.

Citizen said:

I'll bet some of the Richmond boys don't carry within a 1000' feet of a NoVA school.

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Right. South of the Ni qualifies I guess. Do they have schools down there :uhoh:

I too, live within a school zone. I OC while doing yard work, working on my car or bike, sitting on the porch with a beer etc...never think twice. My side arm is on my hip every time I get in the car and leave or walk down the street.

Pass through many GFSZ's every time I OC in the VB area. Dont sweat it.

Carry on.

No problem if you are on private property. Private property is excluded in the law. On a finer point, can one walk down the street, making sure that they are walking on "private property" (not your property) never touching "public property" in a GFSZ? I'm in a development so I could conceivable do that although if I did that every time I left and came home the neighbors might freak....

I think I'll rely on my "state issued license" to carry a concealed handgun...

John

JohnM15A said:

No problem if you are on private property. Private property is excluded in the law. On a finer point, can one walk down the street, making sure that they are walking on "private property" (not your property) never touching "public property" in a GFSZ? I'm in a development so I could conceivable do that although if I did that every time I left and came home the neighbors might freak....

I think I'll rely on my "state issued license" to carry a concealed handgun...

John

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Not that I think you will have any problems, but again, please show me where a CHP is a license to carry a handgun! IIRC, our resident legal expert, User, has stated more than once that a CHP is an "affirmative defense" to the crime of carrying a concealed handgun. That means you can be charged with the crime, and the CHP is your "get out of jail" card. That doesn't sound very much like a "license" to me...

I'm not trying to be stubborn (well, maybe just a little) but it is in our best interest to NOT allow a CHP to be the exception to this law. If there are no exceptions, and we can clearly prove this, the law has no chance to stand if it ever ends up in court with a good case.

TFred

Yea, a little tongue in cheek when I italicized "state issued license"... I would hope to think that a LEO stop "just passing by" the school with no intention to go onto the property would end in a warning especially when one has CHP. Of course the LEO could easily arrest you, haul you to jail and call the federal attorney to tell him they have a criminal for them...