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Thread: Unlicensed OC within 1,000ft of a school?

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    Regular Member Samopal's Avatar
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    Question Unlicensed OC within 1,000ft of a school?

    If you live in a state that allows OC without a license, say MI for example, is it lawful to OC within 1,000ft of a school? I've heard many people say federal law prohibits it.

    I can't find any solid answers regarding this, so maybe you guys could help.

    I'm asking because I live in a nice little subdivision with a school about 300ft from my door. I don't have a CPL - is it illegal for me to OC around my neighborhood while I'm out for a walk?
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    Federal law clearly prohibits carry without a license (with some very specific exceptions) within 1000 feet of a school. No exception is made for States that allow carry without a license.

    That particular infringement is one of a few that are the only reasons I am getting my CHL. I don't want to be a test case. We have been looking for a volunteer to test the constitutionality of that law. Would you like to give it a shot?
    Last edited by eye95; 04-03-2013 at 07:41 PM.

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    Regular Member Samopal's Avatar
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    Quote Originally Posted by eye95 View Post
    Federal law clearly prohibits carry without a license (with some very specific exceptions) within 1000 feet of a school. No exception is made for States that allow carry without a license.

    That particular infringement is one of a few that are the only reasons I am getting my CHL. I don't want to be a test case. We have been looking for a volunteer to test the constitutionality of that law. Would you like to give it a shot?
    No I wouldn't, but thanks for the offer.

    Just as a thought: I have a License to Purchase a Pistol right here next to me with my pistol's info on it. In MI, you need this license to buy a handgun, and according to MI law any handgun legally owned (ie. through a purchase license or CPL) can be carried openly. Could this be seen as a license to possess and carry said pistol?

    Also could someone point me to the actual law that prohibits firearms within 1,000ft? All I can find is the now defunct Gun-Free School Zones Act of 1990.
    Last edited by Samopal; 04-03-2013 at 07:48 PM.
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    I hesitate to comment on MI law. I'll leave that to folks from MI.

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    Regular Member Samopal's Avatar
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    Quote Originally Posted by eye95 View Post
    I hesitate to comment on MI law. I'll leave that to folks from MI.
    Well it isn't really unique to MI, it was just an example. I just want to know what federal law defines as a "license".
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    Quote Originally Posted by Samopal View Post
    Well it isn't really unique to MI, it was just an example. I just want to know what federal law defines as a "license".
    The only requirement I recall about the license is that only licenses issued after a State-required background check permit carry in a "GFSZ."

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    Regular Member Samopal's Avatar
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    Quote Originally Posted by eye95 View Post
    The only requirement I recall about the license is that only licenses issued after a State-required background check permit carry in a "GFSZ."
    That makes sense. If that's the case an MI purchase license should be fine, not that I'm going to go test the feds on it.
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    Regular Member Samopal's Avatar
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    Well it seems I just had to search a little harder...

    (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;


    I am most certainly licensed by the state to possess a firearm and had to get a background check to do so.
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    Get people from MI to double-check your interpretation. Does a license to "purchase" license you to "possess"? I can't speak about the situation in MI.

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    Campaign Veteran MAC702's Avatar
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    Technically, if a federal agent (or the authorized local authorities) wanted to enforce this unconstitutional law, they could argue that a "permit" is not a "license" in some states. Some states don't have any provision for this "license" and in other states, their "license" is worded in such a way that it, too, may not be a proper exemption.

    Fortunately, in the states I frequent, we completely ignore this unconstitutional, unenforced "law."

    Many of us OC near schools with no license throughout NV, AZ, and UT.
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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by Samopal View Post
    Well it isn't really unique to MI, it was just an example. I just want to know what federal law defines as a "license".
    Not just a license, but a "license to do so". Very few states issue a license that is a license to carry a firearm within a GFSZ. Colorado is one of the states that do make it clear. NC the law specifically points to federal restrictions are applied to CHP holders. But GFSZA is a federal law, and to be used by local authorities it usually is part of another offense, or has been so far.

    The recent SCOTUS ruling on Arizona immigration laws would indicate that local and state authorities do not have power to enforce federal laws. Plus GFSZA has no force on private property, and that leaves out a lot in many communities. Many communities the roads and sidewalks do not belong to government but the property owners, GFSZA has no force of law in these communities.

    The law also only is valid for firearms that have been involved in interstate commerce, and does not include antique firearms. Our GA has finally filed a law that would make GFSZA toothless in NC with a modern firearm manufactured in the state of NC. Such as a Para Ordinance firearm. Unless your state has state laws outlawing a antique firearm within a GFSZ, a 1858 Remington with a spare cylinder would be a fine choice for self defense. The solid steel frame of modern steel can be loaded with a 200 gn soft lead bullet with 25 to 30 gn of 3F for respectable performance. I have heard that Pyrodex gives a tad better performance. I can change cylinders in 15 seconds. About double of a speed loader, but still not bad. Or you can do like I do and carry two revolvers.
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    Quote Originally Posted by Samopal View Post
    No I wouldn't, but thanks for the offer.

    Also could someone point me to the actual law that prohibits firearms within 1,000ft? All I can find is the now defunct Gun-Free School Zones Act of 1990.
    The 1990 law was struck down due to violating the commerce clause of the constitution. In response Congress passed the same law with minor wording changes relating to the firearm having moved in or otherwise affected interstate commerce.

    http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

    This is only the federal law. Many states also added a similar state law concerning gun free school zones., so do your homework first.
    Last edited by trailblazer2003; 04-05-2013 at 06:24 PM.

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    Regular Member njkennelly's Avatar
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    Unlicensed OC within 1,000ft of a school?

    Chiming in with a question...

    So if The state that I am currently in (NV) has reciprocity with the state from which my CHCL is from (AR), am I considered to fit the requirement for this exception:

    (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

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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by njkennelly View Post
    So if The state that I am currently in (NV) has reciprocity with the state from which my CHCL is from (AR), am I considered to fit the requirement for this exception:...
    Most of the opinions I have seen say technically no. But since ANY enforcement of this law will see a courtroom, arguing reciprocity is going to be only part of the many things that will favor the defense.

    We pretend this law does not exist in the state of NV anyway.
    Last edited by MAC702; 04-06-2013 at 12:11 AM.
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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by Samopal
    could someone point me to the actual law that prohibits firearms within 1,000ft?
    http://www.law.cornell.edu/uscode/text/18/922

    18USC921
    (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.

    18USC922(q)(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.

    (q)(2)(b) details the exceptions

    ETA: that's obviously only the federal one. I'm on my way to bed & don't have the patience or brain power to look up the MI law right now.
    Last edited by MKEgal; 04-06-2013 at 04:13 AM.
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    Quote Originally Posted by Samopal View Post
    If you live in a state that allows OC without a license, say MI for example, is it lawful to OC within 1,000ft of a school? I've heard many people say federal law prohibits it.

    I can't find any solid answers regarding this, so maybe you guys could help.

    I'm asking because I live in a nice little subdivision with a school about 300ft from my door. I don't have a CPL - is it illegal for me to OC around my neighborhood while I'm out for a walk?
    No. When you obtained a License To Purchase (LTP, MCL 28.422), to purchase a handgun, the verification by a law enforcement authority to determine if you qualify for the license (LTP) is what exempts you from the FGFSZ's.

    http://www.handgunlaw.us/documents/batf_school_zone.pdf

    License To Purchase:
    http://www.legislature.mi.gov/(S(rce...ame=mcl-28-422

    28.422 License to purchase, carry, possess, or transport pistol; issuance; qualifications; applications; sale of pistol; exemptions; nonresidents; forging application; implementation during business hours.
    Sec. 2.

    (1) Except as otherwise provided in this act, a person shall not purchase, carry, possess, or transport a pistol in this state without first having obtained a license for the pistol as prescribed in this section.

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    Informative answer.

    That is why someone from the OP's State needed to chime in. The license to purchase is also the license to possess. "License to purchase" is a lousy name for a carry license!

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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by Samopal View Post
    No I wouldn't, but thanks for the offer.

    Just as a thought: I have a License to Purchase a Pistol right here next to me with my pistol's info on it. In MI, you need this license to buy a handgun, and according to MI law any handgun legally owned (ie. through a purchase license or CPL) can be carried openly. [b]Could this be seen as a license to possess and carry said pistol?[/]

    Also could someone point me to the actual law that prohibits firearms within 1,000ft? All I can find is the now defunct Gun-Free School Zones Act of 1990.
    It clearly is a license to possess as you have written that it is required to obtain a handgun. And that is all that is needed for the federal law.

    As for the federal statute, U.S. Codes 18,921 and 18,922 should answer your question.
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    Be sure to note the requirement of Paragraph (q)(2)(B)(iii): unloaded, and in a locked container. Your purchase license covers your possession of the gun in the GFSZ, but if a Fed wants to be an extreme irritant, expect to be cited under this provision. Your state may, and should, have wording that negates that. Mine doesn't.

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    Quote Originally Posted by bc.cruiser View Post
    Be sure to note the requirement of Paragraph (q)(2)(B)(iii): unloaded, and in a locked container. Your purchase license covers your possession of the gun in the GFSZ, but if a Fed wants to be an extreme irritant, expect to be cited under this provision. Your state may, and should, have wording that negates that. Mine doesn't.
    That paragraph is one of many alternatives conjoined with an "or." It is not the only way to lawfully carry in a GFSZ. It is just one option.

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    Regular Member WalkingWolf's Avatar
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    Once SCOTUS changes expect enforcement of GFSZA, and IMO don't count on a permit that does not specifically point out it is good in school zones to save you. "License to do so" IMO is very clear the permit of license MUST spell out carry in a GFSZ. Right now the feds are not going to chance their precious unconstitutional law ending up in the supreme court.
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    The law IS on the books. A federal law CAN be enforced by a local LEO. If the charge is brought, it must go up the chain, right?

    Is it remotely possible to get a LEO and DA on board, and sacrifice a willing participant and force it to go up now? Yes, I know what that means. I'm just thinking out loud. Man, if I was one of the millions of jobless Americans needing a roof over my head and three squares a day while doing something for the greater good, I'd consider it.

    We still get free cable TV, right?
    Last edited by MAC702; 04-08-2013 at 03:17 PM.
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    If I understand what you are saying, you are suggesting getting an officer and a DA to go along with charging a volunteer for nothing more than violating a federal GFSZ in order to get this into the legal system so that the law can be struck down.

    Interesting concept. Good idea if we can find volunteers.

    Are we sure we can't get this into the courts without a perpetrator...er...victim? I know some rights issues have been fought in court without a criminal defendant under the idea of [I think it is called] prior restraint. Cuz we need to get this law off the books before our tyrant has the chance to appoint another SC justice.
    Last edited by eye95; 04-08-2013 at 04:31 PM.

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    JMHO.....

    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.
    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).”
    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...
    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. “[S]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.
    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?

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    Iowa Code section 724.4B specifically states that bringing weapons onto the grounds of a school is a class D felony. The only exceptions to having a firearm on school grounds are if:

    The person is a peace officer, member of the armed forces or National Guard, or correctional officer, who is carrying the weapon in connection with his or her duties as such; or
    The weapon is unloaded, inside a closed and fastened container or securely wrapped package or in the luggage or cargo compartment (i.e., trunk) of a vehicle; or
    The school has specifically authorized the person to bring the weapon onto school grounds, such as for purposes of conducting an instructional program regarding firearms.

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