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Thread: July 25, 2013 ATF Letter Regarding Permit Holders and Fed GFSZA

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    Exclamation July 25, 2013 ATF Letter Regarding Permit Holders and Fed GFSZA

    The Oklahoma Second Amendment Association just released a letter dated July 25, 2013 from the Federal Bureau of Alcohol Tobacco Firearms and Explosives confirming the following facts about Title 18 USC 922(q) "The Federal Gun Free School Zones Act"


    1. An Oklahoma permit holder traveling on public roads can be federally prosecuted for carrying a gun in other states that recognize Oklahoma's permit

    2. An Oklahoma permit holder can be federally prosecuted for discharging their firearm in an act of otherwise lawful self defense.

    3. A conviction under the Federal Gun Free School Zones Act causes a person to become a lifetime prohibited firearm buyer/possessor.

    You can download the letter by clicking the link I am including below to the OK2A website's Fed GFSZA page and clicking the "download" link at the very top of their page.

    http://www.ok2a.org/fedgfsza
    Last edited by Grapeshot; 01-19-2014 at 08:44 AM. Reason: Adapted title

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    Here is the link to the letter (more useful): Link to the letter. Read the letter itself, rather than assuming its representation is accurate.

    Despite the letter indicating otherwise, the word "issued" is not in the law. Absent a court ruling stating otherwise, the possibility that "licensed" can mean "has permission" (even though that permission is gained via reciprocity) remains a possible argument in court. Next, one has to "knowingly" possess the firearm in the Defense-Free-School-Zone. Short of actually driving by the school or a sign, that's kind of tough to prove if you are just traveling around.

    Paragraph 2 of the post above fails to mention that that discharge must be in the school zone. I think that the letter's interpretation is a loser on appeal. Hell, it won't even get to appeal if they can't prove that the defender knew he was in a DFSZ!

    I may have missed it (correct me if I have), but I don't see the letter stating what paragraph 3 of the above post says. That notwithstanding, it is still surely a true statement.

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    Moderator / Administrator Grapeshot's Avatar
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    Not even considering that the GFSZA has seen virtually no use in prosecution as a primary offense, I have little doubt that it will be found to be unconstitutional just as the original was.

    Think that the primary purpose is to frighten those that are not up to speed on the way things really work.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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    Eye95, you linked to the old 2002 letter. There is a new 2013 letter available at the top of the page.

    www.ok2a.org/fedgfsza/

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    Not particularly dismayed, impressed, surprised - considering the dubious source (BATFE).

    The net effect of a reciprocity agreement between 2 states in the instance of CCW licenses/permits is in fact -the mutual issuance of LICENSE /PERMISSION pursuant to the governing provisions of the laws of those states.

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    Quote Originally Posted by rushcreek2 View Post
    Not particularly dismayed, impressed, surprised - considering the dubious source (BATFE).

    The net effect of a reciprocity agreement between 2 states in the instance of CCW licenses/permits is in fact -the mutual issuance of LICENSE /PERMISSION pursuant to the governing provisions of the laws of those states.
    Which has nothing to do with the federal GRSZA or it's interpertation.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member rushcreek2's Avatar
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    As I said..............RECIPROCITY IS A LICENSE - issued by the State in which the schools are located.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by rushcreek2 View Post
    As I said..............RECIPROCITY IS A LICENSE - issued by the State in which the schools are located.
    Reciprosity or recognition is not a license, it is grant to carry in accordance with the state laws - it does not satisfy federal law.

    GFSZA states that one will have a license issued by the state in which the school is located, not another state.

    I would add that this condition cannot be satisfied in Constitutional Carry states where the actor does not have a permit/license from that state.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Not even considering that the GFSZA has seen virtually no use in prosecution as a primary offense, I have little doubt that it will be found to be unconstitutional just as the original was.

    Think that the primary purpose is to frighten those that are not up to speed on the way things really work.
    Correct, Lopez made it clear, commerce clause does not apply once the firearm is removed from commerce.

    Also, the Oklahoma people do not understands the law. Having a license to carry a gun, openly or concealed, has no bearing on the Title 18 U.S.C. Section 922(q)(2)(B)(ii).
    (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;
    It does not say a license to carry a gun, it says a license to poses a gun.
    Last edited by color of law; 01-19-2014 at 02:30 PM.

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    Accomplished Advocate color of law's Avatar
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    Also, Oklahoma's TITLE 21 § 1290.12 and TITLE 21 § 1290.18 demanding a social security number to obtain a carry license is against federal law.

    See Notes under 5 U.S.C. 552a

    Disclosure of Social Security Number

    Pub. L. 93–579, §*7,Dec. 31, 1974, 88 Stat. 1909, provided that:
    “(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.
    “(2) the [The] provisions of paragraph (1) of this subsection shall not apply with respect to—
    “(A) any disclosure which is required by Federal statute, or
    “(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
    “(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.”

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    Quote Originally Posted by Eagle2009 View Post
    Eye95, you linked to the old 2002 letter. There is a new 2013 letter available at the top of the page.

    www.ok2a.org/fedgfsza/
    Thank you for posting the link to the letter you were referencing.

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    Quote Originally Posted by rushcreek2 View Post
    As I said..............RECIPROCITY IS A LICENSE - issued by the State in which the schools are located.
    Reciprocity is not A license. It is not the piece of paper. However, the law does not clearly discuss the piece of paper. It says "is licensed," not "was issued a license." A valid, plain-English reading of "is licensed" is "has permission." Reciprocity grants permission.

    This interpretation has not been tested in court. I ain't volunteering to test it. However, the ATF, notwithstanding its willingness to issue letters to the contrary, doesn't get to make the call in court. A judge and/or jury does. If I ever were arrested under the DFSZA, this is one of the defenses I would put forth.

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    Quote Originally Posted by Grapeshot View Post
    Reciprosity or recognition is not a license, it is grant to carry in accordance with the state laws - it does not satisfy federal law.

    GFSZA states that one will have a license issued by the state in which the school is located, not another state.

    I would add that this condition cannot be satisfied in Constitutional Carry states where the actor does not have a permit/license from that state.
    Where does the word "issued" come from???

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    Whether or not reciprocity counts as a "license" is not the determining factor. If you read the paragraph, in addition to being "licensed" by the state (or political subdivision) it is a requirement that the law enforcement authorities of the state where the school is located verify the individual is qualified to receive the "license." That is the catch. The law enforcement in a state you are visiting has in no way verified that you, the individual, are qualified to receive your reciprocal "license." Therefore it is not valid for federal purposes. The fact is, if you carry in a state other than the one that issued your license, you are breaking the law. You are relying on nothing more than the benevolence of law enforcement to keep you out of prison, and keep you from being a felon.

    We now have two separate ATF letters, one from 2002, and a recent one from 2013 saying the exact same thing. The federal position is clear. Frankly, the law is pretty clear too, no matter how badly we wish it said something different.
    Last edited by Eagle2009; 01-19-2014 at 07:31 PM.

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    That is not what it says. Read it again.

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    Quote Originally Posted by Title 18 USC 922(q)
    (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;
    That is exactly what it says. The exception has two parts. The "license" part and the "verification" part. Both parts must be met for the exception to apply, and the verification part is not met by reciprocity in any way, shape, or form no matter how sympathetic the judge is.
    Last edited by Eagle2009; 01-19-2014 at 07:48 PM.

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    It says what you quoted. It does not say what you said it said.

    You are missing something.

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    Quote Originally Posted by eye95 View Post
    It says what you quoted. It does not say what you said it said.

    You are missing something.
    It sounds like it says the guys issuing you the license must verify your ok to have said license. So I guess you establish that by if you have the license or don't have it. Meaning if you did have it obviously you passed their "verification".

    But that has nothing to do with the the le (atf) guys in the other state. They check of you have a license. You do your good. You don't your bad.

    Am I reading that right?

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    Quote Originally Posted by Primus View Post
    It sounds like it says the guys issuing you the license must verify your ok to have said license. So I guess you establish that by if you have the license or don't have it. Meaning if you did have it obviously you passed their "verification".

    But that has nothing to do with the the le (atf) guys in the other state. They check of you have a license. You do your good. You don't your bad.

    Am I reading that right?

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    As long as the law enforcement authorities in the state that issued your license verified you were qualified to have that license, you are exempt in THAT state from the possession restrictions. You are not exempt in any other state you travel to that recognizes that license. Basically your license is only good for the state that issued it, and none of the states that recognize it.

    You can still be prosecuted for discharge in the state that issued your license, as stated in the July 2013 ATF letter.

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    It says that the State's law has to require verification of the individuals qualification for the license. This is accomplished in Ohio by only reciprocating with States that require background checks.


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    Quote Originally Posted by eye95 View Post
    It says that the State's law has to require verification of the individuals qualification for the license. This is accomplished in Ohio by only reciprocating with States that require background checks.
    It is still the state that issued your permit that did the individual verification. Ohio may recognize a class of persons (permit holders from reciprocating states that perform background checks), but there is still no individual verification by Ohio law enforcement within this class (unless it is an Ohio permit we are talking about). Although I agree that is the argument your defense attorney should be making when you are facing felony charges.

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    The act of the police verifying that a carrier has a reciprocated license verifies the qualification. Done.


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    Quote Originally Posted by eye95 View Post
    The act of the police verifying that a carrier has a reciprocated license verifies the qualification. Done.

    <o>
    If the Ohio law required that before carrying a gun in Ohio with an out-of-state permit, you had to go to a police station in Ohio, and have your out of state permit verified, then I would agree with you. That isn't the way it works though. Ohio police do not verify an individual carrier's out-of-state permit before they "license" them to carry a gun in Ohio. The ATF position is clear. You can be arrested and charged with a felony. Even if you somehow managed to beat the charge, you would be bankrupt, unless you have A LOT more money than most us.
    Last edited by Eagle2009; 01-19-2014 at 10:08 PM.

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    Before anyone could be charged under the DFSZ law, a cop is going to ask for the license. Again, now the qualification has been verified.


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    Quote Originally Posted by eye95 View Post
    Before anyone could be charged under the DFSZ law, a cop is going to ask for the license. Again, now the qualification has been verified.


    <o>
    Ohio law requires you to inform police during a stop. It does not require that Ohio police verify the reciprocal "license" BEFORE it is issued, as the federal law requires for you to be exempt. Now you are arguing that an out-of-state permit holder is not "licensed" or "verified" in Ohio until AFTER they get pulled over and their out-of-state license checked. Under this logic, you would definitely be guilty of the felony for having the gun in the school zone before the officer looked at your license. You can't get caught driving a car without a license and then go to court and say, "I'm not guilty because I got a driver's license the day after I got caught driving without one."
    Last edited by Eagle2009; 01-19-2014 at 10:27 PM.

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