LEGAL ISSUES RELATING TO THE USE OF DEADLY FORCE
By Michael P. Anthony
(With updated 2010 legislation, D.C. v. Heller & McDonald v. Chicago notes)
(Version 14.0 - July, 2010)
There are two parts to the new "Gun Free School Zones Act." The
first part makes it unlawful to "knowingly 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). There are seven exceptions to this
prohibition:
(...)
2. if the individual is licensed by the State in which the
school zone is located to carry a firearm, and the licensing
requirements include verification that the individual is qualified
under law to receive the license;
(...)
For the Arizona resident, the "Gun Free School Zones Act" restricts
rights under state law. Arizona law permits carrying a firearm (concealed
or openly) on your person or in an automobile, but federal law now
prohibits doing so in a federal "school zone," except as specifically
permitted under the federal statute. Arizona CCW permittees appear to
qualify under the federal law to carry their guns in the federal school
zones. However, a CCW permittee is not authorized to discharge or
attempt to discharge a gun in a federal school zone, even though doing so might be justifiable under state law and viewed as a moral obligation
under certain circumstances (e.g., to save innocent school children from
an armed attacker.
As explained earlier in this treatise, under Arizona law, a person
may use a firearm to defend against imminent threat of death or serious
bodily injury or to stop specified criminal acts (e.g., rape, robbery,
kidnapping, etc.). However, it is illegal under the "Gun Free School Zones
Act" to knowingly or recklessly discharge or attempt to discharge a gun ina federal school zone.
A violation of the "Gun Free School Zones Act" carries a federal
penalty of fine and imprisonment for up to five years. 18 U.S.C. §
924(a)(4). Since self-defense and other Arizona "justification" laws do not apply to the "Gun Free School Zones Act," a person who knowingly
discharges a firearm in a federal school zone in self-defense or to save
children from an armed madman would be subject to prosecution by
federal authorities and sentencing up to five years in federal prison. No
doubt the members of congress who voted for the "Gun Free School
Zones Act" would assert that no federal prosecutor would pursue such a
case. But if no federal prosecutor should pursue such a case, why does
the "Gun Free School Zones Act" make no exceptions for those who use
a firearm legally under state law? The reality is that people have been
prosecuted and imprisoned in the United States for unlawfully discharging a firearm while lawfully acting in justified self-defense. Therefore, one should be aware that, if one fires a gun within a federal gun free school zone to justifiably defend oneself or someone else, one risks federal criminal prosecution.
