OC on Motorcycle - Passing by Schools

[dmatting]

I OC while I ride to/from work. No matter what route I take I am guaranteed to pass by at least two schools. Actually, I could cut that down to one school but it would mean going about 10 to 15 minutes in a round-about route. I guess that's not horrible - just means more time on the bike. Still means passing at least one school, though.

Anyway, when I go to work in my truck, I don't worry about it at all. But when I'm on the bike, the gun is on my right hip for all to see. Do the Gun Free School Zones include simply driving through them? I haven't had any problems but I would hate to get pulled over on some stupid violation like that but I also don't want to have to stuff the gun under my leather jacket.

Does anyone know the law(s) pertaining to this?

Thanks

 

[Grapeshot]

Yep - GFSZ includes walking, riding, standing, or crawling. The only real protection is having a permit from the state in which the school is located. While I have not known a violation to be charged as a primary offense, there is always a risk and doing so would violate the law.
I know....that just ain't right.

 

[dmatting]

I have my NC CHP. Is that the only stipulation (simply having it on me) or do I have to be carrying concealed in order for that to be effective?

Of course, if I carried concealed while riding I would likely not be asking these questions...

 

[Grapeshot]

I have my NC CHP. Is that the only stipulation (simply having it on me) or do I have to be carrying concealed in order for that to be effective?

Of course, if I carried concealed while riding I would likely not be asking these questions...

Your permit doesn't say must be carried concealed does it? It allows you to conceal.

The federal law does not stipulate how the gun should be carried, only that the individual have a permit. I routinely OC in GFSZs in Va. but to do so in NC would be illegal for me technically - makes no sense does it.
http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

 

[carolina guy]

Hmm...not so sure...

Your permit doesn't say must be carried concealed does it? It allows you to conceal.

The federal law does not stipulate how the gun should be carried, only that the individual have a permit. I routinely OC in GFSZs in Va. but to do so in NC would be illegal for me technically - makes no sense does it.
http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

From the GFSZA:

"(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 obtain s 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;"​

Since NC does not license private people to have nor prohibit them from having a firearm without a permit, I think that part B(ii) might just be moot.

The NC CC permit only allows an individual that is otherwise allowed to carry a pistol, to do so concealed. In either case, you are not allowed to bring it ON school property, but are not prohibited from passing by since those are public roadways.

Keep in mind there are quite a few schools that are within 1000 feet of a state highway, or even an interstate...that could make someone illegal without even knowing the school was there, or how far it was from their lane of travel.

I would also temper this in light of the recent SCOTUS decisions...sounds like an illegal encroachment on 2A to me.

 

[Grapeshot]

From the GFSZA:

"(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 obtain s 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;"​

Since NC does not license private people to have nor prohibit them from having a firearm without a permit, I think that part B(ii) might just be moot.

The NC CC permit only allows an individual that is otherwise allowed to carry a pistol, to do so concealed. In either case, you are not allowed to bring it ON school property, but are not prohibited from passing by since those are public roadways.

Actually it is not moot at all. B(ii) is the operative/definitive clause allowing those with permits to carry in GFSZ.

 

[dmatting]

It's good that the law is so clear. :uhoh:

I'm still not sure what the right answer is. I figure I can conceal without issue but I would rather OC.

Grapeshot, it sounds as though your interpretation of it is that my CHP allows me to carry in either mode through the GFSZ. Please correct me if I am interpreting your comments incorrectly.

 

[ArmySoldier22]

I've actually asked this same question on here before too. Every direction I go, I pass a school. For legal reasons, I won't say whether or not that's stopped me from OCing, but I'm sure you can guess the answer. I may or may not have passed by police officers directing traffic in said areas as well, without issue.

 

[carolina guy]

I know this could be taken as a "nitpicky" view... and, yes, I know it is sideline quarterbacking, and not from a jail cell. IANAL!

1) Consider the definition of a "school"...

18 USC § 921 Definitions
(a) As used in this chapter—
(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.
​

This means that ALL homeschools in the US also qualify as a "school" which means that nobody can travel past any home where children are homeschooled. Now, the courts have included a phrase similar to the person should have "resonably known there were in a school zone..." but given the increasing numbers of people that homeschool (myself included), you might have to "reasonably" conclude that ANY street that has children, might include some that homeschool making that street off limits for the "unlicensed" to travel with a firearm. Here is a good writeup along these lines:

http://gunowners.org/fs9611.htm

http://trib.com/news/state-and-regional/article_faff193d-5394-574d-a7c6-0e59e221237e.html

In Cabarrus country alone, there are over 1000 registered homeschools. Most are on different streets, making over 1000 streets in this county a "no-go" zone since this information is available on the states website (www.ncdnpe.org).

2) The right to have children, raise and educate your children, and maintain a household have been declared "fundamental rights" and are subject to "strict scrutiny" when laws/government actions interfer. When you consider the hurdles that the government must overcome to exercise control in the presence of a "fundamental" right, it is unlikely that this law could survive had it been challenged on this basis. Here are a few cases:

Meyer v. Nebraska, 262 U.S. 390 (1923).
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Farrington v. Tokushige, 273 U.S. 284 (1927) at 298.
Prince v. Massachusetts, 321 U.S. 158 (1944).
Griswold v. Connecticut, 381 U.S. 479, (1965) at 486.
Wisconsin v. Yoder, 406 U.S. 205 at 233.
Paris Adult Theater v. Slaton, 413 US 49, 65 (1973)
Carey v. Population Services International, 431 US 678, 684-686 (1977)
Maher v. Roe, 432 US 464, 476-479 (1977)
Parham v. J.R., 442 US 584, 602-606 (1979).
Santosky v. Kramer, 455 US 745, 753 (1982)
City of Akron v. Akron Center for Reproductive Health Inc., 462 US 416, 461 (1983)
Lehr v. Robertson, 463 US 248, 257-258 (1983)
Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747 (1986)
Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987)
Michael H. v. Gerald, 491 U.S. 110 (1989)
Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
Hodgson v. Minnesota, 497 U.S. 417 (1990)
Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)
Troxel v. Granville, 530 U.S. 57 (2000)
​

3) Recent SCOTUS rulings have applied the the 2A directly to the states.

4) It would not be too hard to argue that the 2A is the "license" granted by the Constitution for the people to keep AND bear arms.

5) The right to travel is a common law right that is upheld by the Bill of Rights, so restricting the ability to travel legally by placing ill-defined school zones is vague at best. Consider that there are over 98,000 PUBLIC schools in the US (over 2,500 in NC alone)...this does not include private, parochial or home schools. So you have to surrender your right to self defense to exercise your right to free movement?

6) The size of the vaguely placed zones is arbitrary at best...where are the edges of the schools grounds so you can start to measure 1000' from them?

7) All of the court cases that have been appealed post-1995 have involved other crimes (drugs, robbery, etc) and not simply being in peaceful possession within 1000' of a school.

8) It has NOT been challenged in the 4th Circuit (covers NC, VA, SC, WV, DC, and MD) so all of the other appeals from the other circuit courts are not binding on the ones in this Circuit.

So...that said, I don't think anyone who is not breaking some other law really has anything to worry about...there are hundreds of thousands of potential federal felons that are peacefully traveling the highways and streets everyday, and thousands of them are off-duty police officers!

 

[carolina guy]

Might be just as simple as...

everyone remembering that a right not defended can be lost.

The 2nd Amendment is your license to carry. It was issued by the Founders in 1789 (well 1787, technically). Why make this more complicated??

A law that makes it almost impossible to peacefully exercise your RIGHTS is tyranny.

The Founders expected that the people would not obey unjust and unconstitutional laws...of course, they also expected that the citizenry would be educated and know an unconstitutional law when they see one. ;-)

According to < http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2010/pdf/GPO-CONAN-2010.pdf > the SCOTUS found that the "right to keep and bear arms extended beyond the context of militia service to include self-defense."

I choose to protect myself and my family and don't think that criminals are too concerned for how close to a school they are when they break the law. (Criminal thinking: "hmm...is this 900' or 1000'...I need to rob the next person and don't want to get in trouble for being too close..." )

 

[WalkingWolf]

IMO the law is intentionally vague, I believe that BATF has made statements that a permit does allow carry. BUT the law does not say anything about concealed carry permit. It says licensed to do so, and most if not all permits do not license the holder specifically to carry in a GFSZ. It is just not there in the law. There are two clear ways to get around the law that is actually worded in the law. Carry an antique firearm as defined by federal statutes, or carry a gun manufactured in your state that has not in any way been in interstate commerce. Though you will get hassled by some numpty officer that does not actually read and understand the law. If the bias of SCOTUS ever shifts to the left considerably, expect enforcement to be much more active, again IMO. Right now at the losses from SCOTUS handed to the left they just do not want to chance it.

I carry a antique firearm whenever I will encounter a GFSZ.

 

[NC-Heel]

The GFSZ law is a federal tack on charge. No local or state cop is going to stop you because you are driving by a school. This law is intended for people that conduct illegal activity near a school (sell drugs, traffic weapons, etc.) have a weapon and those felonies become federal crimes when they throw in the GFSZ charge.

 

[Dreamer]

So...that said, I don't think anyone who is not breaking some other law really has anything to worry about...there are hundreds of thousands of potential federal felons that are peacefully traveling the highways and streets everyday, and thousands of them are off-duty police officers!

LEOs are specifically exempt from the Federal GFSZ Act.

Because they are SOOOO much more trustworthy than "regular citizens" when it comes to carrying and using firearms... :banghead:

 

[Grapeshot]

It's good that the law is so clear. :uhoh:

I'm still not sure what the right answer is. I figure I can conceal without issue but I would rather OC.

Grapeshot, it sounds as though your interpretation of it is that my CHP allows me to carry in either mode through the GFSZ. Please correct me if I am interpreting your comments incorrectly.

That is precisely my point. I do regularly OC well within the proscribed GFSZ distance, have stood and had pleasant conversations with LEOs about various things too.

IMO eventually this law will be found to be unconstitutional just as the prior version was.

 

[dmatting]

Alright - I'm not going to worry about it - I'll carry on as usual with it OC on my hip.

Thanks

 

[WalkingWolf]

The really ironic result of the law is it actually impedes commerce, that should be enough to have it thrown out in itself.

 

[carolina guy]

LEOs are specifically exempt from the Federal GFSZ Act.

Because they are SOOOO much more trustworthy than "regular citizens" when it comes to carrying and using firearms... :banghead:

Actually, off duty LEO's are not exempt...that is the kicker only a "...law enforcement officer acting in his or her official capacity."

Otherwise, they are required to have the same "license" that the rest of us do else they are "guilty" as well.

But I agree...from what I have seen, this looks like an add-on charge for drug dealers and the type to keep them behind bars a bit longer. I still think it is unconstitutional, but hey, if they don't (and haven't) been making the correct arguments in court, I guess they get what they deserve.

 

[carolina guy]

The really ironic result of the law is it actually impedes commerce, that should be enough to have it thrown out in itself.

That would be one of the other challenges I would make on its constitutionality...just because a gun was involved at some point in it's existence in interstate commerce doesn't mean that you riding with it on your hip is, in anyway, shape, manner or form CURRENTLY involved in interstate commerce unless you are being PAID to carry it on your hip.

Since my carry pistol pre dates the GFSZ act, wouldn't including it be an ex post facto law?

 

[WalkingWolf]

That would be one of the other challenges I would make on its constitutionality...just because a gun was involved at some point in it's existence in interstate commerce doesn't mean that you riding with it on your hip is, in anyway, shape, manner or form CURRENTLY involved in interstate commerce unless you are being PAID to carry it on your hip.

Since my carry pistol pre dates the GFSZ act, wouldn't including it be an ex post facto law?

The gun would need to fit the federal definition of antique firearm as federal firearm definitions exclude antique firearms. The law itself clearly excludes guns manufactured and that have stayed within the boarders of the state. The law IMO restricts movement to a business within the school zone of armed customers, that hinders all commerce to that business. Again IMO the law was clearly passed to intimidate lawful citizens from carrying firearms. The legislators of this bill are well aware that in a urban environment there is little real estate that is not within a GFSZ. The only reason again IMO they have restrained themselves is SCOTUS. I pray everyday for the health of the justices, may they live very long, and stay on the bench.

I carry either a 51 Navy, or 58 Remy, both very capable of providing self defense, both antique firearms. The Remy can be carried safely with six loaded chambers, and can be swiftly reloaded with preloaded cylinders. Not only will these guns do the job if needed, they have the added benefit of making a big boom, and setting the recipient on fire if in close range. This besides the hole will throw any attacker off his game.

 

[Medic1210]

Actually it is not moot at all. B(ii) is the operative/definitive clause allowing those with permits to carry in GFSZ.

I am curious if a permit is considered the same as a license, legally, or is licensed referring to LEO and other armed security personnel? Reason I ask is, in my field of work, there is a big difference with being permitted to perform a task in the hospital as opposed to being licensed by the state. Same goes when comparing a learner's permit versus an actual driver's license. Or am I misinterpreting something? I just wonder if this clarification has been specifically ruled in a court of law? I'm asking for my own education, and not to be confrontational.