Question about OC

[William Royal Hatch]

I recently bought a handgun and had a question about OC. I try to stay in shape, so I go running everyday for about 2 miles. At one point in my normal path I am directly across the street from a middle school, Is it legal for me to carry on my route or do I need to find a new one.

 

[Grapeshot]

I recently bought a handgun and had a question about OC. I try to stay in shape, so I go running everyday for about 2 miles. At one point in my normal path I am directly across the street from a middle school, Is it legal for me to carry on my route or do I need to find a new one.

Welcome to OCDO William.

You do not indicate whether you have a permit to conceal - yes it makes a difference, even if you are OCing.

In layman's terms, the Gun Free School Zone (GFSZ) Act says that you cannot have a gun within 1000 ft of a K-12 school except with certain exceptions. One of those exceptions is if you have a permit to conceal issued by the state in which the school is located.
http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

 

[William Royal Hatch]

I do not have a concealed carry license as I am only 19. So I'll take that to mean I need a new route. Would I make a difference if the magazine was removed when within 1000 feet of the school?

 

[Grapeshot]

I do not have a concealed carry license as I am only 19. So I'll take that to mean I need a new route. Would I make a difference if the magazine was removed when within 1000 feet of the school?

Must also be in a locked container - read the law, it is not lengthy.

(I) not loaded; and
(II) in a locked container, or a locked firearms rack
http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf

Note that it is very difficult to drive through most towns and not infringe on the 1000 ft span of GFSZ.

This is seldom used as a primary offense, but could be. The original 1990 GFSZ Act was found to be unconstitutional. The new revision in 1995 has been tested in court and has been upheld.

Convictions upheld post-Lopez under the revised Gun Free School Zone Act include:

• United States v Danks (Eighth Circuit 1999)
• United States v Tait (Eleventh Circuit 2000)
• United States v Haywood (Third Circuit 2002)
• United States v Smith (Sixth Circuit 2005)
• United States v Dorsey (Ninth Circuit 2005)
• United States v Nieves-Castaño (First Circuit 2007)
• United States v Weekes (Third Circuit 2007)
• United States v Benally (Tenth Circuit 2007)
• United States v Cruz-Rodriguez (First Circuit 2008)

 

[WalkingWolf]

I do not have a concealed carry license as I am only 19. So I'll take that to mean I need a new route. Would I make a difference if the magazine was removed when within 1000 feet of the school?

WRH you can carry a antique firearm within the school zone by the federal law. Better have a copy of the law with you, and the federal descriptions of firearm and antique firearm. Also a firearm that has not been in interstate commerce(firearm manufactured within your state, and has not been out of state). But again make sure you have proof with you that the firearm was manufactured intrastate.

 

[WalkingWolf]

Won't work. See Wickard v. Filburn, US Supreme Court:
http://en.wikipedia.org/wiki/Wickard_v._Filburn



The Supreme Court has given the US Government the power to regulate anything they want to through a gross abuse of the interstate commerce clause of the Constitution.

Apples to oranges~the first GRSZ law was found unconstitutional on the basis of only guns involved in interstate commerce fall into the jurisdiction of the law.

 

[AH.74]

Won't work. See Wickard v. Filburn, US Supreme Court:

The Supreme Court has given the US Government the power to regulate anything they want to through a gross abuse of the interstate commerce clause of the Constitution.

There has been a lot of case law on this issue since 1942 and things have changed.

 

[AH.74]

Citations, please?

It's been 70 years since that decision. You don't think things have changed? There have been countless cases on the use of the interstate commerce clause.

How about US v. Lopez from 1995, which dealt specifically with a situation involving possession of a handgun and the GFSZA? That case directly refutes the argument you quoted above.

 

[AH.74]

It was a BS tactic designed to circumvent the decision of the court, whose reasoning still stands as valid in my opinion.

If you followed the reasoning in the act, ALL crimes with guns would be federal, because ALL guns would fit the description.

That is not the case in reality.

 

[Grapeshot]

--snip-- The current GFSZA has not been challenged, yet.

Oh but it has.

Repeating the information in post #5:

Convictions upheld post-Lopez under the revised Gun Free School Zone Act include:

• United States v Danks (Eighth Circuit 1999)
• United States v Tait (Eleventh Circuit 2000)
• United States v Haywood (Third Circuit 2002)
• United States v Smith (Sixth Circuit 2005)
• United States v Dorsey (Ninth Circuit 2005)
• United States v Nieves-Castaño (First Circuit 2007)
• United States v Weekes (Third Circuit 2007)
• United States v Benally (Tenth Circuit 2007)
• United States v Cruz-Rodriguez (First Circuit 2008)

 

[WalkingWolf]

Citations, please?



However, the current law has not been struck down. And what does the current law say?

(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.

So let's say I am carrying a New Mexico Firearms Co. gun, made in Roswell, New Mexico. First, the government could claim that by buying a New Mexico Firearms Co. gun I have affected interstate commerce because I did not buy a Smith and Wesson.

Second, the gun says Made in New Mexico.... but where did the steel come from? Where did the plastic grips come from? How about the machinery used in manufacture, was that all New Mexico machinery? How about the electricity used to run the plant?

Anybody who relies upon not "otherwise affecting interstate commerce" as their sole defense in a Federal criminal action is simply....well, foolish.

Lopez they already gave the reason for the throwing out the law is exactly what you are claiming. They have to PROVE that is otherwise affects, and in Lopez the mere firearm is not enough. There are few cases of the law even being prosecuted and those cases are incident to another crime. As long as the SCOTUS does not lose a justice, I have no doubt this law will be overturned if it reaches their doorstep. IMO that is the reason they have not gone wild with charging it. Then there is the ruling against AZ with immigration laws, so it would appear that local and state police do not have the authority to arrest for federal statutes alone. I somehow don't think patrolling school zones is a top priority for the FBI, or even BATF.

 

[Grapeshot]

Originally Posted by Grapeshot
Oh but it has.

Repeating the information in post #5:

Convictions upheld post-Lopez under the revised Gun Free School Zone Act include:

--snipped--

My mistake.

Until recently I was of the same opinion - that it had not been tested. Then I found the mother load.

Still have confidence that SCOTUS will strike down this latest variant if and when they decide to hear arguments.

 

[AH.74]

So where does 30-7-2.1 fit in with all of this?

"Unlawful carrying of a deadly weapon on school premises."

Specifically, A(5): (except by) a person older than 19 years of age on school premises in a private automobile or other private means of conveyance, for lawful protection of the person's or another's person or property."

I realize the OP started all this with a discussion of running by a school. But most people moving within the proximity of the regulation are doing so in a vehicle. And according to the law you can have one in your car or "conveyance" while on school grounds- IOW, in the parking lot.

 

[Eagle2009]

It's been 70 years since that decision. You don't think things have changed? There have been countless cases on the use of the interstate commerce clause.

How about US v. Lopez from 1995, which dealt specifically with a situation involving possession of a handgun and the GFSZA? That case directly refutes the argument you quoted above.

Yes, there have been many cases regarding interstate commerce clause since Filburn, and nearly all of them have been decided in the federal government's favor. One of the bigger landmark cases is United States v Raich in which the Supreme Court basically reaffirmed all of the premises of the Filburn case.


The reason the original GFSZA law was struck down in Lopez is because Congress literally forgot to add the jurisdictional interstate commerce hook that they have been inserting into every federal law since the early 20th Century.

With this "jurisdictional hook" the current GFSZA law is no different than the Gun Control Act of 1968 which prohibits:

felons from receiving, possessing or transporting guns in commerce or affecting commerce.

There is enough federal case law upholding the felon in possession law to fill entire warehouses, and if the Supreme Court voided the revised GFSZA with the interstate commerce hook, they would also have to void the felon in possession law, and basically every other federal criminal statute that applies to individuals. If you think you will beat the revised GFSZA by arguing you didn't effect interstate commerce, or that the federal government has no authority to enact such a law, you will be playing bingo with the other federal prisoners that thought they were going to beat the felon in possession law by arguing that they didn't effect interstate commerce either.

 

[nuc65]

Lopez they already gave the reason for the throwing out the law is exactly what you are claiming. They have to PROVE that is otherwise affects, and in Lopez the mere firearm is not enough. There are few cases of the law even being prosecuted and those cases are incident to another crime. As long as the SCOTUS does not lose a justice, I have no doubt this law will be overturned if it reaches their doorstep. IMO that is the reason they have not gone wild with charging it. Then there is the ruling against AZ with immigration laws, so it would appear that local and state police do not have the authority to arrest for federal statutes alone. I somehow don't think patrolling school zones is a top priority for the FBI, or even BATF.

Which is interesting and contrary to the constitution whereby only state LEOs have arrest/LE capacity.