18 USC 922(q)(2) Federal Law - 1000 feet of a school zone

This is a discussion on 18 USC 922(q)(2) Federal Law - 1000 feet of a school zone within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by cwblanco After further searching, I have learned that you are indeed correct. In the case of United States v. Lopez the U.S. ...

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Thread: 18 USC 922(q)(2) Federal Law - 1000 feet of a school zone

  1. #16
    Member Array C Paul Lincoln's Avatar
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    Quote Originally Posted by cwblanco View Post
    After further searching, I have learned that you are indeed correct. In the case of United States v. Lopez the U.S. Supreme Court did rule that the school zone statute was unconsititutional because the school zone had nothing to do with interstate commerce.
    The Court ruled that the original Gun Free School Zones Act was unconstitutional because the federal government didn't have jurisdiction. The bill was amended and passed the year after Lopez as the Gun Free School Zones Act of 1995, based on guidance the Court gave in its ruling. From the Congressional Record:

    The original act made it a Federal crime to knowingly bring a gun within 1,000 feet of a school or to fire a gun in these zones, with carefully crafted exceptions. The Gun-Free School Zones Act of 1995 does exactly what the old act did. However, it adds a requirement that the prosecutor prove as part of each prosecution that the gun moved in or affected interstate or foreign commerce.
    As it exists in its current form, the constitutionalitty of 18 USC 922(q)(2) has not been tested, however it is a chargeable federal offense that is on the books.

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  3. #17
    Member Array celticredneck's Avatar
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    At least two schools in Hopewell Va are located less than 1000 feet from main streets. I've driven by them many times, open carrying a handgun, or during the hunting season had a shotgun or rifle in my gun rack. I suppose, that by the letter of the law, I was in violation.

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    Quote Originally Posted by celticredneck View Post
    At least two schools in Hopewell Va are located less than 1000 feet from main streets. I've driven by them many times, open carrying a handgun, or during the hunting season had a shotgun or rifle in my gun rack. I suppose, that by the letter of the law, I was in violation.
    Yes,1000' is a long way.A law like this would make it illegal to be able to have a firearm in your possession in most populated areas.

    Gun free school zones are a falacy!This is just another attempt to disarm the population!

  5. #19
    Member Array C Paul Lincoln's Avatar
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    Quote Originally Posted by celticredneck View Post
    At least two schools in Hopewell Va are located less than 1000 feet from main streets. I've driven by them many times, open carrying a handgun, or during the hunting season had a shotgun or rifle in my gun rack. I suppose, that by the letter of the law, I was in violation.
    You were not violating federal law if you have a concealed carry permit issued by Virginia.

    CP Lincoln

  6. #20
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    Thumbs up Thank you.

    Quote Originally Posted by cwblanco View Post
    ....

    I am glad that you (and others) pointed that out. The statute is still on the books, but the school zone portion is unconstitutional, so says the United States Supreme Court.

    That case plus the more recent Heller case suggests that the Supreme Court falls in the right direction much of the time.


    Got to love DC site -- so much good info from knowledgeable folk.

    I had missed this decision. It sure puts an end to an ongoing concern.


    Syllabus

    SUPREME COURT OF THE UNITED STATES


    --------------------------------------------------------------------------------

    514 U.S. 549

    United States v. Lopez
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

    --------------------------------------------------------------------------------

    No. 93-1260 Argued: November 8, 1994 --- Decided:

    --------------------------------------------------------------------------------

    After respondent, then a 12th-grade student, carried a concealed handgun into his high school, he was charged with violating the Gun-Free School Zones Act of 1990, which forbids "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone," 18 U.S.C. 922(q)(1)(A). The District Court denied his motion to dismiss the indictment, concluding that 922(q) is a constitutional exercise of Congress' power to regulate activities in and affecting commerce. In reversing, the Court of Appeals held that, in light of what it characterized as insufficient congressional findings and legislative history, 922(q) is invalid as beyond Congress' power under the Commerce Clause.

    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. Section 922(q) is a criminal statute that, by its terms, has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with 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 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. Pp. ___.

    REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O'CONNOR, J., joined. THOMAS, J., filed a concurring opinion. STEVENS, J., and SOUTER, J., filed dissenting opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
    -------- -----------------------------------
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  7. #21
    Member Array C Paul Lincoln's Avatar
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    Quote Originally Posted by DaveH View Post

    I had missed this decision. It sure puts an end to an ongoing concern.
    Whoa!! Read the whole thread, and look at the dates of the legislation and the case! As I said in my first post, the Gun Free School Zones Act was amended and passed again in 1995 -- after the US v. Lopez case.

    The only change to the GFSZA of 1995 was an additional requirement for prosecution -- demonstration that the firearm moved in interstate commerce or affected interstate commerce (which is nearly every gun in America). If the prosecutor can show that the gun moved across state lines, it gives the Feds jurisdication.

    The federal statute that limits possession of guns within 1000 feet of a school is on the books, and according to the Lopez ruling, would likely withstand constitutional tests as amended.

    CP Lincoln

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    Quote Originally Posted by C Paul Lincoln View Post
    The federal statute that limits possession of guns within 1000 feet of a school is on the books, and according to the Lopez ruling, would likely withstand constitutional tests as amended.
    I live just over 1000 feet from an elementary school, so I'm fine. There are many houses here well within the limit; so if a resident of one of these were to apply for a concealed weapons permit (as it's called in this county), he should be arrested for violating this statute rather than be issued the permit?

  9. #23
    Member Array C Paul Lincoln's Avatar
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    Quote Originally Posted by Anubis View Post
    I live just over 1000 feet from an elementary school, so I'm fine. There are many houses here well within the limit; so if a resident of one of these were to apply for a concealed weapons permit (as it's called in this county), he should be arrested for violating this statute rather than be issued the permit?
    Two separate issues. Does application for a concealed weapons permit necessarily mean you have a weapon in "the zone"? Private property is exempted, but once you leave your property with a weapon you are technically in violation of the statute.

    The states don't seem to pay much attention to the federal statute, but it is there and a chargeable federal offense.

    In Washington state, prosecutors have tried unsuccessfully to raise possession of a gun on school grounds from a gross misdemeanor to a felony. They say the penalty isn't great enough as a gross misdemeanor. I asked why they didn't turn the cases over to the feds for prosecution -- the penalty is up to five years in prison, which trumps a Class C Felony by four years. They just gave me a blank stare and didn't have an answer.

    I don't like the 1000-foot zone statute. I think it infringes on 2A rights unreasonably. What happens if you live in a state that doesn't issue CC permits? I don't like victim zones in general. But, the law in on the books and people should not be misguided into believing that the Supreme Court overturned the statute.

    CP Lincoln

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    This is absolutely one of the most crucial discussions we have had here in a long time. This situation is a great example of how people can so easily and innocently get themselves in big trouble. Worse, in a way our state encourages the behavior that could lead to trouble by allowing unlicensed car carriage.

    Even before unlicensed car carriage was allowed here, there were many situations (travel, to and from business) in which folks might have legally had a handgun with them under state law, but been illegal under Federal law--assuming those who say this law is still valid and a chargeable offense are correct.

    Wow, how many 100s of thousands of violations must be happening each month by folks who feel certain they are obeying the law?

    So, a practical question. Have there been any charges made under this law against folks who otherwise were just minding their own business? Does anyone know how to find out? Know the answer? My guess is that Federal prosecutors have other things to deal and won't charge this one as a "naked" stand alone crime, and will only use this one when other crimes have been committed as well; e.g., dealing near a school while armed. Does anyone know the guidelines used?

  11. #25
    VIP Member Array mlr1m's Avatar
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    Every home in my town is within 1000 feet of a school.
    Another thing to consider is home schooling. At present time the policy is that the 1000 foot does not apply to them. But I do not believe that is law, just present policy.

    Michael

  12. #26
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    Thumbs down

    Quote Originally Posted by C Paul Lincoln View Post
    Whoa!! Read the whole thread, and look at the dates of the legislation and the case! As I said in my first post, the Gun Free School Zones Act was amended and passed again in 1995 -- after the US v. Lopez case.

    CP Lincoln
    Whoops!

    Dang it!!!

    Still got to love DC site -- so much good info from knowledgeable folk.

    I had missed your post.

    So it is still an ongoing concern -- including the issue of Out-of-State CHPs not cutting it.
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  13. #27
    Distinguished Member Array Anubis's Avatar
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    Quote Originally Posted by C Paul Lincoln View Post
    Two separate issues. Does application for a concealed weapons permit necessarily mean you have a weapon in "the zone"?
    Logically speaking, no; but I can't imagine someone applying for a permit who doesn't plan on leaving home with a firearm.

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