Re-thinking CHL & Gun-Free School Zones Act of 1996

[chabouk]

Lots of people know the first GFSZA was overturned in Lopez, but unfortunately not many know that a new version was passed in 1996, slightly modified to meet the SCOTUS objections. Here is the current version:

http://www.law.cornell.edu/uscode/18/922(q).html

18 USC 922(q)(2)

(2)
(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.
(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 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;

Bold added. Now:

We often see it said that the GFSZA doesn't apply to someone who has a license issued by the state where the school is located. I've said it myself on multiple occasions as a warning to those with reciprocal licenses.

But, I've been re-thinking the issue, because that's not what the statute actually says. It says "licensed to do so by the state in which the school zone is located". I have come to believe that someone with a license recognized by a state is then licensed to carry by that state.

It's illegal to have more than one driver's license; you can only have a license issued by one state. But, by having that one license, you are then licensed to drive in all states. No matter who issued the license, you are licensed to drive by all states.

A Texas CHL is only issued by Texas, but the licensee is licensed to carry in every state that recognizes the Texas CHL; the carrier is licensed by the other state to carry by virtue of recognition, just the same as if the license were issued by that state.

Any thoughts by our legal scholars?

[ScottDLS]

I'm not a legal scholar, but I'm absolutely with you on the reciprocal license issue. As far as I can tell the interpretation that the license must be issued by the state where the school is located is only supported by an ATF frequently asked questions (FAQ) on their web site. I haven't seen any court case or legal guidance to the contrary. Without a license, there apparently HAVE been prosecutions under the 1996 law, and even upheld at the appellate level, but from what I understand, not in the 5th federal circuit (which inlcudes Texas). Anyway, constitutionality of the entire law may go back the Supreme Court...

In the meantime: As you point out "(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located" then possession is OK. Just my opinion, but I think someone's got a good case that they are "licensed to do so" by a state that reciprocally recognizes their "out of state license".

However, unlike the TXPC 30.06 and 30.05 arguments I've made in other threads, I'm NOT willing to be the test case, because the federal criminal statute is not clear. The "charge" is a (federal) felony. And the "ride", including bail, is a lot more expensive than a Texas misdemeanor charge.

For the time being, I have resident and non-resident licenses for the states where I would consider carrying in a school zone, but If I had really good reason, I might consider carrying in a place where I had a reciprocal license.

[casingpoint]

someone with a license recognized by a state is then licensed to carry by that state

That is the only logical reading of this law. Otherwise, you probably run into due process problems.

[ELB]

"(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located"

It would seem to turn on whether recognizing another state's CHL is considered to be the same as "licensing" that CHL -- or does "licensing" only consists of actual processing the application and issuing the license. The feds certainly do not see them as the same thing.

In the one case I know of where a CHL holder was prosecuted for being in a school zone, the federal prosecutors went so far as to argue that his CHL did not "qualify" for the exception, even though it was issued by the same state the school zone was in, because the state did not require a federal background check for its CHLs. Neither the district court judge nor the appellate circuit court judge bought this argument -- they essentially ruled that the federal law only requires that he have a state CHL, and the state decides what the rules are for state CHLs.

Given the government's logic on that case, i would expect a federal prosecutor to push for prosecution of someone who had an out-of-state CHL, despite reciprocity. The judges may rule otherwise, but as noted it would be an expensive trip.

[ScottDLS]

In the one case I know of where a CHL holder was prosecuted for being in a school zone, the federal prosecutors went so far as to argue that his CHL did not "qualify" for the exception, even though it was issued by the same state the school zone was in, because the state did not require a federal background check for its CHLs. Neither the district court judge nor the appellate circuit court judge bought this argument -- they essentially ruled that the federal law only requires that he have a state CHL, and the state decides what the rules are for state CHLs.

Given the government's logic on that case, i would expect a federal prosecutor to push for prosecution of someone who had an out-of-state CHL, despite reciprocity. The judges may rule otherwise, but as noted it would be an expensive trip.

Do you know why the prosecutors even went after the CHL holder? Was it a pile on charge, or were they really trying to test the requirements for the background check?

Also, how did the appeals court get involved? Did the district judge dismiss the case and US Attorney appealed the dismissal?

[ELB]

Do you know why the prosecutors even went after the CHL holder? Was it a pile on charge, or were they really trying to test the requirements for the background check?

Also, how did the appeals court get involved? Did the district judge dismiss the case and US Attorney appealed the dismissal?

No I don't. He was originally arrested by a local police department for allegedly holding a pistol against the neck of a student while on school property. (I have not been able to find the disposition of that local case). The only federal charges were for possession of a firearm by a felon and violation of the GFSZA.

The CHL'er, named Tait, had been convicted of three felonies years before in Michigan. Tait later moved to Alabama, got a CHL and a gun, and went his merry way until the locals and the feds got ahold of him.

Tait argued that he was not guilty of possession-by-a-felon because under Michigan law, once he served his time, all his rights were fully restored, with no limitations, thus he was no longer a felon under federal law (at least for the purposes of possessing a firearm).

As for the CHL, the feds argued that he was not eligible for the CHL exception to the GFSZA because a) the Alabama CHL law did not require background checks, and b) Tait was not eligible to possess a pistol under Alabama law because of his previous felony convictions. This didn't fly either -- the GFSZA only requires that the state verify that the licensee is qualified under state law to receive the license, however "lenient" (the court's word) the law may be. Similarly, unless there was a firearms restriction on the restoration of Tait's civil rights (and there wasn't), Alabama law did not treat him as a felon, so he was in fact eligible.

The district (trial) court ruled in favor of Tait on both counts; the US District Attorney appealed, and the 11th Circuit Court of Appeals also ruled in Tait's favor.

The case citation is 202 F3d 1320 United States v. Tait, if you search on that you will find the whole (appellate) case in one of the online databases, like Findlaw.