federal law on weapons in school area

[ptrdsmn]

Can someone clarify the law? I'm in New Hampshire. Open carry state...I have a pistol/revolver lic.....is it legal for me to walk by a school within 1000 ft as long as I'm legal to carry? Can I open carry or does It have to be concealed?

 

[self preservation]

Can someone clarify the law? I'm in New Hampshire. Open carry state...I have a pistol/revolver lic.....is it legal for me to walk by a school within 1000 ft as long as I'm legal to carry? Can I open carry or does It have to be concealed?

With a license you are exempt from the 1000 ft school zone in the state that you are licensed in. As far as OC vs CC...that depends on what the state law says. The federal level doesn't care.

 

[ptrdsmn]

That's how I thought. NH doesn't have state laws against. I opened carried an hour ago past a k-12 school most of the way but then put my sweat shirt over it just so not to be hassled. People were slowing down in cars looking at me walking down main st open carry.

 

[EMNofSeattle]

This is not legal advice nor is it encouragement to break the law, buuuutttt..

I am not aware of the ATF yanking anyone merely for OCing within 1000 feet of a skrool, every single case I am aware of involving GFSZA occurs after the local or state law enforcement/courts have arrested and charged that individual with something else dirty then the feds nail them for GFSZA

The feds may come in and charge GFSZA if

... you're selling drugs at skrool while packing
... you violate a no-contact order or try to kidnap a student while packing
... you beat up a student or employee of the school while packing.

something along those lines

I have NEVER heard of the ATF just laying in wait for some oik to come along lugging their gun just one inch inside the line, every single GFSZA charge I know of has been as a result of someone carrying a gun while doing something else illegal or as a result of an unrelated investigation, and the ATF have NEVER been the primary agency involved in a charge, they always take over the charge after your local officer friendly working the beat has jacked you up for something else.

 

[self preservation]

I have always heard that too. But I would hate to be the first one that gets arrested by the feds just for coming to close to a school.

 

[KBCraig]

That's how I thought. NH doesn't have state laws against.

NH doesn't even have laws against carrying inside the school itself.

Just one more reason I love this state and have made it my new home.

 

[skidmark]

Another person offering free legal opinion -

For states that do not require a discrete "license" to carry a firearm, the law stating such generally serves as your "license" for purposes of complying with the GFSZ law.

But remember that it only applies in your home state. Even if you have, for instance, a Virginia non-resident permit that would not protect you from a GFSZ violation in Virginia.

That, of course, prseumes there was a US Marshal about to charge you with the offense. Nobody yet has been able to find a citation of someone charged with violation of the GFSZ as the primary offense. There are lots of examples of it being used to pile more charges on someone.

stay safe.

 

[Jeff Hayes]

Another person offering free legal opinion -



But remember that it only applies in your home state. Even if you have, for instance, a Virginia non-resident permit that would not protect you from a GFSZ violation in Virginia.

Skidmark I have to disagree with you here, if you have concealed permit from the state you are in you are good, residency has noting to do with it.

(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;

You can find the full text here; http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

 

[eye95]

(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.

What does "is licensed to do so by" mean? Does it specifically mean "has been issued a paper license to do so by"? Or does it mean "is permitted to do so by"? The plain meaning of "licensed" does not necessarily mean that someone has been issued a piece of paper. If someone is ever busted under this law, but has a license from a reciprocal State or is given permission under the law, they should argue that the word "licensed" has many plain language meanings and should be construed against the government in the way that least restricts the behavior of people.

Note: I am not advocating that anyone should put themselves in this situation just to test the law. However, I think the above argument is a winner.


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<o>

 

[MKEgal]

If anyone's interested in reading the applicable US Code...:
http://www.law.cornell.edu/uscode/text/18/922

I have NEVER heard of the ATF just laying in wait for some oik to come along lugging their gun just one inch inside the line

Not ATF, but local police have done that.
A guy in (IIRC) Green Bay, WI was riding his bike through town, he thought he had carefully mapped where he was allowed to ride & was outside the magic unmarked 1000' line, the police disagreed, arrested him, charged him.

They measured from the school to where he was riding three times, coming up with different distances each time, sometimes coming up over 1000', sometimes coming up less than 1000'.

The judge finally dismissed the charges, saying something to the effect of "if even the police, with measuring equipment, can't figure out where the line is, nobody else can be expected to".

Granted, all this happened before our cc law.

 

[mrjam2jab]

Another person offering free legal opinion -



But remember that it only applies in your home state. Even if you have, for instance, a Virginia non-resident permit that would not protect you from a GFSZ violation in Virginia.

Skidmark I have to disagree with you here, if you have concealed permit from the state you are in you are good, residency has noting to do with it.

(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;

You can find the full text here; http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990

Agreed. Residency has no part of it.

 

[EMNofSeattle]

If anyone's interested in reading the applicable US Code...:
http://www.law.cornell.edu/uscode/text/18/922


Not ATF, but local police have done that.
A guy in (IIRC) Green Bay, WI was riding his bike through town, he thought he had carefully mapped where he was allowed to ride & was outside the magic unmarked 1000' line, the police disagreed, arrested him, charged him.

They measured from the school to where he was riding three times, coming up with different distances each time, sometimes coming up over 1000', sometimes coming up less than 1000'.

The judge finally dismissed the charges, saying something to the effect of "if even the police, with measuring equipment, can't figure out where the line is, nobody else can be expected to".

Granted, all this happened before our cc law.

Well good on the judge, that is the correct ruling

However IIRC doesn't Wisconsin have a state level GFSZA (948.605) with that magic 1000 foot zone? I'm certain local police were not enforcing the federal law for the Feds, they were trying to jack people up with a ticket for the state violation, I would assume

 

[self preservation]

Well good on the judge, that is the correct ruling

However IIRC doesn't Wisconsin have a state level GFSZA (948.605) with that magic 1000 foot zone? I'm certain local police were not enforcing the federal law for the Feds, they were trying to jack people up with a ticket for the state violation, I would assume

I wonder that too. I don't doubt one bit what MKE is telling us, but it did strike me odd that local LEO was enforcing a federal law.

 

[Jeff Hayes]

What does "is licensed to do so by" mean? Does it specifically mean "has been issued a paper license to do so by"? Or does it mean "is permitted to do so by"? The plain meaning of "licensed" does not necessarily mean that someone has been issued a piece of paper. If someone is ever busted under this law, but has a license from a reciprocal State or is given permission under the law, they should argue that the word "licensed" has many plain language meanings and should be construed against the government in the way that least restricts the behavior of people.

Note: I am not advocating that anyone should put themselves in this situation just to test the law. However, I think the above argument is a winner.


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<o>

Eye Interesting take, I would agree with you except for the last sentence says

"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;"

 

[EMNofSeattle]

Eye Interesting take, I would agree with you except for the last sentence says

"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;"

Well in 2000 the government attempted to argue that an Alabama permit was not valid for GFSZA because Alabama law didn't require a sheriff to conduct a background check, that argument was dismissed by the 10th circuit which wrote in the majority opinion of United States v. Tait

The government first argues that Alabama licenses never qualify for the exception in §
922(q)(2)(B)(ii) because Alabama does not require its licensing agents to conduct background checks on
firearms license applicants. The § 922(q)(2)(B)(ii) exception only applies if "... the law of the State ...
requires that ... [the sheriff] verify that the individual is qualified under law to receive the license." 18 U.S.C.
§ 922(q)(2)(B)(ii). By its basic terms, the statute merely requires that the Alabama sheriff ensured that Tait
was qualified under Alabama law to receive the license. While the Alabama law is extremely lenient, it is
nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine
whether the federal statute's exception applies. See Caron v. United States, 524 U.S. 308, 118 S.Ct. at 2011-
12, 141 L.Ed.2d 303.
6
Alabama is free to set forth its own licensing requirements, and Congress chose to
defer to those licensing requirements when it established "qualified under law" as its criterion for the
exception to the Gun-Free School Zone Act. Therefore the government's first argument with respect to §
922(q)(2)(B)(ii) is rejected.
7 Emphasis Mine

I know it's not the same as a Reciprocity or a constitutional carry state, but it does show that courts may be open to consider the argument.

 

[Jeff Hayes]

Well in 2000 the government attempted to argue that an Alabama permit was not valid for GFSZA because Alabama law didn't require a sheriff to conduct a background check, that argument was dismissed by the 10th circuit which wrote in the majority opinion of United States v. Tait



I know it's not the same as a Reciprocity or a constitutional carry state, but it does show that courts may be open to consider the argument.

This is exactly why we have these discussions good point and cite. That would make Eye's argument more valid than I first thought.

 

[eye95]

This is exactly why we have these discussions good point and cite. That would make Eye's argument more valid than I first thought.

The only way we'll be sure one way or the other is for a test case to wend its way through the courts.

Volunteers?

j/k

 

[Jeff Hayes]

The only way we'll be sure one way or the other is for a test case to wend its way through the courts.

Volunteers?

j/k

Not me, LOL

 

[1245A Defender]

Well,,,

parts of the gfsza that have been quoted, are from the 1990 version.
that has been struck down and replaced with some new qualifiers in the wording.
I think one of the changes is that the state carry permit require a background check!

eta, nope I was wrong,,, no BG check,, see,
http://www.gunlaws.com/Gun_Free_School_Zones_Act.pdf


I tried,, but cant get my google foo to work in any meaningful way,,, really, I did try!!!

 

[EMNofSeattle]

parts of the gfsza that have been quoted, are from the 1990 version.
that has been struck down and replaced with some new qualifiers in the wording.
I think one of the changes is that the state carry permit require a background check!

I tried,, but cant get my google foo to work in any meaningful way,,, really, I did try!!!

Bob, the court case I quoted was decided in 2000 for an arrest and prosecution that occured in 1999, well after the gun control act was re-passed, the 1990 version was struck, and it was repassed in 1995, the only change they made was to add a "juristictional hook" by now mandating the firearm "move in interstate commerce" which of course the feds will claim is any gun...

It's bad law, but the cite I gave is valid.