• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

July 25, 2013 ATF Letter Regarding Permit Holders and Fed GFSZA

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
It says that the State's law has to require verification of the individuals qualification for the license. This is accomplished in Ohio by only reciprocating with States that require background checks.

It is still the state that issued your permit that did the individual verification. Ohio may recognize a class of persons (permit holders from reciprocating states that perform background checks), but there is still no individual verification by Ohio law enforcement within this class (unless it is an Ohio permit we are talking about). Although I agree that is the argument your defense attorney should be making when you are facing felony charges.
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
The act of the police verifying that a carrier has a reciprocated license verifies the qualification. Done.


Sent from my iPad using Tapatalk.

<o>
 

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
The act of the police verifying that a carrier has a reciprocated license verifies the qualification. Done.

<o>

If the Ohio law required that before carrying a gun in Ohio with an out-of-state permit, you had to go to a police station in Ohio, and have your out of state permit verified, then I would agree with you. That isn't the way it works though. Ohio police do not verify an individual carrier's out-of-state permit before they "license" them to carry a gun in Ohio. The ATF position is clear. You can be arrested and charged with a felony. Even if you somehow managed to beat the charge, you would be bankrupt, unless you have A LOT more money than most us.
 
Last edited:

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Before anyone could be charged under the DFSZ law, a cop is going to ask for the license. Again, now the qualification has been verified.


Sent from my iPad using Tapatalk.

<o>
 

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
Before anyone could be charged under the DFSZ law, a cop is going to ask for the license. Again, now the qualification has been verified.


<o>

Ohio law requires you to inform police during a stop. It does not require that Ohio police verify the reciprocal "license" BEFORE it is issued, as the federal law requires for you to be exempt. Now you are arguing that an out-of-state permit holder is not "licensed" or "verified" in Ohio until AFTER they get pulled over and their out-of-state license checked. Under this logic, you would definitely be guilty of the felony for having the gun in the school zone before the officer looked at your license. You can't get caught driving a car without a license and then go to court and say, "I'm not guilty because I got a driver's license the day after I got caught driving without one."
 
Last edited:

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
*sigh* One more time. The word "issued" is not there.


Sent from my iPad using Tapatalk.

<o>

I agree the word "issued" is not in the statute. It does not change the fact that Ohio does not do individual verification of out-of-state permit holders before they are "licensed" to carry a gun by the state of Ohio.

Let me ask you this, there are several states that blindly recognize any permit issued by any other state, regardless of the other state's permitting requirements. Do you concede that you would not be exempt from Fed GFSZA if you traveled to one of these states with your Ohio license?
 
Last edited:

BrianB

Regular Member
Joined
Apr 27, 2011
Messages
223
Location
Florida
Ohio law requires you to inform police during a stop. It does not require that Ohio police verify the reciprocal "license" BEFORE it is issued, as the federal law requires for you to be exempt. Now you are arguing that an out-of-state permit holder is not "licensed" or "verified" in Ohio until AFTER they get pulled over and their out-of-state license checked. Under this logic, you would definitely be guilty of the felony for having the gun in the school zone before the officer looked at your license. You can't get caught driving a car without a license and then go to court and say, "I'm not guilty because I got a driver's license the day after I got caught driving without one."

If you were carrying on an out-of-state concealed carry permit that was valid in the state, but was not valid for GFSZ purposes, then in my opinion you would not be required by law to notify the police you were carrying during the stop in that instance. Doing so would violate your right to freedom from self-incrimination (assuming you knew you were in a GFSZ and your permit would not be recognized by the feds as an exemption).

This is similar to the fact that a convicted felon cannot be charged with failure to register his firearms if he lives in an area where such registration is required. Only lawful possessors can be required to register their firearms. Since felons may not possess firearms, requiring them to register them violates their 5th amendment rights (so the US Supreme Court has held).
 

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
If you were carrying on an out-of-state concealed carry permit that was valid in the state, but was not valid for GFSZ purposes, then in my opinion you would not be required by law to notify the police you were carrying during the stop in that instance. Doing so would violate your right to freedom from self-incrimination...

I agree with you. This would be a very interesting court case if someone were charged with failure to notify, but you'd basically have to convince the state court that you were breaking a law, without admitting to what law you were breaking.
 
Last edited:

BrianB

Regular Member
Joined
Apr 27, 2011
Messages
223
Location
Florida
I agree with you. This would be a very interesting court case if someone were charged with failure to notify, but you'd basically have to convince the state court that you were breaking a law, without admitting to what law you were breaking.

If the final analysis is that you were arrested and having to justify not disclosing, then you're probably screwed at that point because you'd have to admit to knowing you were violating the GFSZ (a felony) to try to beat the failure to disclose (which I'd guess is a misdemeanor - but I don't know that). Admitting to a federal felony to beat a state misdemeanor would be stupid. But, as to conducting your affairs at the time of the stop, if the gun were not discovered, and you didn't disclose (pursuant to your 5th amendment rights) and you get your citation for speeding (or whatever) and are sent on your way, then all is right with the world.

In fact, given that one can possibly never know when they might be in a GFSZ, especially when out of state, one might take the position of never disclosing, even when the laws of that state so-require. You don't have to know you're committing a crime to plead the 5th. The fact that disclosing might incriminate you is sufficient. Not everyone who pleads the 5th has broken a law.

It's all ugly no matter how you slice it. Hopefully someday a "good defendant" will get charged with violating the GFSZ under this "has an out-of-state CCW" fact pattern and we'll see the thing go down in flames. Since carrying a firearm is a fundamental constitutional right I think Congress is going to have to show how this law furthers whatever social purpose they argue it furthers, in the least restrictive means possible. There is no arguable basis for permitting a local CCW licensee to travel within 1000 feet of a school and not permit an out-of-state CCW carrying under reciprocity to do so.
 

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
In the Heller ruling, the US Supreme Court basically said the 2nd amendment doesn't apply at schools. So they would presumably uphold Fed GFSZA on school property. The question is whether they would also uphold the 1000 ft radius.
 
Last edited:

BrianB

Regular Member
Joined
Apr 27, 2011
Messages
223
Location
Florida
In the Heller ruling, the US Supreme Court basically said the 2nd amendment doesn't apply at schools. So they would presumably uphold Fed GFSZA on school property. The question is whether they would also uphold the 1000 ft radius.

With the current composition of the court I'd be surprised if they would be willing to protect beyond the boundary of the school grounds. I also think that the current court would say there is no difference between someone with a permit issued by the state where the school resides and someone lawfully carrying with an out-of-state permit that state has chosen to honor.
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Ohio law requires you to inform police during a stop. It does not require that Ohio police verify the reciprocal "license" BEFORE it is issued, as the federal law requires for you to be exempt. Now you are arguing that an out-of-state permit holder is not "licensed" or "verified" in Ohio until AFTER they get pulled over and their out-of-state license checked. Under this logic, you would definitely be guilty of the felony for having the gun in the school zone before the officer looked at your license. You can't get caught driving a car without a license and then go to court and say, "I'm not guilty because I got a driver's license the day after I got caught driving without one."

Let's try pointing this out in a different way. Suppose the law read (which I am contending that it does in effect) this way:

(ii) if the individual possessing the firearm is allowed 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 is given such permission, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to be given permission;

The attorney general, the top law enforcement authority of the State (in Ohio) makes the determination which States get reciprocity. Under the law, he must verify that all folks getting a license from a reciprocal State are required by law to be background checked. Therefore, the top "law enforcement authorit[y] of the State or political subdivision [has verified] that [all individuals are] qualified under law to be given permission."

Here is yet another angle on it: By reciprocating, States, like Ohio, are attempting to give full faith and credit to the acts of another State for remarkably similar licensing. (Not giving such full faith and credit for essentially different licensing is quite understandable.) Can the federal government constitutionally pass a provision in the law that prohibits that granting of that full faith and credit? If the law is to be read as you insist it should be, then the provision is, IMO, unconstitutional. However, if the provision can be read in a constitutional way, as I am reading it, then the courts would require it be read that way.
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
In the Heller ruling, the US Supreme Court basically said the 2nd amendment doesn't apply at schools. So they would presumably uphold Fed GFSZA on school property. The question is whether they would also uphold the 1000 ft radius.

I don't believe that is quite what they said. IIRC, they gave schools as an example of what might be a "reasonable" limitation on the 2A. (Even though, in reality, any limitation on the 2A violates the 2A.) Meaning that there are several ways the DFSZA could be struck down. One, as happened before, guns in schools is not in the purview of the feds. Two, as you both have already alluded, even though the "reasonable" limitation might (it shouldn't) apply inside a school, it is clearly unreasonable to apply inside my car on I-65 as I whiz by BTW High School in Montgomery. Three, any reading of the law that does not allow a State to use reciprocity to meet the "is licensed" requirement is a violation of the full faith and credit clause. Four, as mentioned above, a person stopped inside a DFSZA with a license from a reciprocating State is forced to choose under which law he is going to incriminate himself, creating an unconstitutional combination of laws.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
5,950
Location
Cincinnati, Ohio, USA
With the current composition of the court I'd be surprised if they would be willing to protect beyond the boundary of the school grounds. I also think that the current court would say there is no difference between someone with a permit issued by the state where the school resides and someone lawfully carrying with an out-of-state permit that state has chosen to honor.
Can someone quote specifically where in 18 USC 922 does it say anything about a concealed carry license? 922(q)(2)(B) Subparagraph (A) does not apply to the possession of a firearm—(ii) if the individual possessing the firearm is licensed to do so........
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Trust me. We all got what you are saying. We understand what you are saying. Considering how licenses are named all manner of things in various States, the courts will likely interpret those words in a way most generous to the defendant, meaning that they will likely give equal weight to a "concealed handgun license (OH)," a "license to carry a concealed handgun (old OH)," a "concealed pistol license (AL; *gasp* what about revolvers?)," among others, and a "license to possess."

No one is arguing the point with you. It just seems that no one thinks the point has any import.

It is, however, another illustration of the silliness of the law. Can a law be unconstitutionally silly?
 

Eagle2009

Regular Member
Joined
Mar 31, 2011
Messages
66
Location
United States
Can someone quote specifically where in 18 USC 922 does it say anything about a concealed carry license? 922(q)(2)(B) Subparagraph (A) does not apply to the possession of a firearm—(ii) if the individual possessing the firearm is licensed to do so........


It doesn't say concealed specifically. Concealed carry licenses apply. Open carry licenses apply. ATF has even agreed previously that in states which require a permit to purchase a handgun, that permit to purchase would satisfy the Fed GFSZA requirement IN THAT STATE.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
5,950
Location
Cincinnati, Ohio, USA
It doesn't say concealed specifically. Concealed carry licenses apply. Open carry licenses apply. ATF has even agreed previously that in states which require a permit to purchase a handgun, that permit to purchase would satisfy the Fed GFSZA requirement IN THAT STATE.
You can believe whatever you wish, but U.S. Supreme Court in Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., 447 U.S. 102 (1980) stated: "We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."

Then again, the U.S. Supreme Court in Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992) stated: “In any event, canons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. See, e. g., United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241-242 (1989); United States v. Goldenberg, 168 U. S. 95, 102-103 (1897); Oneale v. Thornton, 6 Cranch 53, 68 (1810). When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete." Rubin v. United States, 449 U. S. 424, 430 (1981); see also Ron Pair Enterprises, supra, at 241.”

The meaning of the statute is clear. If it ever gets to the Supreme Court we will see if they rule contrary to their past holdings.
 
Top