Tenth Amendment Center: Federally Infringed: The Gun-Free School Zones Act

From Tenth Amendment Center

...from Tenth Amendment Center

A popular myth in the national gun debate is that Republicans are rabid Second Amendment supporters, while gun grabbers are strictly confined to the Democrat Party. The unpleasant reality is that members of the Grand Old Party and even conservative “gun rights” organizations have supported unconstitutional federal legislation infringing on our right to keep and bear arms.

Although one could trace this unholy collaboration all the way back in 1934 with the National Firearms Act, a more recent example is the Gun-Free School Zones Act of 1990. The 101st Congress had 54 Democrats and 45 Republicans, while the House had 258 Democrats and 177 Republicans. The bill was passed as part of the Crime Control Act of 1990 on a voice vote in the Senate and 313-1 in the House, then signed by Republican President George H.W. Bush.

The law generally prohibits anyone except a law enforcement officer from knowingly having a loaded or unsecured gun within a school zone, defined as an area within 1,000 feet of the school building  – unless on private property. Under the current statute (18 U.S. Code § 921), an individual cannot “knowingly . . . possess[es] 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.”

The language relating to interstate commerce was added after the Supreme Court found the original statute unconstitutional. The additional verbiage had virtually no practical effect since the Court’s definition of interstate commerce includes virtually every firearm ever made.

The prohibition applies whether the school is a private or public institution. The law includes certain exemptions, such as allowing an unloaded firearm on a vehicle gun rack, or for use in an approved school program. The law also allows states and other government agencies to issue licenses to exempt certain people from the policy. This provision had the effect of turning a fundamental right into a privilege bestowed by government.

Enforcement of the law demonstrates just how intrusive it is in practice. In United States v. Nieves-Castaño, the First Circuit Court of Appeals upheld a 2007 conviction in which woman kept a firearm in her public housing project apartment within 1,000 feet of a school. Also, the ATF declared that hunters in the town of Stratham, New Hampshire, would be violating the law if they carried firearms on approved public hunting land in a town forest within 1,000 feet of a local school.

The Gun-Free School Zone Act of 1990 is clearly unconstitutional. “Shall not be infringed” doesn’t include an exception for school zones.

Beyond the constitutional issues, the law doesn’t even deliver as advertised. The legislation was intended to protect schools, but as recent events prove, it has failed to achieve its primary goal. If school shooters are aware of this law, they obviously don’t care, and it is impossible to enforce it against those who violate it unless they do so innocently or unwittingly.

If constitutional, the law might have merit bolstering a case where a criminal has been caught in the act and lives to stand trial, but as a preventative measure meant to discourage school shootings, it is wholly absurd – like most gun control policies. 

TJ Martinell
June 19, 2018 at 10:26AM