With the ongoing case in Billings, Montana, where Billings Police collaborated with federal officials to arrest Gabriel (Gabe Metcalf) for exercising his Second Amendment rights, a recap of the history of the federal Gun Free School Zone Acts (GFSZA) is in order. The GFSZA appears to be designed as a direct attack on the exercise of Second Amendment rights and the right to be able to defend against criminal attacks.
The first GFSZA was passed into law in 1989-90. The federal Gun-Free School Zone Act was introduced by some of the most rabid Anti-Second Amendment zealots, Herb Kohl of Wisconsin and Joe Biden of Delaware. Yeah, that Joe Biden.
The effect of the law was to make it impossible to travel with a firearm for defense in nearly all incorporated areas in the United States. Because the GFSZA includes all the area within 1000 feet of the property line of all schools, including private and parochial schools as well as public schools, the extremely large areas outside of school property often overlap and intersect, creating a trap for people who are exercising their Second Amendment rights.
There are exceptions in the act for private property, people licensed by the state, and firearms that are unloaded and locked up. Here are the important portions. From the Gun-Free School Zone Act of 1990, introduced in the Senate by Senator Herbert Kohl (D) WI as S.2070 and Senator Joe Biden (D) DE as part of the Crime Control Act of 1990, S.3266.
SEC. 2. PROHIBITIONS AGAINST POSSESSION OR DISCHARGE OF A FIREARM IN A SCHOOL ZONE. (a) IN GENERAL- Section 922 of title 18, United States Code, is amended by adding at the end the following:
(q)(1)(A) It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. (B) Subparagraph (A) shall 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 obtain 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;
- (iii) which is– `(I) not loaded; and (II) in a locked container, or a locked firearms rack which is in a motor vehicle;
- (iv) by an individual for use in a program approved by a school in the school zone;
- (v) by an individual in accordance with a contract entered into between a school in the school zone and the individual; or an employer of the individual;
In 1994, the Gun Free Schools Act was put in place. It only applies inside of school property. It is completely different from the 1990 law. Do not confuse it with the GFSZA of 1990. It requires federal funding for schools to be pulled if the act is not followed. The 1994 law had terrible effects and was amended in 2001. It needs to be covered in a separate article.
The 1990 GFSZA was quickly challenged in court. From cursory examination, the case, USA v Lopez, was an attempt to use a similar tactic as the Miller case in 1939. It was a case involving an unsympathetic defendant designed to cement the authority seized with the GFSZA into permanence with Federal Court approval. But 1994 was not 1934. The Justices on the Supreme Court, especially Justice Clarence Thomas, were of sterner stuff. The 1990 GFSZA was found to be unconstitutional as a federal overreach of the Commerce Clause, the first such case in 50 years!
In response, President Clinton and Attorney General Janet Reno (of the Waco massacre fame), were able to add a minor wording change to the 1990 GFSZA in an appropriations bill. They claimed Congress could satisfy the Constitutional defects in the law by merely saying they were satisfied. The amendment to the law went into effect in 1997. The GFSZA of 1990 was amended in the Omnibus appropriations package (section 657), with changes requested by the infamous Janet Reno. Here is the change in wording, bold added to show the change:
(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.
To protect Montana residents from the pernicious and cruel effects of the GFSZA, Montana passed the Establishment of Individual Licensure Act, Montana Code Annotated 45-8-360, in 1996. The exception (B) (ii) of the 1990 and amended 1996 GFSZA law exempts individuals who are licensed by the state from the GFSZA. To protect all the people in the state who are not disqualified from possessing firearms, Montana granted them all individual licensure, specifically as required by the GFSZA.
Montana Code Annotated 45-8-360. Establishment of individual licensure.
In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution, a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.
Since 1997, there have been several challenges to the amended 1990 GFSZA in the appellate courts. According to Wikipedia, six appellate courts have upheld the amended GFSZA as constitutional, with one circuit, the First, reversing that decision, while three circuits hold the minor word change does not remedy the constitutional defects in the law. Five decisions upholding the GFSZA were before the Heller decision in 2008; one was only a few months later. A Second Amendment defense was not attempted.
The decision reversing the finding in the First Circuit was after both Heller and the McDonald Decisions, occurring in 2014.
The time appears ripe for a second challenge of the Gun-Free School Zone Act as unconstitutional under both the Commerce Clause and the Second Amendment, and possibly the Tenth Amendment under the Montana code 45-8-360.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
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