Tuesday, September 12, 2023

Gun Free School Zone Act and Montana Individual Licensure Response


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 attack.

The first GFSZA was passed into law in 1989-90. It was introduced by some of the most rabid Anti-Second Amendment zealots, Herb Kohl of Wisconsin and Joe Biden of Delaware. 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 withing 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 which 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 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! USA v Lopez 1995

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.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


TPKeller said...

Any updates on any of the big 2A players taking up the defense of the Montana case yet?

ScienceABC123 said...

2nd Amendment freedoms have been subjected to death by a thousand cuts.

Dean Weingarten said...

to TPKeller:
Nothing official... but, I am getting unofficial indications of at least one prominent 2A attorney showing interest, and a couple of national associations are starting to look at the case.

Activists need to show support for Gabriel to help him keep faith while imprisoned, and to show the 2A organizations this is a case with legs.

Gabe and his mother are real people, in serious trouble. The problem is, can they hold up to the ongoing threat long enough for the cavalry to arrive with support in the form of GOA, SAF, etc.? Direct support, in the form of contributions to help Vivian pay money so Gabriel can make phone calls and have a toothbrush in prison, and pay utility bills for their home. Gabriel is a Montana version of the J6 defendants.