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Fjold
05-06-2010, 12:54 PM
As a CCW holder I am exempt by the State and allowed to carry a loaded gun on school property and in a school zone.

The Federal gun free school zone acts makes it illegal to carry an unloaded or unlocked firearm within 1,000 feet of a school with a number of exceptions including:

(B) Subparagraph (A) shall does 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 s 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;

My question is:

Does this exemption apply to all the guns that I am carrying in my vehicle, etc. or just the guns listed on my CCW permit?

loather
05-06-2010, 1:53 PM
That's a really good question. My gut feeling is that it will only exempt you for the listed guns, but it'd definitely be worthwhile to ask this question to a competent attorney.

EOD3
05-06-2010, 2:11 PM
That's a really good question. My gut feeling is that it will only exempt you for the listed guns, but it'd definitely be worthwhile to ask this question to a competent attorney.

How fortunate that we have several of those very things on this board. :D

Toolbox X
05-06-2010, 3:16 PM
I want to know the answer to this as well.

bigtoe416
05-06-2010, 4:18 PM
(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 s 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;

My question is:

Does this exemption apply to all the guns that I am carrying in my vehicle, etc. or just the guns listed on my CCW permit?

I don't have a CCW, but I hear that CCWs have firearms listed on the license which the licensee can carry. This means that if you're carrying the listed firearms concealed, then those don't count. The other firearms you are not licensed to carry, and therefore would count.

Having said that, the federal GFSZ law is unconstitutional, and while there have been prosecutions since that law was ruled unconstitutional, I haven't read a ruling where the defendant made the argument that the law is unconstitutional and has been ruled as such. Therefore, a lot of people ignore the federal GFSZ law because it is (mostly) unenforceable.

GrizzlyGuy
05-06-2010, 4:59 PM
Having said that, the federal GFSZ law is unconstitutional, and while there have been prosecutions since that law was ruled unconstitutional, I haven't read a ruling where the defendant made the argument that the law is unconstitutional and has been ruled as such. Therefore, a lot of people ignore the federal GFSZ law because it is (mostly) unenforceable.

See this case (http://www.ca9.uscourts.gov/datastore/opinions/2005/08/10/0430152.pdf), the defendant made that argument and the district court and our 9th circuit court both disagreed, finding that the federal GFSZ law is constitutional:

Dorsey also moved to dismiss the charge under the Gun-Free
School Zones Act, 18 U.S.C. § 922(q), arguing that the statute
exceeds the scope of Congress’s Commerce Clause power.
The district court denied Dorsey’s motion to dismiss...

We agree with the Eighth Circuit’s decision in Danks,
and follow our own precedent regarding § 922(g), in similarly
resolving this issue. Dorsey’s motion to dismiss Count Three
of the indictment on the ground that 18 U.S.C. § 922(q) is not
a valid exercise of congressional power under the Commerce
Clause was properly denied.

Credit for that info goes to kf6tac in his post here (http://www.calguns.net/calgunforum/showpost.php?p=4243653&postcount=12).

hoffmang
05-06-2010, 5:29 PM
You are:

1. Licensed by the state under 12050.

2. Though your license to carry may have specific firearms listed, it appears to me that your 12050 license exempts you from the Federal GFSZ for all firearms carried concealed in your car. Note that 12050 licenses exempt you from CA PC 626.9.

-Gene

bigtoe416
05-06-2010, 11:54 PM
See this case (http://www.ca9.uscourts.gov/datastore/opinions/2005/08/10/0430152.pdf), the defendant made that argument and the district court and our 9th circuit court both disagreed, finding that the federal GFSZ law is constitutional

Thanks for the link. It's important to note that this case does involve interstate commerce (drug trafficking) as well as a firearm. I can see how the court could rule this way given the circumstances of the case. I cannot, however, see how a person with an unlocked firearm in his car on the way to a shooting range would qualify as being involved in interstate commerce.

GrizzlyGuy
05-07-2010, 7:48 AM
Thanks for the link. It's important to note that this case does involve interstate commerce (drug trafficking) as well as a firearm. I can see how the court could rule this way given the circumstances of the case. I cannot, however, see how a person with an unlocked firearm in his car on the way to a shooting range would qualify as being involved in interstate commerce.

That's true, but unfortunately the law (http://wiki.calgunsfoundation.org/index.php/Gun_Free_School_Zones#Law) says this:

It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce...

The government need only prove that:

the 'firearm has moved in interstate or foreign commerce'
-- OR --
the 'firearm affects interstate or foreign commerce'

The former would be pretty easy to prove since few firearms are manufactured in CA from parts that were 100% manufactured in CA.

Montana and the other states that are trying to nullify federal gun laws based on 10A grounds are relying on that wholly-manufactured-within-state concept. BATFE has stated that they don't accept that argument. So unless SCOTUS says something that changes the game, I think we're stuck with the federal GFSZ law. :(

Fjold
05-07-2010, 8:14 AM
You are:

1. Licensed by the state under 12050.

2. Though your license to carry may have specific firearms listed, it appears to me that your 12050 license exempts you from the Federal GFSZ for all firearms carried concealed in your car. Note that 12050 licenses exempt you from CA PC 626.9.

-Gene

Gene, that's the way that I read it also. Interesting.

bigtoe416
05-07-2010, 11:31 AM
That's true, but unfortunately the law (http://wiki.calgunsfoundation.org/index.php/Gun_Free_School_Zones#Law) says this:

It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce...

The government need only prove that:

the 'firearm has moved in interstate or foreign commerce'
-- OR --
the 'firearm affects interstate or foreign commerce'

The law certainly says what you have quoted, but fortunately case law from Lopez has a significant controlling factor over that law:

Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, §922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that §922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.

The jurisdictional issue is what congress sought to resolve when they amended the original GFSZ law. So while the law remains in effect today, and is clearly a law which can be prosecuted successfully, the prosecution must show that real interstate commerce was involved. In the first bolded section above, the court clearly states that the mere possession of a firearm is in no sense economic activity.

My understanding of all this means that if you are going to transport narcotics or other contraband across state lines and while doing so you possess a firearm in a school zone, then you are prosecutable for violating the GFSZ law. If you're going to the range to go target practice, you are not in violation of the law.

GrizzlyGuy
05-07-2010, 11:52 AM
The jurisdictional issue is what congress sought to resolve when they amended the original GFSZ law. So while the law remains in effect today, and is clearly a law which can be prosecuted successfully, the prosecution must show that real interstate commerce was involved. In the first bolded section above, the court clearly states that the mere possession of a firearm is in no sense economic activity.

My understanding of all this means that if you are going to transport narcotics or other contraband across state lines and while doing so you possess a firearm in a school zone, then you are prosecutable for violating the GFSZ law. If you're going to the range to go target practice, you are not in violation of the law.

Hopefully you're right and the district court sees it that way if anyone gets charged. I wouldn't want to be the test case but would happily donate to the legal defense fund of anyone that wants to give it a whirl.

Wolverine
05-07-2010, 5:21 PM
It seems to me that post Heller, the *federal* gun free school zone act should now be open to challenge on 2nd amendment grounds (rather than commerce clause grounds as in Dorsey).

Whoa Nellie
05-07-2010, 6:36 PM
Doesnt it seem odd that the original law was struck down by the Supreme Court on the basis that having a gun on school grounds doesnt affect interstate or foreign commerce so the congress re-writes the bill and specifically includes a clause about interstate and foreign commerce ?

Since the court ruled there is essentially no connection between gun posession on school grounds and interstate commerce, then why did the congress re-write the bill to specfically include that clause ?

In my opinion congress did that so they could release sound bites and press clippings to the media about how they are "making kids safe at school" while knowing all along that it was STILL unconstitutional and they wouldnt be conviction people with it.

Apparently there were some convictions in Puerto Rico and Virgin Islands which is VERY strange to me. We have 300 million people in America, 65,000 schools and 400 million guns and the only convictions under the new law are in Puerto Rico and Virgin Islands ??

GrizzlyGuy
05-07-2010, 6:44 PM
Doesnt it seem odd that the original law was struck down by the Supreme Court on the basis that having a gun on school grounds doesnt affect interstate or foreign commerce so the congress re-writes the bill and specifically includes a clause about interstate and foreign commerce ?

Since the court ruled there is essentially no connection between gun posession on school grounds and interstate commerce, then why did the congress re-write the bill to specfically include that clause ?

Exactly, that doesn't make any sense to me. It's almost as if:

1) The Congress-critters decided that SCOTUS must be wrong.
2) The Congress-critters didn't read the bill they voted on.
3) The Congress-critters ignored their oath to the Constitution.

Nah, what are the odds of any of those things happening... :rolleyes: ;)

snobord99
05-07-2010, 7:07 PM
You are:

1. Licensed by the state under 12050.

2. Though your license to carry may have specific firearms listed, it appears to me that your 12050 license exempts you from the Federal GFSZ for all firearms carried concealed in your car. Note that 12050 licenses exempt you from CA PC 626.9.

-Gene

I think that would have to be a broad reading of the federal GFSZ. The way I read the federal law is that it only excludes the guns listed on your CCW. I read "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" to mean what's excluded is what the state allows (licensed) you to do. While your license is through 12050, your CCW doesn't allow for carrying anything but those specifically listed. In other words, while the ability for you to get your license comes from 12050, you're only "licensed" to carry those listed on your CCW.

By analogy (I know people here hate the driving analogy, but I'm using it anyways), your driver's license is issued under the authority of Vehicle Code 12811 but if your license is a class C, you're only allowed to drive a class C vehicle. It's not a license for you to drive a non-class C vehicle.

I've not done any research into this at all, but instinctively I would guess the courts won't give such a broad reading to the federal code.

hoffmang
05-09-2010, 9:06 PM
While your license is through 12050, your CCW doesn't allow for carrying anything but those specifically listed. In other words, while the ability for you to get your license comes from 12050, you're only "licensed" to carry those listed on your CCW.

That's where I disagree. Granted this is still debatable, but...

It's clear that you can ask for an amendment to add or delete a specific firearm. However, I don't see in the Penal Code (and I don't think there are any official regulations) that say that the license is required to be restricted to certain firearms. Now, it may be possible that the restrictions apply based on being listed on the license, but recall that the 12050 license exempts you from all state restrictions in a the state GFSZ (loaded, concealed, GFSZ) and isn't based on the firearm on the license.

"[A]nd shall, in addition, contain a description of the weapon or weapons authorized to be carried, giving the name of the manufacturer, the serial number, and the caliber" could be "All, All, All" if some Sheriff chose to issue it that way and I see nothing stopping it being issued that way.

-Gene