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View Full Version : Federal GFSZ Act - Non Resident CCW - What's the deal?


831Shooter
02-20-2012, 10:24 PM
I don't remember this being discussed anytime recently. I also tried a few searches and did not come up with anything. If I missed out on something, please point me in the direction of the thread.

Many of us have taken the time, money and effort to obtain non-resident CCWs, mostly in order to enjoy reciprocity with other states we travel to. According to the Federal GFSZA, those permits are essentially useless when traveling in any state OTHER than the original state that issues the permit.

The Federal law is very clear:

(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 obtains 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;

In many places it is nearly impossible to drive around without being within 1000 feet of a GFSZ. Certainly, in most places you are traveling to as a visitor, you will not know off-hand where every school is located. This effectively puts you at risk of a federal felony charge, a 5 year prison term AND a LIFETIME ban on firearms ownership.

There is NO DOUBT what the Federal law states. The only exception to the law for CCW holders of for those issued IN THE STATE where the gun free school zone is.

The research I have done shows that the convictions that have happened (that I could find) all had some other factors involved. Drugs, felon in possession, etc. I myself did not find a case of a regular law abiding citizen with a non-resident CCW being charged under the Federal GFSZA. This certainly does not mean it has not happened. I just could not find one.

The discussions I have found doing a Google search bring up similar findings. They also mention the fact that it is a federal law. In the case of being stopped for a traffic violation, etc. and having a firearm with a non-resident CCW that is honored by that state, you are very unlikely to be charged, etc.

While these opinions are true as far as I can see, they still don't really give me a warm, fuzzy feeling inside. Even if it has never happened before, the fact remains. If you are carrying with a non-resident CCW in a state OTHER than the one the license was issues, you CAN be prosecuted for a felony which can result in a FIVE year prison term and the permanent loss of your rights to own a firearm.

What say those in the know?

1. Have there been any cases of normal, law abiding citizens being prosecuted?

2. Does the "at a place that the individual knows, or has reasonable cause to believe, is a school zone" have any bearing here as a real defense if prosecuted?

3. Is anything being done to change this. Does HR822 address or affect this at all?

Thanks!
831S

Librarian
02-20-2012, 10:59 PM
Your analysis is correct.

I'm not aware of prosecutions for Federal GFSZ.

If HR 822 were to become law as currently specified, outside of your own state of residence, possession of a non-resident CCW from A state would appear to allow a person the same exemption as residents of that state: (b) The possession or carrying of a concealed handgun in a State under this section shall be subject to the same conditions and limitations, except as to eligibility to possess or carry, imposed by or under Federal or State law or the law of a political subdivision of a State, that apply to the possession or carrying of a concealed handgun by residents of the State or political subdivision who are licensed by the State or political subdivision to do so, or not prohibited by the State from doing so.

Big Ben
02-21-2012, 8:37 AM
Agreed. Your analysis is correct, and it definitely doesn't give me a "warm, fuzzy feeling" either. It is yet another unfortunate result of 60 years of anti-gun legislation.

You mention HR 822, but I'm not holding my breath on that one making it through the Senate and White House unless there is a significant shift in the coming election cycle (and maybe not even then). In my mind, I don't think we are going to see resolution of this issue until we have a "bear" decision from SCOTUS, and then we can really start attacking the numerous restrictions and limitations on our rights to bear outside the home.

In the meantime, I will continue to carry on a non-resident LTC when traveling, doing my best to avoid GFSZ, and relying on what I consider an extremely low likelihood of getting in trouble for carrying in a GFSZ. (I consider it extremely low because (a) I try to avoid them (b) I try to obey the law - both traffic and otherwise (c) if I'm stopped by a LEO, concealed still means concealed and I'm not volunteering information and (d) if I get stopped by a LEO in a GFSZ and he notices that I'm carrying concealed on a non-resident LTC, I believe that there is a pretty low probability that the LEO is going to decide to charge me with a Federal GFSZ charge.) As I said, it doesn't make me feel warm and fuzzy, but it's a decision I'm comfortable with. Others may feel differently, and I respect their feelings if they choose not to carry, too.

Liberty1
02-21-2012, 8:57 AM
HR 218 (18 USC sec 926B aka 'LEOSA') also provides no protection for LE in FED GFSZs. The commerce clause route is the wrong constitutional 'vehicle' IMO since I disagree that mere possession in travel effects commerce, Wickard v Filburn notwithstanding, unless one argues that I would have otherwise bought or rented a firearm in each state I was visiting. :)

Glock22Fan
02-21-2012, 9:13 AM
The question is, does a license have to be formalized and put into writing?

I could argue that by State A recognizing CCW's from State B, they are ipso facto licensing CCW holders from State B to carry in State A, thus satisfying the requirements of the Fed laws. And, as I know of no state that issues CCW's who does not check that the applicant is "verify that the individual is qualified under law to receive the license; "

I have to say though that IANAL, and frequently find that the way they interpret things does not make sense.

CalBear
02-21-2012, 9:28 AM
The question is, does a license have to be formalized and put into writing?

I could argue that by State A recognizing CCW's from State B, they are ipso facto licensing CCW holders from State B to carry in State A, thus satisfying the requirements of the Fed laws. And, as I know of no state that issues CCW's who does not check that the applicant is "verify that the individual is qualified under law to receive the license; "

I have to say though that IANAL, and frequently find that yjr way they interprest things does not make sense.
License
1
a : permission to act
b : freedom of action

2
a : a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful

eg: John, a Arizona concealed carry permit holder, is licensed by the state of Nevada to carry concealed weapons, via a reciprocity agreement.

Verify
1
: to confirm or substantiate in law by oath
2
: to establish the truth, accuracy, or reality of <verify the claim>

eg: The attorney general of the state of Nevada verified the compatibility of Arizona concealed weapon law before licensing Arizona concealed weapon permit holders.

Keep in mind that the ATF is not especially friendly toward gun owners right now. Their last letter on this subject stated that one needs a physical permit from the state in which they are carrying to be exempt under the fGFSZ law.

Liberty1
02-21-2012, 9:34 AM
In the case of being stopped for a traffic violation, etc. and having a firearm with a non-resident CCW that is honored by that state, you are very unlikely to be charged, etc.



See the case law section for the treatment NYC, and their ilk, will give those claiming exemption under federal law:

http://en.wikipedia.org/wiki/Law_Enforcement_Officers_Safety_Act LINK CORRECTED

I really hope for a national court found unlicensed mode of carry under the 2A/14A so any citizen can fully exercise their right to arms AND their right to travel at the same time. Sadly I'm not optimistic that a modern court will recognize what we had throught the 19th century.

Liberty1
02-21-2012, 9:38 AM
What's worse is that all states with so called "constitutional carry" are totally screwed by the Fed GFSZ.

As to GFSZ yes, but it is interesting that all Vermonters are taken care of in HR 822 as to out of state CC without a home state issued license.

Glock22Fan
02-21-2012, 9:47 AM
License
1
a : permission to act
b : freedom of action

2
a : a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful

eg: John, a Arizona concealed carry permit holder, is licensed by the state of Nevada to carry concealed weapons, via a reciprocity agreement.

Verify
1
: to confirm or substantiate in law by oath
2
: to establish the truth, accuracy, or reality of <verify the claim>

eg: The attorney general of the state of Nevada verified the compatibility of Arizona concealed weapon law before licensing Arizona concealed weapon permit holders.

Keep in mind that the ATF is not especially friendly toward gun owners right now. Their last letter on this subject stated that one needs a physical permit from the state in which they are carrying to be exempt under the fGFSZ law.

Exactly. And a judge might, or might not, rule the ATF way. Personally, in states where my CCW(s) is/are good, I don't worry about GFSZ's one little bit. To start with, concealed is concealed. If the SHTF, I'll have more important things to worry about.

Big Ben
02-21-2012, 10:12 AM
And as for you guys saying "they don't enforce this so I'll do what I want", well you might as well start building a suppressor in your garage and convert your AR's to full auto, since those are the same category of crime as a GFSZ violation (federal felony).

I don't think anyone in this thread is saying "They don't enforce this so I'll do what I want." In fact, the entire point of this thread is to address and consider the challenges and pitfalls related to the GFSZ of carrying in a state with a non-resident LTC.

In my post (the only post above that could reasonably be construed to be saying "I'll do what I want"), my point is that when carrying in another state on a non-resident LTC, I work hard to avoid GFSZ first and foremost. Between my efforts to avoid the school zones and the other factors I listed above, I am comfortable carrying on a non-resident LTC.

However, I acknowledge that despite my best efforts, I could (and likely have) passed through a GFSZ at some point. If I ended up in a worst case scenario where I was stopped in a school zone, discovered to be carrying on a non-resident LTC, and charged with a federal GFSZ violation, I would then be forced to rely on the actual text of the law, which states:

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.

As an out-of-town traveler, and as someone who does try to avoid the GFSZ, I think I would be able to demonstrate that I did not know or have reasonable cause to believe that I was in a GFSZ.

However, I fully acknowledge the risk that I could be charged and convicted of a federal felony when I travel out of state on a non-resident LTC. I also acknowledge that I could be put into a situation when traveling where my life is at risk and I need a firearm to defend myself. Personally, I have analyzed the two risks and made my decision on how best to mitigate both risks. Someone else may go through the analysis and arrive at a different decision for them, and that's fine.

However, to indicate that someone is "just doing what they want" and correlate it to other federal firearms violations is disingenuous and detracts from the overall purpose of this thread.

831Shooter
02-21-2012, 3:08 PM
Thanks for the replies..

I agree with most of the general sentiments posted so far. It is a risk I am willing to take as well. I think the whole GFSZA is ridiculous and needs to be squashed, but as the very least the CCW exception being ONLY for those where the state was issued can and will be challenged.


I could argue that by State A recognizing CCW's from State B, they are ipso facto licensing CCW holders from State B to carry in State A, thus satisfying the requirements of the Fed laws. And, as I know of no state that issues CCW's who does not check that the applicant is "verify that the individual is qualified under law to receive the license; "

This ^.. I agree would be a good defense to a charge. But I certainly do not wish to be the test case for that.. :)


As an out-of-town traveler, and as someone who does try to avoid the GFSZ, I think I would be able to demonstrate that I did not know or have reasonable cause to believe that I was in a GFSZ.

This as well would be a valid defense, but as stated above, I would not want to be the test case.

It is highly doubtful in my opinion that a local (state, county, city) LEO in a state that grants reciprocity to the license you have is going to even be thinking about the Federal GFSZA for a law abiding citizen with a valid CCW.

Either way, this clause of the Fed GFSZA is troubling to say the least. I was really wondering if anyone of the gun rights orgs is challenging this in any way. I'm not up to snuff 100% on how and when these things can/are challenged. I am guessing that it is hard to challenge a law like this until you actually have a case of someone being charged..

831S

kcbrown
02-22-2012, 2:06 PM
Remember, the Supreme Court appears to be rejecting all 2A-related criminal cases. If you get nailed for a GFSZ violation, that is the kind of case yours will be and your case will almost certainly be denied cert by the Supreme Court, and that means you'll be screwed.

That means only a civil challenge to the GFSZ can have any positive effect, and that is something that Gene has said is essentially impossible to achieve (though I'm having a lot of trouble finding the original message in which he said that).

That means the GFSZ is going to continue to make real RKBA impossible in urban areas, most especially since anti-gun sheriffs are certainly going to issue licenses that include GFSZ restrictions on them, at least to anyone who isn't "special".

lhecker51
02-22-2012, 2:43 PM
The question is, does a license have to be formalized and put into writing?

I could argue that by State A recognizing CCW's from State B, they are ipso facto licensing CCW holders from State B to carry in State A, thus satisfying the requirements of the Fed laws. And, as I know of no state that issues CCW's who does not check that the applicant is "verify that the individual is qualified under law to receive the license; "

I have to say though that IANAL, and frequently find that the way they interpret things does not make sense.

Bingo! You are correct. The federal law cited did not say anything about the license being issued by the state.

dustoff31
02-22-2012, 3:10 PM
What's worse is that all states with so called "constitutional carry" are totally screwed by the Fed GFSZ.

No necessarily. This bill is currently in the AZ House. I would suspect that the other CC states are, or soon will be doing the same.

OVERVIEW
HB 2719 states that a person who lawfully owns and possesses a firearm is considered to be licensed and verified to possess a firearm immediately outside the grounds of a school.

PROVISIONS
· Allows a person to possess a firearm immediately outside the grounds of a school if the firearm is lawfully owned or possessed pursuant to the United States Constitution and laws of Arizona.

831Shooter
02-22-2012, 8:20 PM
Bingo! You are correct. The federal law cited did not say anything about the license being issued by the state.

I'm not sure if you have looked at the actual law or not, but the Federal law DOES state specifically that the license MUST be issued by the state. The section is quoted in my OP:

(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 obtains 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;

scarville
02-22-2012, 8:35 PM
No necessarily. This bill is currently in the AZ House. I would suspect that the other CC states are, or soon will be doing the same.
That's a state law. According to the courts, Federal law trumps.

dustoff31
02-22-2012, 8:44 PM
That's a state law. According to the courts, Federal law trumps.

Yes. It's a state law that says those who CC are considered by the state to be "licensed" as is required by the federal law.

locosway
02-23-2012, 3:51 AM
Here is a letter from the BATFE regarding the GFSZ and non-resident CCW's.

http://dl.dropbox.com/u/10998741/Batfe2002letter_gfsza1995_ccw.pdf

nicki
02-23-2012, 3:15 PM
The SCOTUS invalidated the fed GFZ since it had no interstate commerce in the Lopez case.

Congress just tweeked the law and passed it again.

I expect lawsuits against the fed gfz to be filed in all circuits so that we can have split circuits.:43:

I expect the SCOTUS will hear this case because they probably don't like Congress making end runs around their rulings.;)

Nicki

stix213
02-23-2012, 3:41 PM
If SCOTUS would better define "sensitive places," which they may in a future carry case, the ammo to kill the GFSZ laws could materialize.

Crom
02-24-2012, 2:42 PM
FYI

If anyone was wondering, according to Wikipedia (http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act_of_1990) there are a few documented Federal GFSZ convictions post-Lopez.



United States v Danks (Eighth Circuit 1999) (http://en.wikipedia.org/wiki/File:United_States_vs_Danks_gfsza95.pdf)
United States v Tait (Eleventh Circuit 2000) (http://en.wikipedia.org/wiki/File:United_States_vs_Tait_gfsza95.pdf)
United States v Haywood (Third Circuit 2002) (http://en.wikipedia.org/wiki/File:United_States_vs_Haywood_gfsza95.pdf)
United States v Smith (Sixth Circuit 2005) (http://en.wikipedia.org/wiki/File:United_States_vs_Smith_gfsza95.pdf)
United States v Dorsey (Ninth Circuit 2005) (http://en.wikipedia.org/wiki/File:United_States_vs_Dorsey_gfsza95.pdf)
United States v Nieves-Castaņo (First Circuit 2007) (http://en.wikipedia.org/wiki/File:United_States_vs_Nieves-Castano_gfsza95.pdf)
United States v Weekes (Third Circuit 2007) (http://en.wikipedia.org/wiki/File:United_States_vs_Weekes_gfsza95.pdf)
United States v Benally (Tenth Circuit 2007) (http://en.wikipedia.org/wiki/File:United_States_v_Benally_gfsza95.pdf)
United States v Cruz-Rodriguez (First Circuit 2008) (http://en.wikipedia.org/wiki/File:United_States_vs_Cruz_Rodrigues_gfsza95.pdf)

The two cases I reviewed Dorsey and Cruz-Rodriguez were complete dirt bags and the GFSZ charges were added to already more serious crimes.

dustoff31
02-25-2012, 2:00 PM
The two cases I reviewed Dorsey and Cruz-Rodriguez were complete dirt bags and the GFSZ charges were added to already more serious crimes.

I believe that is true in all but one of these cases.

socal2310
02-25-2012, 7:40 PM
I believe that is true in all but one of these cases.

United States v Danks (Eighth Circuit 1999) Shot at a parked car
United States v Tait (Eleventh Circuit 2000) Felon in possession of a firearm.
United States v Haywood (Third Circuit 2002) Robbery
United States v Smith (Sixth Circuit 2005) Man pointing a gun at a synagogue
United States v Dorsey (Ninth Circuit 2005) Possession with intent to sell cocaine
United States v Nieves-Castaņo (First Circuit 2007) Puerto Rico, druggie boyfriend
United States v Weekes (Third Circuit 2007) use of a firearm in commission of crime
United States v Benally (Tenth Circuit 2007) idiot drunk kids on school grounds
United States v Cruz-Rodriguez (First Circuit 2008) Puerto Rico, drug distribution ring

Which one wasn't a dirtbag? I'm about as libertarian as anyone could wish regarding drugs, but even I know that you don't find a lot of nice people on the supply side of black markets.

Ryan