18 U.S.C. 922 (q) (AKA Gun Free School Zone Act)

Discussion in 'National Laws, Bills and Politics' started by ookoshi, Oct 26, 2010.

  1. ookoshi

    ookoshi Moderator

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    Countrygun, this thread is for you.

    Yes, I can cite it: http://codes.lp.findlaw.com/uscode/18/I/44/922

    That would make just about every owner of anything other than a Glock illegal. Ridiculous premise, and not based on any Georgia law.[/quote:1jkedyrd]

    You seem to forget we are bound by both Federal and Georgia law. Federal law requires you to have a license from your state in order to be in a school zone, notwithstanding any state law.

    Also, Glocks are imported weapons from Austria, and are subject to regulation under this act. There are exceptions in the federal law for keeping in your car in transit and other things, but the fact remains you cannot walk into a school with a firearm in Georgia with only a military ID, you MUST also have a GFL or satisfy another one of the exceptions.

    Trying to argue there's no Georgia law regulating school zones for military is pointless, because Federal law does regulate it, regardless of whether Georgia has adopted anything or not.

    In other words, GAGunOwner was right.

    The relevant part of 18 USC 922 (q) reads:

     
  2. CountryGun

    CountryGun New Member

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    You seem to forget we are bound by both Federal and Georgia law. Federal law requires you to have a license from your state in order to be in a school zone, notwithstanding any state law.

    Also, Glocks are imported weapons from Austria, and are subject to regulation under this act. There are exceptions in the federal law for keeping in your car in transit and other things, but the fact remains you cannot walk into a school with a firearm in Georgia with only a military ID, you MUST also have a GFL or satisfy another one of the exceptions.

    Trying to argue there's no Georgia law regulating school zones for military is pointless, because Federal law does regulate it, regardless of whether Georgia has adopted anything or not.

    In other words, GAGunOwner was right.

    The relevant part of 18 USC 922 (q) reads:

    [/quote:eek:30edjzl]

    I've read the law. Since we're thread hopping, and from the other thread:

    State law provides that a citizen, who is otherwise eligible for a GWL but doesn't have one, may drive through a school zone with a loaded firearm in the car. Tell me, which law trumps.

    Georgia has not yet incorporated the GFSZA of 1995. If it has, show me where, and tell me why it did not impact SB-308. Very few states have allowed the GFSZA to impact their Constitution. Some states, and I believe California included, have written verbiage in opposition to the federal law.

    This forum is packed with legal beagles who are either content with me digging a very big hole for myself, or they don't have an answer. I would hope someone would chime in.
     

  3. ookoshi

    ookoshi Moderator

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    Federal law does, through the supremacy clause.

    From the U.S. Constitution:

    State law trumps local/county law through the same concept in state constitutions.

    States don't get to decide whether federal law impacts them or not. They don't have to "adopt" federal laws that get passed for them to be the law of the land in their states. California can legalize marijuana all they want, the DEA will still bust you for growing it.
     
  4. ookoshi

    ookoshi Moderator

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    Also, see Edgar v. Mite Corporation, a Supreme Court case involving the Supremacy Clause.

    To quote the SCOTUS majority opinion:

    "A state statute is void to the extent that it actually conflicts with a valid Federal statute."
     
  5. CountryGun

    CountryGun New Member

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    "ookoshi", I very much appreciate your starting this thread, but I'm waiting on all of the answers. Why did federal law not impact the school laws under SB-308? It would seem there is clear conflict, that a citizen of this state should be able to understand. As you cite federal law, any unlicensed person (even though GWL eligible) is subject to a five year sentence if they transport a loaded firearm through a school zone. That is clearly contrary to Georgia law.

    A military service member has exemptions equal to a LEO. His/her ID alone entitles them, and exempts them from the need for a GWL. The military ID is the recognized equivalent of a GWL in Georgia. It was the AG's opinion. In fact, if you've read the opinion, he phrases it such that "Full-time peace officers are entitled to the same exemption as are active duty military personnel." Because of this, a person either in possession of a GWL or a military ID, may enter school property (to include entry into the building), but only while dropping off or picking up a child.
     
  6. NullMatrix

    NullMatrix Member

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    :roll:

    A federal statute is void to the extent that it conflicts with the Constitution.

    This law was already declared unconstitutional once (US v. Lopez), then they added some vague generalities about interstate commerce and passed it again. :screwy:

    Has anyone even been successfully prosecuted under the new statute?
     
  7. GAGunOwner

    GAGunOwner Active Member

    Yes, the new law is still on the books. Yes, the feds do prosecute this. I think Malum posted some examples concerning this a couple years ago.
     
  8. ookoshi

    ookoshi Moderator

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    Actually, technically there is no conflict. State law does not say "A person who has a military ID is expressly allowed to carry on school property, regardless of Federal law to the contrary. That would be a conflict. State law exempts military and LEO from the laws prohibiting school carry. It does not expressly permit it.

    Federal law prohibits it.

    If there's no state law for murder, murder is still against the law because federal law prohibits it.
     
  9. ookoshi

    ookoshi Moderator

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    Yes, and multiple federal appeals courts have upheld it when the constitutionality was challenged. SCOTUS has declined to review thus far.
     
  10. frankr

    frankr Active Member

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    :cantsay: OCGA 16-5-1:

    "Murder; felony murder
    (a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

    (b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

    (c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

    (d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life."
     
  11. ookoshi

    ookoshi Moderator

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  12. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Well, forget the murder example. Murder is always a state crime, but it is "sometimes" also a federal crime, and/or a federal civil rights violation, depending on the circumstances.

    But ookosi has it right: Federal law trumps conflicting state law. Federal law says no guns within 1000 feet of school property unless you meet some FEDERAL exception under that FEDERAL law.

    Georgia can make their law tighter, more strict, but we can't make it looser.
    If we did try to make it looser, that would have no effect on a federal prosecution. Even if Georgia had no laws banning guns from school property, the feds do, and they can enforce their law through the FBI, the U.S. Marshall's Office, the U.S. Attorney's Office, and the U.S. District Courts (the trial-level court system for the feds).
     
  13. frankr

    frankr Active Member

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    Oops! Good call.
     
  14. CountryGun

    CountryGun New Member

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    Now, here come a respected attorney's opinion. Maybe you can explain why Georgia's law IS looser than federal law. In Georgia, a person who would qualify for, but not possess a GWL, may drive through a school zone with a loaded firearm in the car. Please explain. If I'm lyin' I'm dyin'. If I'm stupid, just tell me.

    Give you opinion, please, on whether a military ID would be adequate for carry on school property, en-lite of your opinion on the Federal law. In Georgia, the military ID is equal to a GWL. That is the opinion of the AG. The wording in his opinion would even suggest that he places military exemptions above LEOs, though we know that not to be true. Why, as others have suggested, would you think a service member could be arrested, whereas a GWL holder could not be? I shouldn't assume you agree. You may well differ. Thanks for your participation!

    And.....Sorry to be slow about getting back. After all, this thread was for me. :oops: I sing tenor with the Choral Society, and just got home from rehearsal.
     
  15. ookoshi

    ookoshi Moderator

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    CountryGun, it's worse than you think.

    The Gun Free School Zone Act in reality, screws up a lot of state laws. School carry for military is honestly not even the most f'd up part.

    As pointed out on: Wikipedia

    The federal outlaws all unlicensed carry nationwide 1000' around a school zone. You live in Arizona? Sorry, no unlicensed carry within 1000' of a school.

    The federal law screws up reciprocity, because even though the state you're traveling to may recognize a Georgia license, a Georgia license does NOT exempt you from the 1000' zone around school outside that state. You must have a license from the state you are in.

    The federal law outlaws carry by unlicensed off-duty police officers within 1000' of a school zone. The law's exemption only applies to officers operating in a official capacity.

    If you live in property owned by a public entity (certain government housing, I would assume), and your house is within 1000' of a school, guess what? No guns without a license IN YOUR OWN HOME. Someone was actually convicted of this before.

    IMO, someone who lives in public housing within 1000' of a school has the best case for getting this section declared unconstitutional under Heller and McDonald. It should be unconstitutional anyways, for dozens of reasons, but that one is the most easily argued in court, IMO.
     
  16. 70755

    70755 Guest

    OK, I will try.

    There are two domains here. State law, and Federal law. They are separate and stand on their own, are prosecuted on their own, etc. A more lenient state law on the same/similar topic, or a state law that carves out exceptions (to the state law) does not affect the federal law's applicability. You seem to be missing this point.

    The Georgia laws address the issue, as it has among other things, in particular defined "weapon" and "school zone" under 16-11-127.1. I agree it does appear it is not a violation of 16-11-127.1 for a license holder to carry while dropping off or picking up a student. Also there is the language related to others that may transit a school zone. (it might be a violation of 16-11-127 "government building", but that is a another topic)

    The Federal law is distinct and different. It has no relation to the Georgia law. Also, it defines school differently. It addresses a narrower definition of weapons, namely firearms. And as written it is clearly a violation of the federal law for most anyone, no matter how legal they may be under their state law, to drive on a public right of way within 1000 feet of a "school" with a non unloaded and locked up weapon in their car. It does not matter that millions of people probably violate this law every day. The point is it is a violation unless you are licensed by the state in which the school resides. The federal law also only applies a exception to law enforcement officers while performing their duties, and not while off duty. Yes, it is a very bad and poorly conceived and written law. But anyone is subject to being prosecuted under it. The feds seem to be very selective about it, however.
     
  17. EJR914

    EJR914 Cheezburger Operator

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    Boy, ookoshi, you sure are right. That really does screw up a lot of stuff.

    Yep, unfortunately, a more lenient state law does not trump federal law. Federal law is supreme to state laws. Just because a STATE doesn't say something is illegal, (same thing as saying something is legal) doesn't mean that the federal law can't trump it, and make it illegal for everyone in all 50 states.

    This is especially terrifying when you find out how many federal laws there are, and felony federal laws, and also, the fact that sometimes those laws are severely stretched to get a conviction.

    Ahh, sometimes I wish we could go back to a modified Article of Confederation.
     
  18. dunkel

    dunkel New Member

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    Wait...so I'm NOT ok picking up my daughter from school? I carry on my ID.

    Does public/private school matter?
     
  19. GAGunOwner

    GAGunOwner Active Member

    You are not okay unless you also have a GWL. Without a GWL you'd be exempt from the state law, but not the federal law.

    You better hope you don't run into an FBI agent or BATFE agent while dropping your daughter off. :lol:

    Can local or state police enforce a federal law? Generally, I don't think so. Can they detain you and call the feds? I don't know for certain but probably so.
     
  20. GAGunOwner

    GAGunOwner Active Member

    Alabama is an excellent example. Georgia and Alabama have reciprocity.

    It is legal in the State of Alabama for license-holders to carry in K-12 schools.

    However, since a school in Alabama is located...well...in Alabama...and your GWL is issued by the State of Georgia (and not Alabama) your GWL won't exempt you from the federal GFSZ law. You'd be legal under Alabama law, but not in the eyes of the feds.

    So the result is that even though Alabama license-holders can carry into an Alabama school, you as a GWL-holder cannot carry into an Alabama school, even though Georgia and Alabama have reciprocity with each other, because of this horrible federal law.