Trump wants to end the Gun-Free School Zones Act — let’s at least review it
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In 2010, a Wisconsin man was charged with felony firearm possession.

His crime?

His travels allegedly took him within 954 feet of a school, or 46 feet too close, according to state law.

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He was twice charged for this journey. Initial charges were dismissed, because the measurement was to private property, exempt under the law. Priorities allowed police, within a day of that dismissal, to discover a second location allegedly transited, a public sidewalk, was barely within 1,000 feet of a school.

 

Though both charges were dismissed, the man was nevertheless treated to a two-week stay in jail.

A year ago, President Trump stated, “I will get rid of gun-free zones on schools ….” President Trump’s addressing the NRA convention this month makes it timely to review the federal analogue of the Wisconsin statute, the Gun-Free School Zones Act.

It’s a peculiar statute.

Numerous aspects of the federal act commend its repeal. From Jan. 1, 2016, through March 31, 2017, only 25 defendants were charged in a state or the District of Columbia with violating it. Only four were not also charged with another federal crime carrying a greater maximum sentence, such as possession of a firearm by a felon. It’s unsurprising a 2013 U.S. Sentencing Commission primer on major firearms statutes doesn’t reference this act.

It’s difficult to imagine a federal statute, so rarely enforced, can have a material, positive impact. Asserting negligible enforcement instead evidences the act’s efficacy is likely restricted to those who can dissonantly claim, “Something has to be done,” though the murder rate in the last few years has hovered at or near a 40-year low.

But the act can create burdensome detours and have severe consequences for those who are inadvertently unsuccessful in navigating around prohibited areas, generating unintentional violations and frivolous, sporadic prosecutions.

Some corresponding state provisions are somewhat more frequently enforced. Until 2011, the Wisconsin statute made it a felony to possess a firearm within 1,000 feet of school grounds, subject to assorted exceptions, including being licensed by the state.

California, for example, also maintains a statute similar to the former Wisconsin law.

In 2011, Wisconsin removed areas outside school grounds from the felony prohibition (retaining a possible fine). Yet prosecution of the statute remained steady — according to a commercial database (evidently excluding juveniles), at about ten per year.

Although there certainly have been tragedies, both before the change and after, the state enforcement pattern in Wisconsin also does not reveal a 1,000-foot buffer is effective in influencing conduct. The experience is unexpected, if the buffer were to be important in limiting actions on school grounds.

Like the Wisconsin law, the federal statute generally does not restrict possession by a person “licensed to do so by the state in which the school zone is located.” Recently, many states have loosened restrictions on defensive firearms possession.

A growing number don’t require separate gun permits. Curiously, this authorization is apparently insufficient to comply with the Federal Gun-Free School Zones Act. This act, then, can ensnare those who try to be law-abiding.

Even more troublesome is an interpretation by the Federal ATF. States often streamline licensure for nonresidents through reciprocity. Incredibly, as one can learn by scouring internet forums, the ATF has asserted state licensure through reciprocity doesn’t make one “licensed to do so by” that state.

That assertion is odd. It’s in stark contrast to the Supreme Court’s 2015 King v. Burwell decision. There, the Court holds an exchange a state elects not to create is nevertheless “established by the State.”

Additionally, other statutes or rules contemplate one authorized to engage in activity, by reciprocity or by statute creating blanket authorization, is “licensed by” the government.

Residents in my home state, Missouri, have assessed the benefits of allowing defensive firearms possession, amending Missouri’s constitution to enhance protection of the right to bear arms.

Missouri generally doesn’t license nonresidents. Rather, it recognizes out-of-state permits. But, given the ubiquity of elementary and secondary schools, it’s doubtful a nonresident visiting my hometown could, per the ATF, carry a loaded firearm for self-defense to the downtown area. At most, there may be a Byzantine route risking the type of survey some in Wisconsin favor.

There isn’t a plausible reason why states should be unable to delegate vetting to a person’s state of residence. The scant enforcement of the Gun-Free School Zones Act suggests it’s ineffective in addressing extant problems, providing benefits insufficient to criminalize acts states have sought to authorize.

Royce de R. Barondes is the James S. Rollins Professor of Law at the University of Missouri, where he teaches firearms law.


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