Constitutional carriers subject to arrest while driving near schools

February 10, 2023

by Lee Williams

Now that 25 states have passed constitutional carry laws, there are millions of law-abiding Americans who have chosen to exercise their Second Amendment rights by carrying a defensive firearm either openly or concealed, without a permission slip from the government.

Unfortunately, federal law has not kept up with the national constitutional-carry movement, especially the Gun-Free School Zones Act of 1990. The Act prohibits possession of a firearm within 1,000 feet of a school – of school property. Motorists who drive by a school likely fall well within this 1,000-foot gun-free zone.

The GFSZA does not recognize constitutional carry or any other form of permitless carry. There is one exception: gun owners who possess a valid concealed-carry permit or license issued by their state are exempt from the law. To be clear, constitutional carriers are not.

To comply with the GFSZA, permitless carriers are supposed to stop before they enter the gun-free zone, unload their firearm and secure it in a locked container or rack within their vehicle. If they do not comply and are caught, the GFSZA is punishable by a $5,000 fine and up to five years in a federal prison.

In the mid-1990s, the U.S. Supreme Court found that the GFSZA was unconstitutional because Congress had “exceeded its authority under the Commerce Clause.”

President Bill Clinton turned to his Attorney General, Janet Reno, for a fix. Reno produced an amendment that required the government to prove that the firearm has ‘‘moved in or the possession of such firearm otherwise affects interstate or foreign commerce.’’

“The Attorney General reported to me that this proposal would have little, if any, impact on the ability of prosecutors to charge this offense, for the vast majority of firearms have ‘moved in commerce’ before reaching their eventual possessor,” Clinton wrote in a letter to Congress.

The U.S. Supreme Court has not ruled on the constitutionality of the amended law.

A case study

At 2:18 a.m. on December 20, 2020, a Beloit (Wisconsin) police officer stopped a silver SUV for a traffic offense.

“The traffic stop occurred less than 1,000 feet from a school,” an ATF press release states.

The vehicle was driven by David Barber, 38, of Beloit. Barber handed the officer a state-issued ID card. He did not have a valid driver’s license. Barber was a prohibited person. At the time of the traffic stop, he was on federal probation after being released from prison for heroin trafficking.

According to the press release, “The officer noticed a large revolver and open alcohol in the center console and ordered Barber to step out of the vehicle. Barber then drove off fleeing the scene.”

The ATF said officers went to the address on Barber’s ID and found him inside his brother’s apartment. They located a Weihrauch .45 Colt single-action revolver inside a medicine cabinet. Barber’s DNA was found on the trigger of the gun.

The ATF press release never mentions how officers gained entry to the locked apartment building after they arrived, or that they never bothered to get a search warrant before searching Barber’s brother’s apartment.

“While tenants have keys to the two common entrances, everyone else generally needs to be ‘buzzed in’ by a resident using the electronic door release button inside each apartment. In this case, police used a pocketknife to force open a common entrance door,” Barber’s defense attorney wrote in a motion to suppress evidence, in this case the revolver.

While a judge overruled Barber’s motion to suppress, an attorney familiar with the case said the evidentiary issues forced prosecutors to offer Barber a plea deal. They charged him with violation of the Gun-Free School Zone Act, rather than the more serious Felon in Possession of a Firearm statute.

Assistant U.S. Attorney Corey Stephan, who prosecuted the case, would not discuss his reasons for negotiating a plea and offering Barber the lesser charge.

“I represent the government in this particular case,” Stephan said. “There may in fact be an appeal in this case.”

Neither Stephan nor his boss, United States Attorney Timothy M. O’Shea, could say how many other GFSZA cases Beloit police have referred to the ATF or the U.S. Attorney’s Office that resulted from traffic stops that were made within 1,000-feet of a school.

Barber pleaded guilty to the lesser charge on October 12, 2022.

Last week, U.S. District Judge William M. Conley sentenced him to 42 months in federal prison for possessing a firearm in a school zone.

Barber’s case was investigated by Beloit Police and the ATF as part of Project Safe Neighborhoods, which the ATF describes as “a program bringing together all levels of law enforcement and the communities they serve to reduce violent crime and gun violence, and to make our neighborhoods safer for everyone.”

Attempt to repeal

Last year, Congressman Thomas Massie, (R-KY), introduced legislation to repeal the Gun-Free School Zone Act by re-introducing his “Safe Students Act,” which would have made it easier for state and local governments – including school boards – to establish their own firearm policies.

“Gun-free zones are ineffective and make our schools less safe. Since 1950, 98 percent of mass public shootings have occurred in places where citizens are banned from having guns,” Rep. Massie said at the time. “Banks, churches, sports stadiums, and many of my colleagues in Congress are protected with firearms. Yet children inside the classroom are too frequently left vulnerable.”

Massie’s legislation, which was originally introduced by Congressman Ron Paul (R-TX) in 2007, was strongly supported by pro-gun groups.

Massie’s office did not immediately respond to questions about whether he intends to re-introduce the legislation in the 118th Congress.

Takeaways

The Gun-Free School Zone Act raises serious safety and constitutional issues.

First and foremost, as Congressman Massie pointed out, gun-free zones kill. They’re magnets for mayhem. They place our children in extreme peril, while disarming those who would defend them. This alone is reason enough to repeal the Act.

Legally, the GFSZA is a trap. The Act is waiting silently for any unsuspecting gun owner to drive by a school. It is unreasonable to assume these law-abiding folks are even aware they’re violating the law. And, most certainly, the penalty does not fit the “crime.”

In addition to infringing on the Second Amendment, the GFSZA also raises Fifth Amendment concerns, especially in states that require a concealed-carrier to announce to law enforcement that they are armed when stopped, or to admit they’re carrying a concealed weapon if asked by police.

Finally, the Act is ripe for abuse. I would hope that the ATF isn’t advising its Project Safe Neighborhood partners to focus their traffic stops within 1,000 feet of a school so federal charges can be brought if a firearm is found. But the ATF has shown it does not care if its actions criminalize the law abiding. Right now, millions of Americans have to decide whether they should risk becoming felons or comply with ATF’s unconstitutional rule making, after purchasing firearm accessories the ATF once said were perfectly legal. Therefore, it wouldn’t be a big surprise if the ATF is providing guidance on other ways to circumvent the United States Constitution.



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