We Take Another Hit Part III
How Do the New Gun Bans Affect Me?:
Most Commonly Asked Questions
Does the “Gun Free Zones” provision allow for any exceptions?
This provision, introduced by Sen. Herb Kohl, establishes gun free zones nearly 1/2 mi. in diameter around schools. While it does allow for exceptions, one must realize that granting such exceptions treats the right to keep and bear arms, not as a right but, as a privilege. The gun ban does exempt (for now) CCW holders who underwent a background check, or those traveling with a firearm that is both UNLOADED and LOCKED AWAY. It also exempts private residences, although one must make sure that he doesn’t carry his firearm to his car parked on the street. The bill does exempt those who are gaining access to hunting lands, BUT ONLY if one has prior approval from the “school authorities.” A law enforcement officer is exempted IF he is “acting in his or her official capacity.”
Will the private residence exemption exempt home schoolers who live within the gun-free zone?
No one can tell right now for sure. There appears to be a conflict in the law which the courts will have to settle. The private property exemption only applies to “private property not part of school grounds.” The U.S. Code (18 U.S.C. 921) defines “school zone” to be any place “in or on the ground of a public, parochial, or private school or within a distance of 1,000 feet of a public, parochial, or private school . . . . ” This section also defines a “school” as a place which “provides elementary or secondary education as determined under state law.”
Thus, there is at least some chance that the amendment would outlaw the possession of firearms by parents who home school their kids. Home schools are arguably “private schools” within the definition of “school zone,” and most state laws do recognize these as schools in some respect. Presumably, the Kohl language would allow parents to create a “school program” which involves firearms instruction. But, for young children or for uses apart from that program, firearms may well be prohibited in those homes. This would certainly be consistent with efforts by gun control advocates to remove firearms from homes with children.
Why does the Kohl amendment not mention anything about a “1,000 foot” school zone?
Many times when examining legislation by Congress, one must also look at existing law (or practice) to understand the full effect of the law. In this case, while “school zone” is not defined in the Kohl language, it is defined already in Title 18 of the U.S. Code. See definition in the answer above.
Will the “Gun Free Zones” provision allow authorities to set-up road-blocks and search for guns?
This is another instance where one must look to existing law or practice to determine the full effect of the law. The Fourth Amendment does offer some hurdles to general “stop and frisk” type gun sweeps. But based on different court decisions — and based on several police department precedents from around the country in places like Washington, D.C. — local authorities could do the following: they could establish “safety check points” in conjunction with the BATF within a 1,000 foot school zone to give sobriety checks, to check for seat belts being worn, and to visually inspect the passenger compartment for any evidence of firearms. Thus, the bill does not need to specifically authorize the police to set-up check points, since there is sufficient precedent for states and localities to enforce the “Gun Free Zones” in this manner.
Is the Lautenberg “Domestic Gun Ban” retroactive, and does it ban possession?
Yes and yes. Sec. 658(b)(2) of the Lautenberg provision amends the section of the U.S. Code that prohibits possession of a firearm to certain individuals. Now that the Lautenberg provision is law, the U.S. Code will read as follows:
18 U.S.C. 922(g): “It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
To prevent this ban from being retroactive, there would need to be a grandfather clause which is absent from the bill.
Does the Lautenberg gun ban ONLY apply to “violent” misdemeanors?
No. A person can become subject to Lautenberg’s lifetime gun ban for “the use or attempted use of physical force.” Quite often, domestic disputes will continue even after the police have arrived. Thus, a woman who slaps her husband in anger — in front of the police and in response to the abusive threats of her spouse — can be guilty of a “violent” misdemeanor. But has the wife truly been violent? What if she only “attempted” to slap him but misses? Under the provision which passed, she can be prohibited from possessing a firearm for the “attempted use of physical force,” and thus, will be just as disarmed as the truly violent spouse who is convicted of a felony.