The Gun-Free School Zones Act Is Doubly Dubious

Rep. Thomas Massie (R–Ky.) last week reintroduced a bill that would repeal the federal Gun-Free School Zones Act (GFSZA), which he says jeopardizes student and teacher safety by prohibiting armed defense against violent intruders. As I explain in my new book Beyond Control, that law is also problematic for two constitutional reasons.

The GFSZA, which Congress originally enacted in 1990, makes it a felony to possess a gun within 1,000 feet of an elementary or secondary school. In 1995, the Supreme Court said the law was not a valid exercise of the federal government's power to regulate interstate commerce.

"The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce," Chief Justice William Rehnquist wrote. "If we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

Rehnquist also noted that the law "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." The following year, Congress sought to address that concern by amending the GFSZA so that it applied only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce."

The U.S. Court of Appeals for the 8th Circuit thought Congress had cured the problem identified by Rehnquist. Because the law "contains language that ensures, on a case-by-case basis, that the firearm in question affects interstate commerce," the appeals court ruled in 1999, it is "a constitutional exercise of Congress's Commerce Clause power."

The U.S. Court of Appeals for the 9th Circuit concurred in 2005. It noted that "incorporating a jurisdictional element into the offense has traditionally saved statutes from Commerce Clause challenges."

Congress, in short, initially forgot it was supposed to be regulating "interstate or foreign commerce." But after the Supreme Court reminded it, the invocation of that phrase supposedly was enough to fix the law, even though nothing of substance had changed.

In addition to relying on a highly commodious understanding of the Commerce Clause, the GFSZA raises questions under the Second Amendment. Although the Supreme Court has said schools themselves qualify as "sensitive places" where guns can be banned, that does not necessarily mean zones extending a fifth of a mile in every direction from school grounds fall into the same category.

Because schools are scattered throughout communities across the country, those zones cover a lot of territory. In most cities, it would be difficult for someone to travel without traversing one or more of them.

The GFSZA makes exceptions for guns possessed on private property and for people who are "licensed" to publicly carry firearms. But 29 states allow adults to carry guns without a permit, provided they are not legally disqualified from owning them.

What does that mean for someone in one of those states who wants to carry a gun for self-protection? That is one of the questions posed by a 9th Circuit case involving Gabriel Metcalf, who lives across the street from an elementary school in Billings, Montana.

Metcalf was convicted of violating the GFSZA because he stepped onto the sidewalk in front of his home while carrying a shotgun. Metcalf, who armed himself because of a dispute with a neighbor who was subject to a restraining order, was not violating state law, since Montana allows any qualified gun owner to carry a gun without a permit.

State legislators explicitly said that requirement is good enough to qualify for a GFSZA exemption. But federal prosecutors disagreed.

In addition to the statutory issue, Metcalf's case raises the question of how far the federal government can go in deciding exactly where people may carry guns for self-defense—a right that the Supreme Court has said is guaranteed by the Second Amendment. Together with the GFSZA's risible reliance on the Commerce Clause, that presumption makes the statute doubly dubious.

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