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SUPREME COURT TO DECIDE IF GUN FREE SCHOOL ZONES ARE CONSTITUTIONAL

Ninth Circuit Upholds Federal Act

A challenge to the federal law that bans possession of firearms within 1,000 feet of a school was rejected in United States v. Edwards, by the United States Court of Appeals for the Ninth Circuit, and the constitutionality of the statute was upheld. The Ninth Circuit concluded that Congress has the power to regulate guns that are brought within a school zone. Congress enacted the Gun Free School Zones Act in 1990, as part of the Omnibus Crime Bill.

Background: This case arose when the Sacramento Police Department's gang unit observed Edwards and four other males in the parking lot at Grant Union High School. After a search of his car, Edwards was arrested and charged with unlawful possession of .22 rifle and a sawed-off shotgun. He pleaded guilty, but challenged the constitutionality of the Gun Free School Zones Act, 18 U.S.C. ß922 (q)(1)(A) which states:

It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.

The court rejected Edwards' argument that the law was unconstitutional and concluded that Congress had the power under the Commerce Clause to enact the Gun Free School Zones Act.

Comment: The Ninth Circuit's opinion in Edwards creates a split within the federal courts which must be resolved by the United States Supreme Court. In United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), the Fifth Circuit held this law to be unconstitutional in a Texas case. The Fifth Circuit reasoned that the Act was an unauthorized exercise of power by Congress where there was no federal property or interstate commerce involved. The United States Supreme Court has agreed to review the Lopez case and will decide whether the Fifth Circuit erred when it held this law unconstitutional. (U.S. v. Lopez, certiorari granted April 18, 1994, 94 Daily Journal D.A.R. 5060) There is also pending state legislation, (AB 645, Allen), which would establish the "Gun-Free School Zone Act of 1995."

 

United States v. Edwards 13 F.3d.291(9th Cir. 1994)

[Vol. 1, No. 1 - June 1994, CELR]


EXCEPTION TO "ZERO TOLERANCE" GUN-FREE SCHOOLS

The Los Angeles Unified School Board will not expel a 7-year old who took an unloaded handgun to school in mid-January and showed it to classmates. It was reported that the District made the exception to its "zero tolerance" policy on handguns when parents testified that the boy was "very innocent," and that the gun belonged to a relative.

The School Board's action is interesting in light of the recently passed federal law that requires school districts to expel for one year any student who brings a gun to school or be denied federal funding. However, the law does provide that a local educational agency can "modify such expulsion requirement for a student on a case-by-case basis." (Elementary and Secondary Education Act (ESEA) ß14601 subd. (b)(1).)

[Vol. 1, No. 9 - March 1995, CELR]


CONGRESS CANNOT BAN GUNS NEAR SCHOOLS

A divided U.S. Supreme Court ruled in U.S. v. Lopez, that Congress exceeded its authority when it enacted the Gun-Free School Zones Act. The law passed in 1990, forbids possession of a firearm within 1,000 feet of a school. (18 U.S.C. ß922(q)(1)(A).)

Background: A 12th grade student in San Antonio, Texas was arrested for carrying a concealed weapon, and was charged under Texas law with possession of a firearm on school premises. The day after his arrest the state charges were dismissed, and he was charged under the federal Gun-Free School Zones Act. He was convicted and sentenced to six months in jail.

Lopez appealed and argued that his conviction was invalid because Congress exceeded its powers to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed the conviction. The Fifth Circuit reasoned that the Act was an unauthorized exercise of power by Congress because there was no federal property or interstate commerce involved.

The U.S. Supreme Court upheld the Fifth Circuit's decision and said that "the possession of a gun in a local school zone is in no sense an economic activity" that might have an effect on interstate commerce. The Court said that to accept the view that Congress may regulate all activities that might lead to violent crime would"convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

The Supreme Court's decision does not affect criminal laws passed in more than 40 states outlawing possession of firearms on or near school grounds. In California, Penal Code section 626.9, enacted during the 1994 legislative session bans possession of a gun within 1,000 feet of a school.

U.S. v. Lopez (1995) ____U.S. ___

[Vol. 1, No. 11 - May 1995, CELR]


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