Troubleshooting the Gun-Free School Zones Act: A Call for Amendment in the Age of Constitutional Carry

Texas Tech Law Review, Forthcoming

35 Pages Posted: 19 Mar 2022 Last revised: 10 May 2022

See all articles by Tyler Smotherman

Tyler Smotherman

Texas Tech University, School of Law

Date Written: February 3, 2022

Abstract

When Texas became the most recent state to enact “constitutional carry”—allowing ordinary citizens to carry concealed handguns without a permit—it inadvertently added to the many laws conflicting with the Gun-Free School Zones Act of 1990 (GFSZA). The GFSZA generally makes it a federal crime, punishable by five years in prison, to possess a firearm within 1,000 feet of any K–12 school unless “licensed to do so by the State in which the school zone is located.” Serious doubts remain as to whether the Act, even as amended after United States v. Lopez, is constitutional under the Commerce Clause. Likewise, post-Heller—and with the Supreme Court poised to establish a Second Amendment right to carry a firearm outside the home—doubts exist as to whether the Act is constitutional under the Second Amendment.

Dubious constitutionality aside, numerous public-policy problems have come to plague the overbroad Act, as its specificity conflicts with subsequent developments in state and federal gun laws. Citizens in twenty-one constitutional-carry states can now legally carry concealed firearms for self-defense without a permit. Thus, hundreds of thousands of otherwise law-abiding citizens regularly violate the GFSZA as they go about their everyday lives in urban and suburban areas across the United States. The Act also contains no exceptions for off-duty police officers carrying firearms under the Law Enforcement Officer Safety Act (LEOSA) or for citizens with out-of-state permits carrying under a valid interstate reciprocity agreement. Nor does the GFSZA provide a lawful self-defense exemption to its prohibition on the discharge of a firearm in a school zone. To rectify the myriad issues accumulated by the GFSZA over the last three decades, Congress should amend the Act to establish a more reasonable tie to interstate commerce and to exempt the lawful carry and defensive use of firearms by off-duty police officers and private citizens.

Keywords: gun-free, school, gun-free school zone, constitutional carry, concealed carry, firearm, gun, LEOSA, second amendment, Heller, Lopez, Bruen, GFSZA, self-defense, self defense

Suggested Citation

Smotherman, Tyler, Troubleshooting the Gun-Free School Zones Act: A Call for Amendment in the Age of Constitutional Carry (February 3, 2022). Texas Tech Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4025545 or http://dx.doi.org/10.2139/ssrn.4025545

Tyler Smotherman (Contact Author)

Texas Tech University, School of Law ( email )

United States

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