GFSZA and Military Carry

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GFSZA and Military Carry

Postby kwc » Thu Jun 29, 2017 7:20 am

With the passage of SB 199, active duty military members with an ID card and documentation of equivalent training are offered the same carry rights as a licensed resident. This allows, under state law, possession of a handgun within a school safety zone if the handgun does not leave the vehicle.

Would a military member possessing a handgun within a vehicle in a school safety zone still be in violation of federal law, specifically the Gun Free School Zone Act (GFSZA)? The GFSZA generally prohibits possession of a firearm in a school zone, but contains this exception:

"(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license"


Due to the licensing requirement under the GFSZA, this is most often interpreted to mean that nonresidents in a state can't enter a school zone with a firearm unless they have a carry license issued by the state in which the school is located. With that context, it is my belief that a military member without an OH CHL would also be in violation of the GFSZA, but not in violation of state law.

I realize most members here are not licensed attorneys (nor am I)... but would like to hear opinions on this.

Thank you,
kwc
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Re: GFSZA and Military Carry

Postby schmieg » Thu Jun 29, 2017 9:27 pm

kwc wrote:With the passage of SB 199, active duty military members with an ID card and documentation of equivalent training are offered the same carry rights as a licensed resident. This allows, under state law, possession of a handgun within a school safety zone if the handgun does not leave the vehicle.

Would a military member possessing a handgun within a vehicle in a school safety zone still be in violation of federal law, specifically the Gun Free School Zone Act (GFSZA)? The GFSZA generally prohibits possession of a firearm in a school zone, but contains this exception:

"(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license"


Due to the licensing requirement under the GFSZA, this is most often interpreted to mean that nonresidents in a state can't enter a school zone with a firearm unless they have a carry license issued by the state in which the school is located. With that context, it is my belief that a military member without an OH CHL would also be in violation of the GFSZA, but not in violation of state law.

I realize most members here are not licensed attorneys (nor am I)... but would like to hear opinions on this.

Thank you,
kwc

My argument, were I not retired and representing someone in that situation, would be that a license is not a piece of paper or plastic, but an authorization given by the state to an entity (individual or otherwise). The statute thus grants a license to the serviceman who meets the requirements set forth.
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Re: GFSZA and Military Carry

Postby DontTreadOnMe » Thu Jun 29, 2017 10:12 pm

If I understand the question, the problem isn't having or not having a physical license, it's this part of the law:
before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license"

In other words, because no law enforcement authority reviews that the individual is qualified, they wouldn't be GFSZA-exempt.

A few years ago it came out that this could be a problem for some NH licensees, because NH law allows licenses to be issued either by the local mayor, selectmen (governing board) or the police. However in practice apparently most are issued by the police, so the chances of it actually being an issue are very very low.
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Re: GFSZA and Military Carry

Postby JustaShooter » Fri Jun 30, 2017 6:56 am

DontTreadOnMe wrote:If I understand the question, the problem isn't having or not having a physical license, it's this part of the law:
before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license"

In other words, because no law enforcement authority reviews that the individual is qualified, they wouldn't be GFSZA-exempt.

I tend to agree - I don't think they are exempt from the GFSZA provisions carrying under the Active-Duty Military provision in Ohio law.
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Re: GFSZA and Military Carry

Postby kwc » Sat Jul 01, 2017 11:02 pm

schmieg wrote:My argument, were I not retired and representing someone in that situation, would be that a license is not a piece of paper or plastic, but an authorization given by the state to an entity (individual or otherwise). The statute thus grants a license to the serviceman who meets the requirements set forth.


Judge Susan Myerscough (C.D.IL) came to the same conclusion with respect to Illinois' FOID card statutory exemption for nonresident firearm possession, in Mishaga v. Schmitz (http://www.leagle.com/decision/In%20FDCO%2020151002N54/MISHAGA%20v.%20SCHMITZ), by citing the corresponding Black's Law Dictionary definition of "license." (Coincidentally, the plaintiff was an Ohio resident who wanted to possess a firearm in Illinois.)

But given the ambiguity, I think the safest route for military members is simply to get an Ohio license if there is a need to transit a school zone in a vehicle while armed.

Thanks for the inputs.
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Re: GFSZA and Military Carry

Postby schmieg » Sat Jul 01, 2017 11:57 pm

kwc wrote:
schmieg wrote:My argument, were I not retired and representing someone in that situation, would be that a license is not a piece of paper or plastic, but an authorization given by the state to an entity (individual or otherwise). The statute thus grants a license to the serviceman who meets the requirements set forth.


Obviously, she is a very learned judge. :D

Judge Susan Myerscough (C.D.IL) came to the same conclusion with respect to Illinois' FOID card statutory exemption for nonresident firearm possession, in Mishaga v. Schmitz (http://www.leagle.com/decision/In%20FDCO%2020151002N54/MISHAGA%20v.%20SCHMITZ), by citing the corresponding Black's Law Dictionary definition of "license." (Coincidentally, the plaintiff was an Ohio resident who wanted to possess a firearm in Illinois.)

But given the ambiguity, I think the safest route for military members is simply to get an Ohio license if there is a need to transit a school zone in a vehicle while armed.

Thanks for the inputs.


Obviously, she is a very learned judge to agree with me. :D

The upside of this is that this offense is almost never charged (actually, I am unaware of any) unless the person is caught committing some other illegal act in such an area. The downside is that there are few areas in most urban and suburban areas that are not within a 1000' radius of a school. In my little burg of Madeira, we have four schools spread out over the town and those 1000' radii are as the crow flies, not as the road runs.
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Re: GFSZA and Military Carry

Postby kwc » Sun Jul 02, 2017 7:23 am

schmieg wrote:Obviously, she is a very learned judge to agree with me. :D


On this issue, perhaps... but she has written some other opinions that are troubling with respect to carrying a firearm in public. We're currently awaiting her summary judgment regarding nonresident carry in Illinois. (She ruled against our Preliminary Injunction motion, and the CA7 upheld her ruling...)

Nevertheless, her opinion in the Mishaga case was encouraging.

schmieg wrote:The upside of this is that this offense is almost never charged (actually, I am unaware of any) unless the person is caught committing some other illegal act in such an area.


Yes, that's been my understanding, too.
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Re: GFSZA and Military Carry

Postby DontTreadOnMe » Sun Jul 02, 2017 12:05 pm

kwc wrote:
schmieg wrote:My argument, were I not retired and representing someone in that situation, would be that a license is not a piece of paper or plastic, but an authorization given by the state to an entity (individual or otherwise). The statute thus grants a license to the serviceman who meets the requirements set forth.


Judge Susan Myerscough (C.D.IL) came to the same conclusion with respect to Illinois' FOID card statutory exemption for nonresident firearm possession, in Mishaga v. Schmitz (http://www.leagle.com/decision/In%20FDCO%2020151002N54/MISHAGA%20v.%20SCHMITZ), by citing the corresponding Black's Law Dictionary definition of "license." (Coincidentally, the plaintiff was an Ohio resident who wanted to possess a firearm in Illinois.)


The case you linked to didn't address the question you asked. Maybe you really meant to ask a different question? I don't know, but you asked specifically about the federal law regarding possession of a firearm in a school zone - which wasn't at issue in the cited case. It supports the idea that the term 'license' doesn't need to mean a physical object or an actual record of permission, but that doesn't mean every license is as good as every other. Specifically the GFSZA you asked about only exempts licensees if "the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license". I don't see how that applies to Ohio's military carry law.

You're right that this is almost never charged as a stand-alone charge, but it certainly could be. I also agree with you that the safest route for military members is simply to get an Ohio license.
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Re: GFSZA and Military Carry

Postby kwc » Sun Jul 02, 2017 2:44 pm

DontTreadOnMe wrote:
kwc wrote:
schmieg wrote:My argument, were I not retired and representing someone in that situation, would be that a license is not a piece of paper or plastic, but an authorization given by the state to an entity (individual or otherwise). The statute thus grants a license to the serviceman who meets the requirements set forth.


Judge Susan Myerscough (C.D.IL) came to the same conclusion with respect to Illinois' FOID card statutory exemption for nonresident firearm possession, in Mishaga v. Schmitz (http://www.leagle.com/decision/In%20FDCO%2020151002N54/MISHAGA%20v.%20SCHMITZ), by citing the corresponding Black's Law Dictionary definition of "license." (Coincidentally, the plaintiff was an Ohio resident who wanted to possess a firearm in Illinois.)


The case you linked to didn't address the question you asked. Maybe you really meant to ask a different question? I don't know, but you asked specifically about the federal law regarding possession of a firearm in a school zone - which wasn't at issue in the cited case. It supports the idea that the term 'license' doesn't need to mean a physical object or an actual record of permission, but that doesn't mean every license is as good as every other. Specifically the GFSZA you asked about only exempts licensees if "the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license". I don't see how that applies to Ohio's military carry law.

You're right that this is almost never charged as a stand-alone charge, but it certainly could be. I also agree with you that the safest route for military members is simply to get an Ohio license.


I agree--that case doesn't answer the full question and only addresses the definition of "license" as it relates to the Illinois FOID. The case was not a GFSZA-related case. That definition of "license" may or may not apply in the context of the GFSZA. It's hard to say what the legislators originally intended.

Verifying "the individual is qualified under the law to receive the license" remains the sticking point. Blanket authorization (e.g. if a military member possess proof of equivalent training, he or she is deemed qualified under the OH statute) probably doesn't meet this intent.
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Re: GFSZA and Military Carry

Postby airforcegrunt » Sat Nov 04, 2017 5:03 pm

[/quote]But given the ambiguity, I think the safest route for military members is simply to get an Ohio license if there is a need to transit a school zone in a vehicle while armed.[/quote]

I renewed mine when I was home on leave two years ago. I saw this new provision and still think it would be easier to spend the $55ish dollars vs $$$$$ for a lawyer incase something goes south.
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