UPDATE: The section of the US Code (Section 921, http://www.law.cornell.edu/uscode/text/18/921#9577745468023118216) that defines the federal “gun free zone” does create an unconstitutional 1000 ft bubble around a school. However, that is only applicable to interstate commerce.
There is a lot of talk about so-called “gun free zones” in Texas. I want to discuss the reality of what these mean using local, Texas, and federal laws. This post is NOT meant to be legal advice and presented for merely informational purposes. To read the actual laws quoted in this blog post, please click the associated URL links.
Before talking about these zones, we must define them. State and federal laws about what constitutes a “gun free zone” are very well defined. I’ll start first with the federal laws that govern these “gun free zones.”
According to Title 18, Part I, Chapter 44, Section 922 of the US Code, a school is basically defined as the school grounds. This includes the building and all real property attached to that building. The code simply makes it unlawful to “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” This is a legislative trick, but one Congress passed trying to insinuate that simply carrying a firearm is somehow engaging in interstate commerce. Technically, under this sweeping interpretation of the interstate commerce clause of the constitution, Congress could literally dictate what clothes you wear if any part of them was manufactured, printed, assembled or the cloth grown in another state.
When this law was first passed, it was ruled unconstitutional and unenforceable. In response, Congress tweaked the wording a bit to try and make it fit within the confines of “interstate commerce.” It’s a clever trick, but one that hasn’t yet been challenged to my knowledge. Basically, this law says that all guns are subject to the law because there isn’t a single gun that is completely manufactured in one state. If ONE part of the gun ever crossed a state line, the Congress thinks it maintains the authority to regulate the ownership, use, and transportation of that firearm for the rest of its life. I can’t imagine that holding constitutional water, except in the most anti-gun of Supreme Courts. But, let’s just assume for the sake of argument that this law is constitutional and valid. To avoid being subject to it, simply don’t take a firearm on school property or make sure if you do that the firearm was completely built in Texas, including the mining for the ore. The law does NOT contain a “buffer zone” that defines a radius from the school a gun may not be carried.
That brings us to Texas law on “gun free zones.” Texas law, like all its statutes, is easy to understand, but you have to follow numerous rabbit trails to get to the truth.
Chapter 46 of the Penal Code is where the regulation of firearms in relation to schools is defined. In our great state, it’s unlawful for a person to carry on or about his or her person a handgun, illegal knife, or club except in certain instances. Texas law also prohibits us from having or carrying an explosive weapon, a machine gun, a short-barrel firearm, a firearm silencer, knuckles, armor-piercing ammunition, a chemical dispensing device, a zip gun, or a tire deflation device unless you have a tax stamp required under the National Firearms Act.
With a concealed handgun license, Texans can carry a handgun as long as it remains concealed. If the knife is less than 5.5 inches (we are also going to fight against this insane law), it is not an “illegal knife.” If you are on your own premises or premises under your control or inside of or directly en route to a motor vehicle or watercraft that you own or is under your control you can have any of those and even carry them openly. Handguns can’t be in plain view at any time (for now). Obviously, people prohibited by law can’t have a gun; neither can members of criminal street gangs.
Section 46.03 is the law that determines where guns are prohibited. For the purposes of this blog post, I’ll limit the scope to those places related to schools. According to the law, “[a] person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon…on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution.” It goes on to define “premises” as “a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”
Some may be asking, “where does this 1000 foot buffer zone come from?” The 1000 buffer zone around schools is frequently attributed to firearms, but it only applies to possession of drugs as found in federal law. There is no buffer zone for the possession of a firearm in federal law except on the property itself. Likewise, Texas state law does not create a buffer zone. The next question is, “what about the 300 foot rule?”
This is where law enforcement and the general public get confused because the definition of “premises” changes. Section 46.11 of the Texas Penal Code is the only section that talks about a “gun free zone.” However, it doesn’t ban guns within them. Instead, Texas law merely makes any gun crime committed within a school zone a greater offense.
For example, if I openly carry a modern handgun in Texas, I would be charged with a Class A misdemeanor for unlawful carry of a firearm. However, if I was carrying that same handgun within the 300 foot “school zone,” that same offense would now be a 3rd degree felony accusation. That only applies to offenses described in Chapter 46 of the Penal Code. The definition of “premises” changes here from only applying to the school building to applying to all school property, but only for the purposes of making the gun offense more severe.
To sum up, there is only a “gun free zone” for the purposes of making certain gun crimes more severe in penalty and punishment. It does NOT mean you cannot carry a lawfully possessed firearm within those imaginary lines. It merely says you can’t commit a crime within those boundaries and, if you do, the charge jumps up to the next greater offense (ie: class b misdemeanor to a class a, or class a misdemeanor to a class 3 felony).
According to the Texas Constitution, only the legislature has the power to regulate the wearing of arms. This state preemption of gun laws in enshrined in the Local Government Code, Section 229.001. It states, quite clearly, “a municipality may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies.” So a Texas city, town, or municipality can’t create more strict gun regulations than the state allows. Municipalities are given power to create ordinances in limited circumstances, like city parks, public meetings of a municipality, county, or other governmental body etc. (note they can’t just make public buildings off-limits), political rally, parade, or official political meeting, or at a non-firearms-related school, college, or professional athletic event. That’s it.
Why do we bring this up?
This is a sign in Meadows Place, Texas. It purports to describe the city as “gun free.” On the city’s website, they are “pleased to announce the establishment of several Drug and Weapon Free Zones.”
“The City of Meadows Place takes the safety and well-being of our children very serious and has made this of the highest priority by initiating the Drug and Weapon free zones around our schools and parks in accordance with State and Federal laws.” They continue, “Because of the size of the City and the location of the schools and parks this encompasses a majority of the city.”
The problem here is multi-faceted. First of all, cities only have the authority to regulate guns within city parks, not around them. Local Government Code 229.001 states, municipalities “may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies” except “at a public park” a few other places not relevant here. The law says AT a public park, not around a public park. However, you can see from this map provided by the City of Meadow Place that they don’t care about the law.
The red lines represent the “no guns” zones and the green lines mean “no drugs” zones. As explained earlier, it is not illegal to carry a lawfully possessed firearm within these boundaries, it’s just MORE illegal to illegally carry a firearm or other prohibited weapon within them. And Texas law does NOT allow municipalities to create these “buffer zones” around parks, only schools. So, the red lines around the green areas above are meaningless in the eyes of the law and Open Carry Texas.
The problem lies in the legal reality there there really is no such thing as a “Gun Free Zone” in Texas. This “zone” is nothing more than a criminal act enhancement law. If you commit a gun crime within these invisible lines, that crime is now amplified. However, the mere carry of a firearm outside of the building within these “gun free zones” is perfectly legal.
I’m not advocating walking up to the front door of a school. While perfectly legal, it’s not prudent or reasonable while our liberal education system is working so hard to scare the hell out of kids on mere sight of a firearm. We need to continue reconditioning America on the facts and reality about guns in the hands of law abiding citizens.
What I am trying to get across is that the City of Meadows Place isn’t as “gun free” as they think. All they are doing is simply making it more damaging for a criminal to use a gun in the commission of a crime. Frankly, I’m okay with that. If you use a gun to commit a crime, you shouldn’t get a slap on the wrist.
Perhaps the most disgusting aspect of this whole “gun free zone” rhetoric they subscribe is what they do while telling you not to. It turns out the city isn’t as divisive against guns as they’d have you believe. They love guns, as long as those guns are in their hands and not yours. Take, for instance, this screenshot of Meadows Place Police Department purchasing AR15 pistols (no, that’s not Dick Cheney…I don’t think!).
In fact, as a cookie to help legislators see the worth in passing unlicensed we’re willing to accept making Texas as a whole one of these “gun free zones,” making any gun crime in Texas an instant felony. The abuse of a right is the only thing that should negate the exercise of it.
One of the many efforts that Open Carry Texas is engaged in is making sure that is cities are going to hold gun owners accountable for obeying the law, gun owners must hold cities accountable for obeying the laws as well. This is why we are fighting the City of San Antonio and their unlawful ordinance that bans loaded rifles within city limits.
We will continue to stand for our right to keep and bear arms without prejudice and without reservation. Someone needs to stand up and put a stop to our runaway governments and demand respect for our rights and the return of them. We, the People, don’t beg government to give back what is inalienable to us. Remember that “government[s] are instituted among men, deriving their just powers from the consent of the governed.“
When government begins to dictate away our natural right to self defense, we have the right to take that power back. We have a right to challenge it. And challenge it we will.