Self defense in a "gun free school zone"
Racine, WI. Four thugs knock a fellow down, try to rob him, fail to see that he is open carrying (which is legal). He draws, points in a safe direction, and announces that he is armed, and they of course flee.
Hat tip to reader Carl in Chicago...
Should he be? No. Will he? Hope not.
I know here in TN a lot of prohibited places have an affirmative defense provision.
I'm thinking he should have shot one. It could have helped him in his defense. ;-)
Posted by: Rustmeister at May 7, 2009 10:04 AM
It's my understanding that the current federal gun free school zone law was adopted after the Supremes knocked out the previous law (with the same rules) on a technical drafting issue. Congress essentially adopted the old law again after fixing the drafting problem.
BUT - have there been ANY prosecutions under the new law (other than in connection with some other felony prosecution)? Even if there have not been any, it's always dangerous to have a law on the books that the prosecutors can use at their whim. Even if this law is not generally used in cases of standalone violations, I have to wonder if (for example) the current administration might not be checking the backgrounds of all fund managers who are not cooperating in handing over Chrysler to the UMW, just in case any of them may have carry permits and drive in cities where they have to travel within range of schools?
Posted by: wrangler5 at May 7, 2009 10:18 AM
A perfect example of why many times after only the display of a weapon to stop an assault, the victim never reports it. Rather than risk criminal charges for defending him or herself, it's often more prudent to simply leave the area. Unfortunately this results in the crime never being reported, and the value of the armed citizen being able to protect himself never being documented as well. Given the number of guns believed to be in cities like New York or Chicago, where the average person is denied the right to legal carry, this could not be an uncommon occurrence.
Posted by: Harvey at May 7, 2009 10:33 AM
According to the article, he violated a state law prohibiting guns near schools, not federal. With Heller out there now, I'd bet a blanket ban on weapons near schools wouldn't pass constitutional muster if it got in front of a court. Assuming incorporation first, that is.
Posted by: bombloader at May 7, 2009 10:35 AM
Sounds like this could be a promising test case for incorporation: open carry, no shots fired, clear case of self-defense, etc.
Posted by: Turk Turon at May 7, 2009 12:02 PM
Could be, but incorporation will be decided long before that. Oral arguments in the 7th Circuit (same fed circuit as Wisconsin) are on May 26th in Chicago. If the 7th rules against incorporation, it's going straight to SCOTUS.
Posted by: Don Gwinn at May 7, 2009 02:57 PM
Without going back and reading my references again, my recollection of Lopez was that the Court threw out the federal Gun Free School Zone Act on the grounds that the federal government didn't have any authority to prohibit the carrying of firearms near schools under the Commerce Clause (the usual vehicle for such federal encroachment of state matters) or any other clause, since carrying didn't affect interstate commerce. The legislature then went back and passed the exact same law with an added section stating, in effect, "oh yes it does too." As far as I know there haven't been any prosecutions under the new law except incidental to real crimes.
Posted by: Ken at May 7, 2009 03:02 PM
"Oral arguments in the 7th Circuit (same fed circuit as Wisconsin) are on May 26th in Chicago."
Have there been any moves for advocates to pack the courtroom like the CalGuns folks did for the Nordyke case?
200 so gun-advocates in suits demonstrates a constituency.
Posted by: jdberger at May 7, 2009 03:50 PM
They talk about how "as soon as you step on your front porch you may be breaking the law" which is probably true whether you are packing a gun on your hip or have it unloaded in a range bag because you're headed out for some target practice.
These laws are just plain stupid. Hope this guy's situation points that out to the people of Wisconsin.
In Colorado with a CCW you are legally allowed to have a weapon in your vehicle in a school zone. Without a CCW you are breaking the law everytime you drive past a school. Even with a CCW you are breaking the law if you are transporting a long gun.
Not that people get randomly prosecuted ... but why give a police officer or D.A. a law that s/he can choose to be abusive with?
Posted by: steve at May 7, 2009 04:27 PM
When I first saw this, I tripped over the vehicle thing. I took the headline term "biker" to mean motorcyclist.
As a high-miler motorcyclist who spends lots of time in Cheeseland, I was intrigued about charges because the Wisconsin law prohibits vehicle carry of any kind, even on motorcycles.
After a third reading, I now take it that it's a bicylist, not a motorcyclist.
Apparently I need to take the engines out of my bikes at the state line.
Posted by: WP Zeller at May 7, 2009 07:14 PM
Slightly off-topic but still NEWSWORTHY:
You know the old argument that police cannot be everywhere to protect everyone at all times? Well, the same olds true navies and pirates globally.
Joint statement of Michèle A. Flournoy, Under Secretary of Defense for Policy and Vice Admiral James A. Winnefeld, Jr., USN Director for Strategic Plans and Policy Joint Chiefs of Staff, at the U.S. Senate Armed Services Committee hearing TO RECEIVE TESTIMONY REGARDING ONGOING EFFORTS TO COMBAT PIRACY ON THE HIGH SEAS, May 5, 2009.
Most important in the short run, we are actively working with merchant shipping lines to help ensure that all vessels take appropriate measures to protect themselves from pirates. Here again, some statistics are instructive: when we look at patterns in pirate attacks in the region, we see that of the unsuccessful pirate attacks, a full 78% were thwarted simply by effective action taken by the crews of the ships under attack. Only in 22% of unsuccessful attacks were military or law enforcement interventions related to the positive outcome.
This highlights the fact that the single most effective short-term response to piracy will be working with merchant shipping lines to ensure that vessels in the region take appropriate security measures themselves. In so vast an expanse of ocean, and with so many other critical national security priorities, it is not possible for our military to prevent or intervene in each and every pirate attack. But with appropriate on-board security measures in place, the vast majority of pirate attacks can be thwarted without any need for military intervention.
Posted by: Don Hamrick at May 7, 2009 10:26 PM
Question: Did the authorities signpost the area as being within 1000 feet of the school? Bet they didn't.
Hope this bloke doesn't get charged, looks like he did all the right things, and it didn't end badly.
Seems like a silly law though. Unless you have a right to search on sight, without suspicion, a law like this won't stop soft-target school shootings, etc.
Posted by: Aussie Veteran at May 7, 2009 11:00 PM
Just think what would happen if he was prosecuted? The gang-bangers wouldn't take long to figure out that they could operate around schools with virtual impunity. Now that's an education you DON'T want your kids to get!!!!
Posted by: dave from Pittsburgh at May 8, 2009 01:01 AM
"Oral arguments in the 7th Circuit (same fed circuit as Wisconsin) are on May 26th in Chicago."
Posted by: jdberger at May 7, 2009 03:50 PM ...
"Have there been any moves for advocates to pack the courtroom like the CalGuns folks did for the Nordyke case?
200 so gun-advocates in suits demonstrates a constituency."
I don't know of any such moves. I plan to be there myself, though. Can you explain how attendance may or may not be important? If folks weighed in generally advocating the value attendance at this case, we might try to organize something.
Posted by: Carl in Chicago at May 8, 2009 07:20 AM
Lets see. How was the 100 ft determined? Is there scientific evidence that backs up the selection of that distance? Is it a random distance thrown out by someone? In my town, EVERY school is surrounded by homes and just about EVERY home has a myriad of guns in it so ALL those folks are in violation of the law.
As I've always stated, there is ABSOLUTELY NO evidence that the 2nd and subsequent amendments were meant to apply solely to the fed. This is made up crap. Madison's desires were repudiated before the thing really began so whatwever he thought, whatever he said is garbage and holds no authority over the intent or meaning of the the BoR as ratified. In the discussions, I've read ONLY the first (actaully third) amendment was federal only.
Tiochfaidh ar la!
Posted by: fwb at May 8, 2009 09:07 AM
1. The Supreme Court struck down the first federal gun-free school zone act in U.S. v. Lopez. It was the first time in decades that the court have struck down a federal law under the Commerce Clause. Wish they would do that more. After the New Deal, the court had adopted a much more expansive understanding of the Commerce Clause, connected with the "necessary and proper" clause, to uphold just about anything Congress could think of (for the most egregious expansion of federal power, check out Wickard v. Filburn). Anyhow, the court said in Lopez that Congress had failed to demonstrate any connection to commerce and there was no other constitutional power under which the law had been passed. After that, Congress passed the law again, this time adding some "findings" about guns passing through commerce and making the law apply to guns that had passed through interstate commerce. Feh.
2. I would be surprised if a state or federal court would read Heller as prohibiting gun-free school zones, incorporation or not. Heller said only that an outright ban on guns *in the home* was unconstitutional. It didn't say you had the right to carry them around outside.
3. I have not looked up the law, but I would be willing to bet there's an exception for people living within the 1000-foot zone, allowing them to have guns in their houses and carry them back and forth to the car, etc. Not the same thing as walking around with a gun in the school zone.
4. Unfortunately, legislatures don't need scientific evidence of anything to pass laws controlling something.
In any case, looks like they need some new legislation to clear this mess up. I don't care to take any bets which way the legislation will go...
5. It is without question that the Bill of Rights originally was understood to limit the power of only the federal government and not the states. The states were viewed as largely sovereign states, although "united". Each had its own constitution, its own court system and its own law. The people from the several states yielded to the federal government only so much power as set forth in the Constitution. The tenth reserves the power not delegated to the federal government to the people and their respective states. They would not have agreed to such restrictions on their own sovereign power. Certain provisions of the Bill of Rights would have rendered some of their own state constitutional provisions moot or potentially in conflict with the U.S. Constitution. Recall that the only reason the BoR is in there is because certain states refused to ratify the Constitution until those rights were enumerated - they distrusted yielding power to the federal government without there being an express statement of the rights that the federal government could not transgress. They already had their own state constitutions and law.
Take a look at the floor debates upon introduction of the 14th Amendment. It is completely clear that one original intent of the 14th Amendment was to make the Bill of Rights applicable to the states. Up until that time, the BoR had not been understood to apply to the states. If it did, there would have been no need for the 14th Amendment's rights and privileges clause and equal protection clause. This is not a novel or modern invention.
Unfortunately, the U.S. Supreme Court improperly, disingenuously and incorrectly gutted the privileges and immunities clause in the Slaughterhouse Cases, and then made up the bogus "selective incorporation" doctrine out of whole cloth. All of the BoR was incorporated by the 14th Amendment - at least it was meant to be.
Posted by: Bill at May 8, 2009 11:51 AM
200 gun advocates in suits put a face on the laws. It's easy to think of parties to a lawsuit as a faceless mass. When they have to be addressed eye to eye, even from a dias, their humanity needs to be acknowledged.
I'm not sure that it worked, but we did incorporate in the 9th Circuit and we're the first to do so. And the 9th isn't exactly "gun friendly".
At the very least it gives y'all a good excuse to meet one another and throw a nice little party. After arguments, we adjourned for cocktails and dinner. It was quite a time!
Posted by: jdberger at May 11, 2009 11:43 AM