Federal Law on Guns in Schools

Posted on May 21, 2012

See our Guns in Schools policy summary for a comprehensive discussion of this issue.

Recognizing that guns have no place in our nation’s schools, the federal government has taken steps to make our elementary and secondary schools safer from gun violence by adopting: 1) The Gun-Free School Zones Act; and 2) The Gun-Free Schools Act. Establishing gun-free school zones – that prohibit possession of a gun within a school, on school property, or within a set distance of school property – helps to secure schools from gun-related violence and crime.

The Gun-Free School Zones Act

The Gun-Free School Zones Act (GFSZA) prohibits any person from knowingly possessing a firearm that has moved in or otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone.1 The GFSZA also prohibits any person from knowingly, or with reckless disregard for the safety of another, discharging or attempting to discharge a firearm that has moved in or otherwise affects interstate or foreign commerce at a place the person knows is a school zone.2 The GFSZA defines “school zone” as: 1) in, or on the grounds of, a public, parochial or private school; or 2) within a distance of 1,000 feet from the grounds of a public, parochial or private school.3

Exceptions to the possession prohibition include:

  • Firearm possessors licensed by the state or locality to possess the gun, whose law requires that before the person obtains a license, state or local law enforcement verify that the person is qualified to receive the license;4 or
  • Where the firearm is:
    • Unloaded and in a locked container or locked firearms rack on a motor vehicle;5 or
    • Unloaded and possessed while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.6

Exceptions to both the possession and discharge bans include:

  • Where the firearm is possessed for use in a program approved by a school held in the school zone, or in accordance with a contract entered into between a school and the individual or an employer of the individual;7 or
  • Where the firearm is possessed or used by a law enforcement officer acting in his or her official capacity.8

The GFSZA originally was enacted as part of the Crime Control Act of 1990. The GFSZA was eventually challenged as an unconstitutional exercise of congressional authority under the Commerce Clause of the U.S. Constitution. In United States v. Lopez, the Supreme Court struck down the law on the grounds that the Act regulated neither commercial nor interstate activity.9

Following the ruling in Lopez, Congress re-enacted the GFSZA in 1996, correcting the statute’s defects identified by the Supreme Court in Lopez as violative of the Commerce Clause. The original GFSZA contained the same prohibitions as the 1996 revision, except the newer version added language to apply the law to any firearm “that has moved in or that otherwise affects interstate or foreign commerce.”10 Challenges to the new statute have been unsuccessful.11

The Gun-Free Schools Act

The Gun-Free Schools Act (GFSA) imposes a federal requirement on school districts to adopt a gun-free schools position that requires zero-tolerance policies and minimum one-year expulsions from school for gun possession in exchange for federal funds for district schools.

The original GFSA dates to 1994, when the “Gun-Free Schools Act of 1994” was enacted under the Clinton Administration as a response to increasing levels of gun violence in schools.12 Unlike the GFSZA, which applies to any person possessing a firearm in the defined prohibited areas, the GFSA focuses on student behavior, penalizing students in an attempt to deter them from bringing firearms to school or possessing them at school. The 1994 GFSA required local educational agencies to have in effect a policy that required the expulsion for a period of not less than one year of any student who brought a weapon, including a firearm, to school.13

The GFSA was repealed and re-enacted as part of the “No Child Left Behind” Act (NCLBA).14 The revised GFSA, effective January 8, 2002, requires that states receiving federal funds under the Elementary and Secondary Education Act of 1965 (as amended by the NCLBA) have laws requiring local educational agencies to adopt a policy that expels students for a minimum period of one year for bringing a firearm to school or possessing a firearm at school.15 The amended GFSA also defines the term “school” more specifically that the earlier act, broadening the term to include school-sponsored events and activities, even those held off school grounds.16 The updated GFSA also replaces the vague “weapon” with the statutorily-defined “firearm” as the proscribed instrument.17

The strict zero-tolerance policy associated with the GFSA is softened somewhat under the newer version by allowing states to permit the chief administering officer of a local educational agency to modify an expulsion for a student, in writing, on a case-by-case basis.18 Furthermore, the GFSA provides that a state may allow a local educational agency that has expelled a student from the student’s regular school setting to provide an alternative educational setting.19

The GFSA requires that each local educational agency requesting financial assistance from the state educational agency charged with receiving and distributing federal funds to provide to the state agency, on an annual basis, information that includes:

  • An assurance that the local educational agency is in compliance with the state expulsion law; and
  • A description of the circumstances surrounding any expulsions imposed under the state expulsion law, including:
    • The name of the school concerned;
    • The number of students expelled from such school; and
    •  The type of firearms concerned.20

The GFSA also requires local educational agencies to adopt policies requiring referral to the criminal justice or juvenile delinquency system of any student who brings a firearm to a school served by such agency.21 For these purposes, “school” means a school that provides elementary or secondary education pursuant the laws of the state.22

Finally, the GFSA provides narrow exceptions to these prohibitions, permitting firearm possession where the gun is lawfully stored inside a locked vehicle on school property, or where the gun is possessed for an activity approved and authorized by the local educational agency, if the agency has adopted appropriate safeguards to ensure student safety.23 To date, the GFSA has not been challenged.

  1. 18 U.S.C. § 922(q)(2)(A). []
  2. 18 U.S.C. § 922(q)(3)(A). []
  3. 18 U.S.C. § 921(a)(25). []
  4. 18 U.S.C. § 922(q)(2)(B)(ii). []
  5. 18 U.S.C. § 922(q)(2)(B)(iii). []
  6. 18 U.S.C. § 922(q)(2)(B)(vii). []
  7. 18 U.S.C. § 922(q)(2)(B)(iv), (v); § 922(q)(3)(B)(ii), (iii). []
  8. 18 U.S.C. § 922(q)(2)(B)(6); § 922(q)(3)(B)(iv). []
  9. 514 U.S. 549 (1995). In Lopez, a student was convicted of violating the GFSZA for possessing a handgun and ammunition at school. Respondent’s conviction was reversed on appeal. In upholding the reversal, the Supreme Court held the GFSZA was invalid because it was beyond the power of Congress under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. The Court found that the GFSZA had nothing to do with commerce or any economic activity, and thus could not be sustained as a regulation of activity arising out of or connected with a commercial transaction, which when viewed in the aggregate, substantially affected interstate commerce. In reaching this conclusion, the Court emphasized that Congress’ authority under the Commerce Clause extended to only three categories of activity: 1) “the use of the channels of interstate commerce”; 2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and 3) “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59. See also Lopez, 514 U.S. at 558-563. []
  10. 18 U.S.C. § 922(q)(2)(A), (3)(A). []
  11. See, e.g., United States v. Danks, 221 F.3d 1037, 1038 (8th Cir., 1999) (upholding the statute’s constitutionality because the addition to 18 U.S.C. § 922(q) of the language “that has moved in or that otherwise affects interstate or foreign commerce” adds an interstate-commerce requirement to the statute that ensures through case-by-case inquiry that the firearm in question affects interstate commerce); and United States v. Dorsey, 418 F.3d 1038, 1045-46 (9th Cir. 2005), rev’d on other grounds (unlike the earlier version of the Gun-Free School Zones Act that the Lopez Court found unconstitutional, the new version of 18 U.S.C. § 922(q) resolves the prior statute’s shortcomings because it incorporates a jurisdictional element that ensures, through a case-by-case inquiry, that the gun possession in question affects interstate commerce). []
  12. Avarita L. Hanson, Have Zero Tolerance School Discipline Policies Turned into a Nightmare? The American Dream’s Promise of Equal Educational Opportunity Grounded in Brown v. Board of Education, 9 U.C. Davis J. Juv. L. & Pol’y 289, 303 (Summer, 2005) (discussing the history of the Gun-Free Schools Act of 1990 and subsequent Acts). []
  13. Id. at 303-04. []
  14. 20 U.S.C. § 7151. []
  15. 20 U.S.C. § 7151(b)(1). []
  16. Hanson, supra, at 305 (“school” is defined as any setting that is under the control and supervision of the local educational agency for the purpose of student activities approved and authorized by the local educational agency, per 20 U.S.C. § 7151(f) ). []
  17. Id. []
  18. 20 U.S.C. § 7151(b)(1). []
  19. 20 U.S.C. § 7151(b)(2). []
  20. 20 U.S.C. §§ 7151(d), (e). []
  21. 20 U.S.C. § 7151(h)(1). []
  22. 18 U.S.C. § 921(a)(26). []
  23. 20 U.S.C. § 7151(g). []