HSLDA & the Gun Free School Zones
Act
NOTE: This issue has been resolved, and is only still posted
for historical interest.
***Please share this summary with other interested parties
via print, email, or any other format. However, please do not
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Dear Home Schoolers and Friends,
For the past several days we have been working on a summary
of the recent suit filed in federal court by HSLDA, requesting
that home schools not be considered private schools under the
Gun Free School Zones Act. We feel this action is unwarranted,
unnecessary, and potentially threatening to home schooling freedoms
everywhere.
Please read the summary below. We are hoping to build a national
coalition of organizations, support groups, individuals and others
who are opposed to this suit, and we invite you to consider joining
us.
Laura Derrick, Texas <LADerrick@aol.com>
Dan Johnson, Texas <two4god@texas.net>
Charlene Smith, Texas <csmith@n-link.com>
Linda Dobson, New York <ldobson@aldus.northnet.org>
Mark and Helen Hegener, Alaska <HomeEdMag@aol.com>
Janie Levine Hellyer, Washington <FmlyLrngEx@aol.com>
Doris Hohensee, New Hampshire <doris@mainstream.net>
Mary McCarthy, New Jersey <hslranj@hotmail.com>
HSLDA LAWYERS ASKING FOR FEDERAL JUDGMENT
THAT
HOME SCHOOLS ARE NOT PRIVATE SCHOOLS
The Home School Legal Defense Association has filed a complaint
in federal court requesting a declaratory judgment that "home
schools are NOT private schools."
On August 20, 1997, eleven months after passage of the federal
Gun-free School Zone Amendment, HSLDA is seeking judicial relief
for four fathers who legally home school their children under
Texas private school law and who also own and maintain firearms
in their residences for sporting purposes. HSLDA alleges that
their plaintiffs, along with home schools in 16 other states
where home schoolers operate "private schools," have
"no adequate remedy at law" as "it is unlawful
for any individual knowingly to possess a firearm . . . in a
school zone."
FINDING BACKGROUND INFORMATION
The complaint, 'Perez v. Reno,' can be obtained by
writing the Clerk of the US District Court for the Western District
of Texas, San Antonio Division. The action # is SA97CA1023. On
the net, the complaint can found at:
< http://www.n-link.com/~csmith/txhslda/perez.htm
> [Link dead.]
The Gun-free School Zone Act can be found in section
922 (q) of title 18, U.S.C. or at:
< http://www.law.cornell.edu/uscode/18/922.shtml
>
AN EXPLANATION OF THE PROBLEM
"Home schools" are not defined in either Texas or
federal statute. According to the Leeper decision, Texas home
schools are legally considered "private schools." By
means of this complaint, HSLDA is creating an opportunity for
the federal court to define "home schools," making
common law.
The obvious danger in being treated SEPARATELY from "private
schools" is that home schools may no longer be able to continue
enjoying EQUAL protection with "private schools." If
HSLDA gets its way, the protection afforded TX home schools under
the Leeper decision may be overridden by federal court opinion.
Would not federal and/or State regulation follow?
Under the Gun Free School Zone Act EXPLICIT RELIEF IS AVAILABLE
for any individual participating in a program "approved"
by a private school. There is no burden experienced by plaintiffs
operating as a PRIVATE home school within a private RESIDENCE.
The home school may approve any firearm program it sees fit to
authorize for the residence. In a private home school, "approval"
is de facto granted for any legitimate firearm program (i.e.,
hunting, target shooting, or personal protection) in which any
member of the family engages.
Were there truly a problem for private schools who wish to
use firearms, we most certainly would have heard numerous complaints
from several dozen private military academies across the country.
Private schools need not place firearms in the educational
program in order to "approve" their use on campus.
Not only can, e.g., private military academies approve the use
of firearms on campus, but, e.g., non-military private schools
can approve the use of their facilities by individuals or groups
for the purpose of, say, a gun show or exhibit. Students attending
the private school NEED NOT PARTICIPATE in the firearm activity
in order for the program to be "approved" by the school.
Correspondingly, a teacher who lives in a residence on a private
school campus would be required to abide by the rules of the
school with respect to firearms. Such a RESIDENCE is not the
private property of the individual, but part of the private SCHOOL
property. Judicial relief should not be expected in this case
as it would violate the private contractual agreement between
the school and employee.
Finally, persons living in a private residence within 1000
ft. of a gun-free school zone, which is NOT part of the school
grounds, have explicit relief under the Act.
Given the leeway allowed private schools (which home schools
in Texas legally are) to approve any firearm program at all,
it's clear that the plaintiffs have sufficient relief from any
alleged prohibition in their private residence. It would seem
that the court has grounds to throw the suit out of court for
insufficient standing: there is no demonstrable evidence of harm
to the plaintiffs.
Furthermore, HSLDA's complaint embodies a CONTRADICTION. On
the one hand the plaintiffs acknowledge their private school
status for the purpose of education. On the other hand they deny
it for the purpose of firearm possession.
THE COMPLAINT AFFECTS HOME SCHOOLS ACROSS
THE COUNTRY
Will the court dismiss the complaint, or will it decide to
recognize a difference between "home schools" and "private
schools?" That's the risk, and the repercussions would adversely
affect home schools not just in Texas, but AL, AK, CA, CT, DE,
IA, ID, IL, IN, KS, KY, MA, NB, NJ, OK and SD.
HSLDA asks that home schools be excluded from the meaning
of "private school" -- for the purpose of this Act
only. However, if an exclusion is made EVEN ONCE, what would
prevent any of the 17 states, or the federal government, from
citing this decision as reason to deny home schools their "private
school" status and use it as the gateway to regulate home
school programs? This one judicial decision could revoke the
"private school" status of nearly half the home schools
in this country without the vote of a single State representative.
This is a centralized power grab. Make no mistake about it
- a request for a declaratory judgment cannot be implemented
WITHOUT a FEDERAL definition of "home schools." Who
will enforce it: the DOE, or perhaps the BATF?
In the other 33 states, where home schools "are treated
as a SEPARATE educational category distinct from private school"
they LACK the necessary authority to approve a program for their
school to include firearms. This is particularly problematic
for those states wherein curriculum approval is necessary in
order to be permitted to initiate a home school program, such
as in New Hampshire, Maine and South Carolina. Even if "home
schools" are exempted in the statutory definition of "school
zones," eliminating any potential problem at the state level,
it's an open question whether federal enforcement will be a problem.
Only statutory home school programs operating under the supervision
of the public schools, i.e. complying with an explicit Home Education
statute, will have cause for alarm should they own any firearms.
The possession of loaded or unlocked firearms in a school zone
in these states is problematic. Under 922 (q)(2)(B)(ii) it appears
that a CCW (Concealed Carry Waiver: license to carry a loaded
firearm) may provide an exemption, if CCWs are easily obtainable
in the particular state.
THE BATF'S INVOLVEMENT
The proximate cause of HSLDA's complaint seems to be a letter
from BATF Director John Magaw to Senator Dan Coats. HSLDA claimed
this letter was private and confidential even though it appears
to be the basis of their complaint. HSLDA therefore refuses to
make it public. How could the remarks of a public official to
another public official acting in a official capacity be anything
but public information? A purported copy of Magaw's letter
can be found at:
< http://rampages.onramp.net/~gunowner/McGoo.htm >
[Link dead.]
The letter is brief and factual. Magaw wrote that "Should
a 'home' school be recognized by State law as a 'school' as defined
by section 921(a)(26), the possession of a firearm on the grounds
of such school or within 1,000 feet of school grounds would violate
the law." However, even the BATF director notes that "there
are a number of exceptions to the prohibition" of firearm
possession, including an exception for "firearms possessed
on private property."
Unfortunately, in order for private property to be exempt
from the prohibition it must NOT be part of school grounds. For
statutory home schools, private property and the school grounds
are one and the same.
Looking at section 921 of federal code, a "school zone"
in defined as "the grounds of . . . or within a distance
of 1,000 feet from the grounds of a public, parochial or private
school." The term "school" is defined as "a
school which provides elementary or secondary education, as determined
under State law."
It is unclear whether Magaw is referring to "private
schools" as HSLDA alleges, or statutory "home schools."
Perhaps Magaw is unfamiliar with the difference between "private"
and "statutory" home schools.
If HSLDA were so concerned that the BATF wanted to prosecute
home schools for firearms possession, why would they grant federal
court an opportunity to define, and thus regulate, home schools
on the federal level?
In any case, the primary effect of the firearms prohibition
of this Act, except for statutory home schools, is to federally
regulate INTRASTATE transportation of firearms. Either the firearm
must be unloaded in a locked container, or a CCW with a background
check is necessary, in order to override the prohibition when
transporting firearms within a designated gun-free school zone.
In the case of statutory "home schools" the prohibition
goes further, banning loaded or unlocked POSSESSION of firearms
on private property since the RESIDENCE is part of the SCHOOL
grounds. Under such conditions, how is self-defense possible?
Statutory home schools are not treated equitably with respect
to private schools.
WHO STANDS TO BENEFIT FROM THIS COMPLAINT?
Why did HSLDA lawyers not challenge the Act in a statutory
home school state? Why did they pick Texas for their complaint?
Is an oversight of this magnitude possible by competent lawyers,
or is this deliberate?
There is certainly significant government interest in REMOVING
the disparity in treatment between home schoolers in "private
school states" versus home schoolers in "home school
states." The government can not regulate "private schools,"
only statutory "home schools." Not only would the government's
interests be furthered by removing this distinction, so would
the pecuniary interests of HSLDA as statutory home schools are
continually in need of legal assistance when operating under
State regulation.
If home schools are NOT private, then they are open game for
State regulation. There is no middle ground between what is "private"
and what is not. Let us not pretend that statutory home schools
are some sort of quasi-private entity, such as the U.S. Post
Office. There is no such thing as a private, yet State regulated,
home school. That's an oxymoron.
What's more, is it appropriate for a federal court to decide
this critical issue, by-passing 17 State legislatures?
The only relief for home schoolers across the country would
be for HSLDA to withdraw this complaint immediately. HSLDA is
not doing a service for home schools, nor gunowners, by submitting
this complaint.
THE EMERGING PATTERN
Our concern is the pattern that's emerging. First, HSLDA inserts
clauses in federal statute "exempting home schools"
without defining the term "home school" (which by the
way means these clauses have no legal effect unless and until
common law exists). Next, HSLDA attempts to drive the process
of defining "home school" in federal common law, there
having been no prosecutions under the statutory language they
created. Having defined "home schools," the final step
will be regulation, enacting home school statutes in every state.
Whether or not State regulation is HSLDA's intent, it will
be the net result. You can't regulate something without defining
it. Home schools are safe from regulation as long as they remain
under the protective umbrella of "private schools."
WHAT CAN BE DONE?
If home schools are EXCLUDED from the definition of "private
schools" as requested by HSLDA, regulation will follow.
HSLDA has a privileged tax exempt status because they nominally
SERVE the interests of ALL home schoolers. Whether you are a
member or not, notify HSLDA that you want them to withdraw the
complaint. Please contact HSLDA and tell them to protect YOUR
interests.
Home School Legal Defense Association
PO Box 3000
Purcellville VA 20134
Phone: (540) 338-5600
Fax: (540) 338-2733
Email: Scott Somerville <Scott@hslda.org> [Issue over.
Do not email Scott any more about this topic.]
Contact any home schoolers you know who may not be aware of
what is happening and ask them to contact HSLDA. Help build and
maintain a network of communication among the home schoolers
you know to keep everyone informed.
Home schoolers might also contact the plaintiffs directly.
Politely let them know that you're concerned about the risk to
your home schooling freedom. They may not understand the issue
or have all the facts.
The plaintiffs are Gavino Perez, Michael Putnam, Weldon Lister
and Charles Dunn, all of San Antonio, Texas.
***Please share this summary with other interested parties
via print, email, or any other format. However, please do not
change or delete wording, but reproduce this summary in its entirety.***
[end of file]
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