As tragedy takes its toll at one school after another, we’ve been getting questions from education leaders about guns at school. This article summarizes the current law as it relates to an individual’s right to possess weapons, including firearms, on school property. While a district may prohibit a person from carrying a firearm on school property, this authority is not unlimited, and an exception may be required where individuals have a valid Pennsylvania license to carry. To date, however, this issue has not been thoroughly vetted by the courts.
Current Federal and State Laws
Two federal laws prohibit weapons in schools, on school property, or in school buses. The Gun-Free School Zone Act is a rarely enforced federal law that prohibits the possession in a school zone of any fire-arm that has moved in interstate commerce or otherwise affects interstate or foreign commerce. This law expressly states that it does NOT prohibit a properly licensed person from carrying on school property. A second federal law, the Gun-Fee Schools Act, prohibits student possession of guns in schools and requires local education agencies to adopt policies that require at least a one year suspension from school for any student who brings to school or possesses a gun at school.
More frequently, state laws that correspond with the federal prohibitions are used to restrict the possession of weapons on school property. In Pennsylvania, Section 912 of the Crimes Code provides that a person commits a misdemeanor of the first degree if he possesses a weapon in the building of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, including a school administration building.
“Weapon” is defined as “any knife, cutting instrument, cutting tool, nun-chuck stick, firearm, shotgun, rifle and any other tool or implement capable of inflicting serious bodily injury.
Generally, there are two potential legal challenges to a ban of weapons on school property:
First, there is the exception to Section 912(a), which provides that it shall be a defense that the weapon is possessed for “other lawful purpose”. This exception gives rise to the argument that “for other lawful purpose” includes a person carrying a licensed firearm . This argument is supported by recent case law, specifically Commonwealth v. Goslin, 156 A.3d 314 (Pa. Super. 2017), in which the Court adopted a broad interpretation of Section 912(c). In Goslin, the Superior Court of Pennsylvania held that where the defendant possessed a pocketknife on school grounds for “other lawful purpose”, regardless of whether it is school related, he could not be convicted of possession of a weapon on school property. In its written decision, the Court states as follows:
Although we are concerned about individuals possessing weapons on school property, we are bound by the broad defense that the legislature has provided defendants in such cases. We would urge the legislature to review this language to ensure that the legislature’s view has not changed since it enacted this defense in 1980.
This means that until the legislature acts to more clearly define what it intends to be an “other lawful purpose”, the courts are bound to interpret that exemption broadly which may result in a determination that “other lawful purpose” includes a person carrying a licensed firearm.
The second potential challenge to a weapons ban on school property could be based upon the constitutional right to bear arms protected by the Second Amendment of the United States Constitution. This argument is not likely to succeed considering the special legal recognition that schools should be safe places for students and, likely, a ban on firearms would not be determined to be unconstitutional.
Also suggesting that the District is free to regulate the possession of firearms on school property, even by a licensed individual, is the Pennsylvania Uniform Firearms Act. Section 6120 of that Act prohibits a “county, municipality or township” from regulating the “lawful ownership, possession, transfer or transportation of firearms . . .”. Significantly, this prohibition does not extend to school districts and nor is there any similar legislation that does so extend.
Moreover, the restrictions on possession of firearms in other venues, such as courthouses, airports and certain government buildings, are a relatively safe bet that a Second Amendment challenge will not succeed against a school ban. Further, there is nothing in the Pennsylvania Uniform Firearms Act that conveys any special privileges that could conflict with a school ban.
With regard to federal law, the current administration has indicated intent to end gun-free schools zones and at the congressional level, various bills have been introduced to modify and/or repeal existing laws. To date, none of these proposals seem to have gained much traction.
On the State level, Senate Bill 383 is a proposed amendment the Public School Code of 1949 authorizing School Directors to allow trained teachers and other school employees to carry firearms in schools “providing for protection and defense of pupils.” While this proposed legislation passed in the Senate in June of 2017, its future is uncertain as it is reported that there are no immediate plans for the House to consider it, and Governor Wolfe intends to veto the bill.
Bottom Line for Schools
While it may be difficult to secure the cooperation of law enforcement to pursue criminal prosecution under Section 912, that issue is distinct from a ban on school property. If it is the District’s will to prohibit firearms on school property, a carefully drawn policy can be an effective tool in enforcing that will. It is within the District’s discretion to prohibit the possession of firearms on school property and to do so is not a violation of the Second Amendment.
One option is to maintain the District’s current policy and to train staff to recognize and report suspicious conduct including anyone suspected to be carrying a firearm. The policy can also require that persons carrying a firearm disclose that fact. Even if a valid license is produced, a person can be asked to voluntarily secure their firearm off of school property or in a gun safe. If a person with a valid license refuses to disarm, they may be escorted by security. If a valid license cannot be produced, the police should be summoned immediately.
If you have any questions about guns in school, please contact your legal counsel or one of the Education Law Practice attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.