The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Restriction on Gun Possession Within 1000 Feet of School Constitutional, at Least When Possessor Is "Behaving Erratically and Menacingly"
The Fifth Circuit hands down a highly fact-specific decision in a Second Amendment challenge to a federal law.
From U.S. v. Allam, decided today by Fifth Circuit Judge Cory Wilson, joined by Judges James Graves and Stephen Higginson:
In August 2022, Allam embarked on a road trip in his father's SUV from his home in Brooklyn, New York. By early January 2023, he pulled into Beaumont, Texas, via a circuitous, cross-country route. By the time he arrived in Texas, he possessed an AR-15-style rifle that he had purchased along the way in Pennsylvania. Since leaving New York, he had also been living in the SUV; he continued to do so while he was in Texas.
In Beaumont, Allam began parking his SUV for extended periods next to St. Anthony Cathedral Basilica School, a private school for students from pre-kindergarten through 8th grade. The Beaumont Police Department (BPD) was first alerted to his presence near the school on January 5. When approached by a BPD officer and asked if he had any guns or weapons, Allam replied that he did not. After being advised to park elsewhere, Allam was sighted in the following days near the Beaumont Civic Center and in front of a nearby Jewish synagogue for extended periods, prompting synagogue members to call BPD repeatedly.
Allam returned to the vicinity of St. Anthony around January 22 and remained parked next to the school almost continually, causing "fear and concern" among the school community. Attempts by teachers, BPD, and members of the public to get Allam to leave were unsuccessful. Due to Allam's presence, the school "stopped having any type of outside … activity," including "softball[,] … cheerlead[ing,] … [and] recess," and the school prohibited students from "walking between classes outside."
On Sunday afternoon, January 29, a school parent confronted Allam, who was sitting in his SUV parked adjacent to the school, and asked him to leave the area. Allam responded that he had a "mission" and that no one would ever see him again after Monday. Alarmed by Allam's ominous statement and based on a strong suspicion that Allam possessed a gun, the parent immediately prompted BPD to post an officer near Allam's SUV. Later that Sunday, when Allam began to drive the SUV from its parked location, the officer stopped him for various alleged traffic violations. When Allam refused to comply with the officer's instructions, he was arrested. In Allam's car, the police discovered the rifle, 150 rounds of ammunition, and a loaded thirty-round magazine.
{In addition, the police found "a series of random notes in Allam's phones, several of which contained … descriptions of violent acts, including murder, torture, maiming, hate crimes, and rape … pointed seemingly towards the President of the United States[,] … the United States Government, and its citizens (including women and children)." The notes referenced "various Islamic extremists, terrorists, and dictators in the Middle East." Allam's phone also contained videos and images that showed "dead and dismembered cats," "Allam gutting cats and pulling out their entrails with his hands," and Allam "lighting [a] cat on fire." Also in the car were "children's clothing," marijuana residue, and cocaine.}
When Allam was arrested, he was parked … "… a school-zone sign approximately 40 feet across from the school's property line, adjacent to the school's playground" …. From that vantage point, Allam had a "clear view of the … crosswalk that students use[d] to cross Forsythe Street on their way to the off-grounds basilica."
Allam pleaded guilty to violating 18 U.S.C. § 922(q)(2)(A),
It shall be unlawful for any individual 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 [i.e., is on the grounds of a school or within 1000 feet of a school]…..
[except] (i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the [relevant] State … [which] requires that, before an individual obtains such a license, the law enforcement authorities … verify that the individual is qualified under law to receive the license; [or]
(iii) [when the firearm] is— (I) not loaded; and (II) in a locked container ….}
Allam appealed, arguing the statute was constitutional as applied to him, but the court disagreed:
With some significant exceptions, § 922(q)(2)(A) broadly disarms individuals "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds" of a school. But in evaluating Allam's as-applied challenge, which is "a narrower consideration" than weighing a facial attack, we "go beyond the language of the [statute]" and analyze its "application to the particular circumstances of an individual." …
Our analysis of Allam's Second Amendment challenge to § 922(q)(2)(A) is driven by the "concrete facts that properly underlie an as-applied challenge to a statute." To recap: For many days leading up to his arrest, Allam exhibited disturbing behavior in several locations around Beaumont—in particular, alarming the members of the St. Anthony school community, who suspected (correctly) that he possessed a gun. His presence was conspicuous enough that people affiliated with the school repeatedly called the police—as did members of the local synagogue when he parked nearby. Despite repeated admonishments from BPD, parents, and community members, Allam's behavior disrupted the school's day-to-day routine over the course of at least several days.
His threatening deportment was capped by his cryptic Sunday-afternoon statement about a "mission" the following Monday, in response to being confronted yet again by a school parent. And just before Allam was arrested—with a rifle, 150 rounds of ammunition, and a loaded thirty-round magazine—he was parked across the street, about 40 feet away, from the school campus. Mindful that our inquiry is bounded by these "concrete facts," id., we turn to applying Bruen's framework….
The Statute of Northampton, first enacted in 1328 in England, provided that, with some exceptions, Englishmen could not "come before the King's Justices, or other of the King's Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King's pleasure."
The Government offers King Henry VIII's version of the Statute of Northampton, applicable to Wales and which additionally prohibited arms within two miles of a court, as an analogous historical example of a "buffer zone" law. But to assess whether the Statute of Northampton, as a location-based restriction, is "relevantly similar" to § 922(q)(2)(A), we must look beyond the law's text because, in practice, the Statute was not strictly enforced as written. According to scholarship cited by the Supreme Court in Bruen, "[a]n indictment or presentment for violation of the Statute of Northampton had to specify that the arms carrying was [i]n quorandam de populo terror—to the terror of the people." David B. Kopel & Joseph Greenlee, The 'Sensitive Places' Doctrine: Locational Limits on the Right to Bear Arms, 13 Charleston L. Rev. 203, 217 (2018); see also Bruen ("[N]o wearing of Arms is within the meaning of [the Statute], unless it be accompanied with such Circumstances as are apt to terrify the People." (quoting 1 Pleas of the Crown 136)). "[B]y the time of American independence[,] … the old Statute of Northampton … was only applicable to carrying for the purpose of terrorizing other people, and not to carrying for legitimate self-defense." Thus, "the Statute … was no obstacle to public carry for self-defense in the decades leading to the founding."
Even so, though perhaps not a "dead ringer" or "historical twin" of modern "buffer zone" restrictions on firearm possession, the Statute of Northampton is nonetheless of a type of historical location-based regulation relevantly similar to § 922(q)(2)(A)'s application to Allam: the so-called "going armed laws," which the Supreme Court has addressed at length. These laws prohibited "riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land," and were "incorporated into American jurisprudence through the common law." "As during the colonial and founding periods, the common-law offenses of 'affray' or going armed 'to the terror of the people' continued to impose some limits on firearm carry in the antebellum period."
"Why and how" the Statute of Northampton and going-armed laws "burden[ed] the right" to carry firearms, mirror the operation of § 922(q)(2)(A) here, suggesting that "applying [§ 922(q)(2)(A)] to [Allam] is consistent with this Nation's historical tradition of firearm regulation." First, why: Section 922(q) was enacted in response to "concern about violent crime and gun violence," the possibility of "parents … declin[ing] to send their children to school for the same reason," and the "occurrence of violent crime in school zones." These aims are consistent with a longstanding tradition of restricting those who carry firearms "to the terror of people" and those who pose a "clear threat of physical violence to another." Next, how: Section 922(q)(2)(A) delimits schools and buffer zones around them as areas in which firearms may not be carried, subject to significant enumerated exceptions that materially ameliorate the restriction of the right. This roughly maps with how the Statute of Northampton's various location-based restrictions generally operated in practice, as well as the behavior the going-armed laws proscribed. As applied to Allam, then, § 922(q)(2)(A) is relevantly similar to the Statute of Northampton and, more broadly, the going-armed laws of which the Statute is one example.
The other historical evidence proffered by the Government as consistent with modern location-based firearm restrictions is more attenuated. An initial caveat is that "[p]roceeding past the bounds of founding-era analogues … is risky under Bruen, and courts must 'guard against giving postenactment history more weight than it can rightly bear.'" Another is that sporadic regulations, in only a few jurisdictions, likely are insufficient to substantiate a "regulatory tradition." Yet the forerunners the Government adduces are at least aligned with the conclusion that § 922(q)(2)(A)'s application to Allam is "consistent with the principles that underpin our regulatory tradition."
For example, the Government points to early firearm regulations in educational settings as a category of "relevantly similar" firearm restrictions. In the decades following the ratification of the Second Amendment, several colleges banned students from possessing weapons on campus, including the University of Georgia (1810), the University of Virginia (1824), and the University of North Carolina (1838). However, these rules were only limited prohibitions, specifically disarming students but not the public at large. And none of these regulations applied off campus. So they were not really "buffer zone" laws at all, such that, even if campus or student safety was "why" these restrictions constrained firearm possession, "how" they did so is somewhat distinct from § 922(q)(2)(A)'s reach.
The Government also offers later 19th-century statutes from Texas (1871) and Missouri (1883) that more broadly prohibited carrying firearms in educational settings. But like the earlier college restrictions, these statutes restricted firearm carry inside—rather than around—schools. The closest analogue to our case, at least of those proffered by the Government, of this genre of laws is an 1879 Missouri statute that prohibited people from discharging any gun near a school.
Taken together, and discounting for Bruen's caveats about over-weighing scattered or postenactment regulations (here, both limitations apply), these historical firearm restrictions in educational settings perhaps hint at "a tradition of public-carry regulation." They at least buttress our conclusion that § 922(q)(2)(A) hurdles Bruen's test as applied here, i.e., that carrying firearms in a manner that poses a "clear threat of physical violence to another," specifically to school children, could constitutionally be restricted around schools.
Finally, the Government provides several examples of laws demarking buffer zones restricting firearms around polling places. At the time of the founding, to "prevent any violence or force being used at the said elections," Delaware's constitution prohibited any individual from "com[ing] armed" to any polling place on election day or "any battalion or company" from remaining "within one mile" of a polling place during the 24 hours before the polls opened and until 24 hours after the polls closed. And in the late-19th century, as a reaction to efforts by "[a]rmed terrorist organizations … to prevent blacks or white Republicans from voting," a few states prohibited the carrying of firearms on election day around polling places …. However, these buffer zones were time-restricted to certain election-related days. And only Delaware's polling buffer zone dates to the founding era. So even assuming the "why" of these laws mirror the purposes behind § 922(q)(2)(A), "how" they operated is materially more limited than how § 922(q)(2)(A) applied to Allam—he was arrested on a Sunday, presumably when no school-related activities were taking place. Moreover, these regulations suffer from the same limitations as the 19th century school regulations discussed supra: regulations from only four states at best present weak evidence of "a tradition of public-carry regulation." Still, like the educational restrictions, and at least one version of the Statute of Northampton, these laws offer some evidence of the permissibility of limited buffer zones for the purpose of preventing threats of physical violence.
And the court rejected Allam's argument about "the lack of a conclusive historical analogue to § 922(q)(2)(A)'s 1,000-foot buffer zone," because it was focusing on the law as applied to the particular facts in this case:
We need not—and do not—fix how far a buffer zone may stretch before it runs afoul of the Second Amendment to decide Allam's as-applied claim. Section 922(q)(2)(A)'s buffer zone needed to do very little work here, if any. Allam had camped out only 40 feet from school grounds. His SUV was parked on a street bordering campus—adjacent to school zone lighting and signage—at a location where students crossed routinely to get to the off-campus basilica. He was also behaving erratically and menacingly, so much so that people repeatedly called the police, and St. Anthony changed its students' routines and traffic patterns. As applied here, § 922(q)(2)(A) is "relevantly similar" to the Statute of Northampton and going-armed laws and the (limited) historical examples of firearm restrictions in educational settings and buffer zones around polling places, which corroborate the constitutionality of disarming a visibly threatening individual as near a school as Allam was.
Note that, though an earlier version of the federal statute was struck down in U.S. v. Lopez (1995) as exceeding federal power, Congress reenacted the law with a jurisdictional hook that federal courts view as sufficient to provide Congressional authority (though it wouldn't of course defeat a Second Amendment defense): The law applies only when the firearm "has moved in or that otherwise affects interstate or foreign commerce."
Mahogane Denea Reed argued on behalf of the government.
