The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.
School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry arms for self-defense, even though the particular State sought not to disarm non-residents in those areas. This Article concludes the ATF's interpretation, which as an informal interpretation of a criminal statute is not entitled to judicial deference, raises substantial Federalism concerns and is unsupported.
The interpretation proffered by the ATF contemplates Federal regulation of the manner in which a State opts to license firearms possession. Assorted authority holds that a Federal statute should not be construed so as restrict the manner in which a State elects to delegate its decision-making authority, unless the language clearly so provides. That principle has been applied to restrictions on a State's delegation to its subdivisions, and it has been applied to a State's delegation to third parties.
The language of the GFSZA is not sufficiently clear in prohibiting licensure through reciprocity to meet the applicable standard. In a variety of contexts, the term "licensed by," followed by reference to a State or a State instrumentality, is used to comprehend licensure through reciprocity (or other licensure not involving licensee-specific action by the licensing authority). Moreover, one might contrast the ATF's approach to the outcome in King v. Burwell, where the Supreme Court holds an exchange a State elects not to create is nevertheless "established by the State."
Royce de R. Barondes,
Federalism Implications of Non-Recognition of Licensure Reciprocity Under the Gun-Free School Zones Act, 32 Journal of Law & Politics 139
Available at: https://scholarship.law.missouri.edu/facpubs/694