Litigation Highlight: Fifth Circuit Upholds Buffer Zone in Gun-Free School Zones Act

On June 16, a panel of the Fifth Circuit Court of Appeals rejected a Second Amendment challenge to the federal ban on possessing firearms within a school zone.  The case was an important test of Bruen’s historical standard, albeit one where the unique factual circumstances likely dictated the outcome.  And the decision is almost certainly not the last word on whether and how gun-free buffer zones around sensitive locations are consistent with historical regulatory practice.

Ahmed Allam raised alarm when he parked his SUV next to a Texas K-8 private school for several consecutive weeks in January 2023.  When questioned about his continued presence near the school, “Allam responded that he had a ‘mission’ and that no one would ever see him again after” it was complete.  A police officer was posted to monitor Allam and, when Allam began to drive away, the officer pulled Allam over for traffic violations.  The officer ultimately found a rifle, 150 rounds of ammunition, and a 30-round magazine in the car.  Allam was charged with possessing a firearm in a school zone in violation of federal law: 18 U.S.C. § 922(q)(2)(A), part of the Gun-Free School Zones Act of 1990, makes it unlawful to possess a firearm in “a school zone,” which is defined to include any location “within a distance of 1,000 feet from the grounds of a public, parochial, or private school.”

Allam moved to dismiss his indictment under the Second Amendment.  The district court denied that motion, noting that school shootings are an “unprecedented societal concern” and that “late nineteenth-century prohibitions on possessing firearms in schools and within the vicinity of polling places” were sufficient historical analogues under Bruen.

On appeal, the Fifth Circuit first explained that Allam’s challenge was an as-applied challenge (Allam initially challenged the prohibition both on its face and as applied to him, but he abandoned the facial challenge before the appellate court).  The panel found that “Allam clears the first step of Bruen’s two-part test because the Second Amendment’s plain text covers his conduct, keeping a rifle in his car ostensibly for self-defense.” 

The court then proceeded to the historical tradition analysis, asking whether applying the Gun-Free School Zone Act’s 1,000-foot buffer zone to Allam’s conduct was consistent with the history of American firearms regulation.  The panel turned first to the 1328 Statute of Northampton, a medieval English law that banned “go[ing or] rid[ing] armed by night []or by day, in fairs, markets, []or in the presence of the justices or other ministers.”  The panel noted that the Supreme Court held in Bruen that the Statute of Northampton only proscribed “terrorizing” behavior—in a similar way as the “going armed,” or affray, statutes enacted in early America as part of a consistent regulatory tradition.  Given Allam’s history of concerning behavior predating his arrest, the panel found these laws appropriate analogues that supported applying the Gun-Free School Zones Act to Allam.  This application was, the court said, “consistent with a longstanding tradition of restricting those who carry firearms ‘to the terror of the people’ and those who pose a ‘clear threat of physical violence to another.’”

Other historical evidence offered by the government, the panel said, was “more attenuated.”  The government also pointed to historical campus gun restrictions, state laws from the late 1800s that restricted gun carrying in educational institutions, and laws that placed gun-free buffer zones around polling places and election sites.  The campus and school restrictions, the court said, didn’t include buffer zones but rather applied only to core academic buildings and locations.  As to polling place restrictions, there was insufficient evidence of a broad historical tradition and the laws that did exist were time-limited and applied only during elections.

Finally, the panel emphasized that Allam’s case was unique given his very close proximity to the school and his erratic behavior.  Thus, the court rejected Allam’s as-applied constitutional challenge and upheld his conviction.

Here, I’d like to briefly examine the buffer zone question under Bruen.  The Fifth Circuit panel ultimately found no need to determine whether 1,000 feet is a permissible buffer zone around a school in which guns can be banned.  On one hand, 1,000 feet is pretty far (approximately three football fields), and overlapping school buffer zones—especially in urban areas—may well place a substantial burden on lawful gun carrying.  Allam, however, was parked much closer than that (perhaps as close as 40-50 feet from the school in question) and had been acting strangely for weeks.  Thus, “Section 922(q)(2)(A)’s buffer zone needed to do very little work here, if any.” 

Since Allam abandoned his facial challenge on appeal, the only question was whether the law was constitutional as applied to his specific situation. Yet future as-applied analysis of sensitive location buffer zones under Bruen should account for firearm lethality at long ranges.  Technological development that vastly improved long-range accuracy occurred primarily in the mid-to-late 1800s—a divisive time period in post-Bruen Second Amendment litigation.  As Brian DeLay has chronicled, “[t]he technological and manufacturing advances that first made repeat-fire pistols practical weapons also enabled breakthroughs in long arms” during that time period.  Guns with grooved, or “rifled,” bores were popularized then (especially during and immediately after the Civil War) and were much more accurate over longer distances than prior, commonly-owned long guns.  As one historical account describes, “[w]here smooth-bore muskets were accurate to less than 100 yards and needed to be fired in volleys to have any effect, the new rifles could hit man-sized targets out to 800 yards.”  The 1,000-foot school zone buffer equates to 333 yards.

A historical examination of buffer-zone restrictions should weigh these technological advances as well as the time it would have taken legislatures to adapt.  The Fifth Circuit expressed some skepticism in Allam about the relevance of later-in-time (post-Reconstruction) restrictions and quoted Bruen’s instruction that, “because post-Civil War discussions of the right to keep and bear arms ‘took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.”  An amicus brief filed by gun-rights groups in the case similarly argued that “Reconstruction Era evidence is relevant only if it provides confirmation of what had been established before.”  And the Fifth Circuit has, in other decisions involving Second Amendment challenges to federal law, focused heavily on the Founding Era.

Yet it would be illogical to expect governments to anticipate future technological developments such as the rapid proliferation of accurate, long-range rifles in the post-Civil War period—to the contrary, regulation often lags substantially behind technological development.  Thus, there may be an especially persuasive case for later-in-time regulatory analogues when assessing restrictions designed in part to address the danger of long-range shooting.