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Thread: Legality of black powder open carry

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    Legality of black powder open carry

    Hey guys, I've been lurking here for a few months and just decided to register primarily because I have a question I simply can't seem to find a definitive answer on: Is it legal to open carry a black powder firearm in the State of Florida?

    My confusion stems primarily from:

    1) No weapon may be legally open carried in the State of Florida; yet
    2) Black powder firearms are technically not considered weapons (as I understand the definition).

    I have inquired at the local police department (the main office) and have received everything from "Why?," to "You can't legally carry any weapon anytime anywhere," to "What's a black powder gun?" (well, along those lines). I've inquired with black powder buddies and gotten both "Yes" and "No" results.

    Now I'm not talking about strapping on a cap and ball cowboy shooter and using it as my self-defense gun; I have a Witness 10mm and a concealed carry license for that purpose. No, I am asking primarily for the issue of transportation and such. I do not currently have a car of my own and often walk or bike to where I need to go. Obviously my Hawken .45 caliber rifle is too big to stick in a pack and so on.

    Just trying to stay well informed - thanks in advance everyone! =D

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    Lightbulb

    IANAL, but it seems that it would be legal to open carry an "antique firearm" in Florida. However, the distinction between "firearm" and "antique firearm" in the statute is not one I would expect the average street cop to have the diligence to make. Consequently, because I do not have the time or money to defend myself in court, I wouldn't try it unless I also could take advantage of one of the exceptions in 790.25.

    790.053 Open carrying of weapons.—
    (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

    (2) A person may openly carry, for purposes of lawful self-defense:
    (a) A self-defense chemical spray.
    (b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
    (3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
    History.—s. 1, ch. 87-537; s. 173, ch. 91-224; s. 3, ch. 97-72; s. 1205, ch. 97-102; s. 3, ch. 2006-298; s. 1, ch. 2011-145.
    90.001 Definitions.—As used in this chapter, except where the context otherwise requires:
    (1) “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

    . . .


    (6) “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

    Last edited by ManInBlack; 06-18-2012 at 01:00 AM.
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    Quote Originally Posted by ManInBlack View Post
    IANAL, but it seems that it would be legal to open carry an "antique firearm" in Florida. However, the distinction between "firearm" and "antique firearm" in the statute is not one I would expect the average street cop to have the diligence to make. Consequently, because I do not have the time or money to defend myself in court, I wouldn't try it unless I also could take advantage of one of the exceptions in 790.25.
    Thanks a lot! I had read this statute and definition earlier and am thoroughly under the impression that it is OK to do so simply because the item in question is an "antique firearm".

    I concur with the sentiment concerning the average patrol officer not knowing the difference and whole-heartedly sympathize on not wanting to be a test case; however, it is nice to have all the information I can in case the need should ever arise to transport one openly.

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    JMHO that bit about "The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime."

    that is the sticky bit here seeing as how OC is illegal, thus a crime, carrying antique firearm openly COULD invoke this and make it a crime, lawyers and epically prosecutors (lawyer + politician) are slippery and could easily try to twist this all up

    JMHO and IANAL

    (no offense intended to anyone here just a generalization)
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    Quote Originally Posted by edrolee View Post
    JMHO that bit about "The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime."

    that is the sticky bit here seeing as how OC is illegal, thus a crime, carrying antique firearm openly COULD invoke this and make it a crime, lawyers and epically prosecutors (lawyer + politician) are slippery and could easily try to twist this all up

    JMHO and IANAL

    (no offense intended to anyone here just a generalization)
    The statute criminalizes openly carrying "any firearm." Openly carrying an an antique firearm is not criminalized in statute, so the antique firearm cannot be considered a firearm.
    Last edited by ManInBlack; 06-19-2012 at 06:57 PM.
    Total ignorance: an Obama supporter's stock in trade
    Quote Originally Posted by Beretta92FSLady View Post
    All the talk about Overthrowing Big Government, Revolution, etc., it's just another one of those nostalgic ideas that individuals have idealized.
    O RLY?
    http://en.wikipedia.org/wiki/List_of...and_rebellions
    Quote Originally Posted by Beretta92FSLady View Post
    Books are overrated; and so is history.

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    Counting on anyone other than a shooting enthusiast to be able to make the distinction between one or the other....not likely to have a welcome outcome.

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    Quote Originally Posted by j4l View Post
    Counting on anyone other than a shooting enthusiast to be able to make the distinction between one or the other....not likely to have a welcome outcome.
    10-4

    My mother lives in Florida, and her house is just off the Intracoastal. I get nervous just OC'ing her yard while fishing, as there is a public park across the canal in which I regularly see cruisers patrolling.
    Total ignorance: an Obama supporter's stock in trade
    Quote Originally Posted by Beretta92FSLady View Post
    All the talk about Overthrowing Big Government, Revolution, etc., it's just another one of those nostalgic ideas that individuals have idealized.
    O RLY?
    http://en.wikipedia.org/wiki/List_of...and_rebellions
    Quote Originally Posted by Beretta92FSLady View Post
    Books are overrated; and so is history.

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    Quote Originally Posted by ManInBlack View Post
    10-4

    My mother lives in Florida, and her house is just off the Intracoastal. I get nervous just OC'ing her yard while fishing, as there is a public park across the canal in which I regularly see cruisers patrolling.
    Why would you be nervous?

    You're fishing. You're covered.

    It's pretty black and white for sure.

    Heck, if you're really bothered about it, keep a printout of the statute in your fishing tackle box! I do!

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    Quote Originally Posted by ADulay View Post
    Why would you be nervous?

    You're fishing. You're covered.

    It's pretty black and white for sure.

    Heck, if you're really bothered about it, keep a printout of the statute in your fishing tackle box! I do!

    AD
    For sure...it's just that, in a state in which it is illegal to "normal" open carry, I am somewhat leery of relying on an exception, especially as a non-resident.

    Just jitters, I suppose, like when I first started carrying. I imagine it will, like most things, ease with time.
    Total ignorance: an Obama supporter's stock in trade
    Quote Originally Posted by Beretta92FSLady View Post
    All the talk about Overthrowing Big Government, Revolution, etc., it's just another one of those nostalgic ideas that individuals have idealized.
    O RLY?
    http://en.wikipedia.org/wiki/List_of...and_rebellions
    Quote Originally Posted by Beretta92FSLady View Post
    Books are overrated; and so is history.

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    Quote Originally Posted by ManInBlack View Post
    Just jitters, I suppose, like when I first started carrying. I imagine it will, like most things, ease with time.
    Very true.

    When I first starting to open carry full time, I was just as apprehensive as the next guy, but that soon fades away the more comfortable you become with it.

    Now I don't even think about it as it's just my normal routine and even the passing city PD or Sheriff's cars don't even get a second look from me.

    Remember, my OC time is always on the motorcyle (and fishing and shooting, of course).

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    Last edited by ADulay; 06-20-2012 at 02:54 PM.
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    I wouldn't do it simply because there's bound to be an idiot cop who will call the entire force over, place you in fear for your life, scrape your chin against the hard concrete as they launch you unto the floor, cuffed, and then ruin the perfect criminal record that you likely have (and that most folks on this forum have). Whether it's a weapon or not is immaterial. It propels a charge using powder, primer, etc? It's a gun to a cop no matter which way you slice it.

    The law here is so nuanced, and the cops here are so not, that this is almost akin to asking: "can I smoke marijuana-scented tobacco in front of a cop?" Sure you can, it's just a scent and isn't the real thing, but do you really want to face the hassles that can go along with that? Plenty of cops will have their cop ego bruised if you start getting into nuance: they'll feel like you're condescending to them, and then you'll be the one to face the hassle.

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    Quote Originally Posted by Jojo712 View Post
    I wouldn't do it simply because there's bound to be an idiot cop who will call the entire force over, place you in fear for your life, scrape your chin against the hard concrete as they launch you unto the floor, cuffed, and then ruin the perfect criminal record that you likely have (and that most folks on this forum have). Whether it's a weapon or not is immaterial. It propels a charge using powder, primer, etc? It's a gun to a cop no matter which way you slice it.

    The law here is so nuanced, and the cops here are so not, that this is almost akin to asking: "can I smoke marijuana-scented tobacco in front of a cop?" Sure you can, it's just a scent and isn't the real thing, but do you really want to face the hassles that can go along with that? Plenty of cops will have their cop ego bruised if you start getting into nuance: they'll feel like you're condescending to them, and then you'll be the one to face the hassle.
    Defining fear as wisdom is the creed of cowards and why we keep losing.
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    Quote Originally Posted by Wulframn View Post
    Hey guys, I've been lurking here for a few months and just decided to register primarily because I have a question I simply can't seem to find a definitive answer on: Is it legal to open carry a black powder firearm in the State of Florida? ...
    Welcome to (registered) OCDO! It's great that you're here and even better that your first posts are about investigating the possibility of engaging in activism.

    Keep up the questions and the interaction.

    A suggestion: if you are satisfied with the legality of OCing a particular type of firearm, and want to do so in public, put the local police and prosecutor on notice of your intent to do so, stating that it's legal as far as you're concerned. In the same note, ask for their response if they disagree.

    I can supply you with various types of notices that I've used prior to activism in various states. I'd also get to know ixtow, because he's on the same wavelength as you are.

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    Quote Originally Posted by ixtow View Post
    Defining fear as wisdom is the creed of cowards and why we keep losing.
    Well said.

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    Quote Originally Posted by ixtow View Post
    Defining fear as wisdom is the creed of cowards and why we keep losing.
    Agree with the bolded part, but don't with the statement "we keep losing."

    Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

    Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast.
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    Quote Originally Posted by Grapeshot View Post
    Agree with the bolded part, but don't with the statement "we keep losing."

    Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

    Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast.
    We have 8 constitutional carry states we have more shall issue states then may issue states we have seen improvements in many other states.

    Yes we are winning slower than we would like but we are winning.
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    Just to add to the mix, the statute quoted way above says "antique firearm". It does not say, "Uberti replica of an antique firearm." A Ruger Old Army .44 cap-and-ball revolver is definitely not an antique.

    I did not notice. Does the statute go on to define an antique firearm? Meaning, does the statute rely on federal law or regulation? Does the statute give a cut-off date, say, 1899 or 1920? Smokeless cartridge? Muzzleloader?

    Who's gonna buy a genuine antique Colt Navy .36 just to fall under the antique exemption? Especially with the other observations about cops not knowing the fine points of the law.
    Last edited by Citizen; 03-05-2016 at 09:13 PM.
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    Quote Originally Posted by Citizen View Post
    Just to add to the mix, the statute quoted way above says "antique firearm". It does not say, "Uberti replica of an antique firearm." A Ruger Old Army .44 cap-and-ball revolver is definitely not an antique.

    I did not notice. Does the statute go on to define an antique firearm? Meaning, does the statute rely on federal law or regulation? Does the statute give a cut-off date, say, 1899 or 1920? Smokeless cartridge? Muzzleloader?

    Who's gonna buy a genuine antique Colt Navy .36 just to fall under the antique exemption? Especially with the other observations about cops not knowing the fine points of the law.
    790.001 Definitions.—As used in this chapter, except where the context otherwise requires.

     “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

    http://www.leg.state.fl.us/statutes/.../0790.001.html
    Last edited by Grapeshot; 03-05-2016 at 09:30 PM. Reason: fixed
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    Quote Originally Posted by ixtow View Post
    Defining fear as wisdom is the creed of cowards and why we keep losing.
    Quote Originally Posted by Grapeshot View Post
    Agree with the bolded part, but don't with the statement "we keep losing."

    Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

    Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast.
    I took his post as a reference to Florida only, regarding the so-far failed attempts to get legal OC there.

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    Quote Originally Posted by BB62 View Post
    I took his post as a reference to Florida only, regarding the so-far failed attempts to get legal OC there.
    Ah so - you're likely right.

    Trust that ixtow took note of the referenced definition of antique firearm.....he should be able to legally OC one in public in Florida.........yes?
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    Quote Originally Posted by Grapeshot View Post
    ...Trust that ixtow took note of the referenced definition of antique firearm.....he should be able to legally OC one in public in Florida.........yes?
    It certainly seems so to me, based on your spot-on quote of FL law.
    Last edited by BB62; 03-06-2016 at 09:21 AM.

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    Quote Originally Posted by BB62 View Post
    It certainly seems so to me, based on your spot-on quote of FL law.
    Yes and no....

    The problem comes in the language of 790.053, which says "any firearm."

    Skipping the definitions section in 790.001, or choosing to ignore it because it's inconvenient to the anti's agenda, or deliberately misinterpreting it, clouds the water.

    Quote Originally Posted by FS 790.001
    Definitions. As used in this chapter, except where the context otherwise requires:

    (1) “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
    The above excludes the 1911, even though it is made prior to 1918. But, any cap/ball/powder/wad revolver with no cartridge at all, being made prior to 1918, or a replica there of made in 2016, would be defined as an "Antique Firearm."

    Fun tangent: If I built an 80% 1911 chambered in some bizarre cartridge that isn't available in "ordinary channels of commercial trade" and outside of the USA....


    Quote Originally Posted by FS 790.001(6)
    (6) “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.
    The above is where the previously defined "antique firearm" is excluded from the definition of "firearm."


    Quote Originally Posted by FS 790.053(1)
    Open carrying of weapons. (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
    Since "antique firearm" has been, for the purposes of this section, defined as excluded from the definition of "firearm," on it's face, Open Carry of a cap/ball revolver replica should be perfectly legal.

    But. And that's a big but. Let me be clear; I am not Sir Mixalot. I do not like big buts.

    "Any firearm" may be fraudulently/willfully misinterpreted to step outside the bounds of the definition stated in FS 790.001(1) and 790.001(6), and include literally any firearm, even though as defined for the purposes of this section it's not a firearm, based on "except where the context otherwise requires" at the beginning of 790.001.

    Note that the "except where the context otherwise requires" part is over the entire Satute, not bound in (1). So, this means the definitions can be bent to suit any agenda as desired. As such, the definitions section is pretty much Play Doh. Why even bother having definitions when the very first sentence in the definitions section essentially says "it can mean whatever we want it to mean." What kind of effng law is this? That's right, Floriduh law.

    The context does not, in fact, "otherwise requires," but it may well be very convenient to an agenda, and thus, be falsely "required" in order to persecute as they see fit.

    It may be "required" for getting away with persecution to misrepresent it, but it's not "required" for purposes of the law as plainly read.

    A slight of hand in misrepresenting the matter is all it takes to turn the matter upside-down.

    While it's easy to read the law and see what you want to see, that coin has two sides. I'm reading that law and seeing what it says. OC of Cap/Ball Revolver is legal. But, those who want it to say otherwise can easily do so... When the person with the gavel and handcuffs reads it how they want to read it, instead of what is there... That's the problem.

    It's circular... If they want it to be. Even though that's clearly not the real meaning. When a citizen reads the law as what he wants it to be, things can go badly for him. When it's the government that is seeing what it wants to see, that makes the situation equally unpleasant for the citizen.

    I guess lowly trash like me isn't supposed to do such fancy thinkin'...

    Since the "except where the context otherwise requires" part is so patently absurd on it's own, it strikes me that this could be removed for clarity and then...
    Last edited by ixtow; 03-08-2016 at 07:57 PM.
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    It would be what the definition of "is" is. IOW what did they mean by "any", and how will the courts interpret the word. I find the use of the word troubling when it clearly was not needed to outlaw firearm OC.

    The only way to resolve it is with a test case making it's way to the Fl supreme court.
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    -snip- My offer still stands, if you want to do an honest days work, I will send you my antique shine box..

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    Quote Originally Posted by WalkingWolf View Post
    The only way to resolve it is with a test case making it's way to the Fl supreme court.
    The word acrobatics they already performed on the brief exposure case sums it up. Anything to strip away freedom and common-sense.
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    Quote Originally Posted by Grapeshot View Post
    790.001 Definitions.—As used in this chapter, except where the context otherwise requires.

     “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

    http://www.leg.state.fl.us/statutes/.../0790.001.html
    Oh, ho, ho!!

    Ho, ho, ho, ho, ho!

    That means literally that M1911's are exempt. Not, M1911A1's--they were adopted in 1921 or something. But replica M1911's are exempted by the statute. I know a fella who picked up a real one for a song. Widow. She didn't realize what it was. And, neither did he. It was only after he had a while and started digging into the subject that he discovered he had a M1911(no A1). And, I'm pretty sure somebody out there is making replicas.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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