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Legality of black powder open carry

BB62

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...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.
 
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ixtow

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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.

FS 790.001 said:
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....


FS 790.001(6) said:
(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."


FS 790.053(1) said:
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...
 
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WalkingWolf

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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.
 

Citizen

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[SIZE=-1]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.

[/SIZE]
http://www.leg.state.fl.us/statutes...ute&URL=0700-0799/0790/Sections/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.
 

ixtow

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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.
No. It doesn't. Read again. The word "and" is in there along with "fixed ammunition" and a few other important words regarding supply and non-domestic manufacture.

The 1911 you describe would qualify if:

The ammo it uses was no longer made in the USA, and not available by normal commercial channels. You're done right there because .45acp is everywhere.

So, it'd have to be chambered in something that isn't made anywhere in the USA, and which you can't walk into a store and buy.

You'd have to be able to prove that it isn't being made by anyone. Then contract someone in a foreign country to make one whole box for you. Then import that box of ammo.

If anyone in the USA ever loaded one round of it, then you'd be out of luck again because it clearly states that the ammo cannot be manufactured in the USA for the gun that uses it to qualify. Regardless of whether you know about it, or if that's where you got the ammo. The fact that it exists is all that matters to nullify you. So, it's all about the ammo and impossible metrics. How do you prove that nobody in the country has, is, or ever will do that?

Throw in ITAR abuses, and you're going to prison for supposedly divulging "state secrets" if you allow the mere information about this cartridge to leave the USA... So... The only way you can qualify a cartridge gun under Floriduh's "Antique Firearm" defintion, is to violate Federal ITAR... Or import a pre-existing antique gun who's cartridge design did not originate in the USA to begin with...

Effing ridiculous.

Oh, and we're not done. The very first sentence of 790.001 says that these very definitions are subject to being bent to suit whatever interest/agenda is wanted at the time. So even after you manage to do all that BS, 790.053's use of the phrase "any firearm" can be used to breach the definitions stated on a whim. So, you jumped through all those hoops only to end up wasting a ton of time and money, and end up in prison as a felon anyway.

"...shall not be infringed." Doesn't mean much anymore, eh?

If this doesn't make people mad enough to do something about it, what ever will?

See this post for citations and the spaghetti references explained. It's a mess, but it's there...

http://forum.opencarry.org/forums/s...r-open-carry&p=2183390&viewfull=1#post2183390
 
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ixtow

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Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time.
I would love to have done it. But I've got a life to live. Moving on.

For the record, I said I would eat every word I spoke here saying that it would never happen if Floriduh got Gold Star Status. I extended the offer to Green Status as a form of motivation to those who are supposedly on the same team, but hate me for constantly pointing out that they're un-useful elitists doing token silly things that will never work... I would have been glad to very literally eat my words. But it's never going to happen...

Since it is unlikely that I will be in Floriduh, or even the USA, at such time that it does happen, if it ever does happen, I've rescinded the offer. It's just not worth the effort to watch it anymore, and I'll be too old to care... At this point, my words stand even if it does happen, so eating them would not serve symbolic. Too little, too late, even if it happened right now.

I ask not your counsel nor your arms. May your chains rest lightly upon you, and posterity forget that you were my countrymen.

Patience may be a virtue, but if you die of old age being "patient," totally not worth it. Life is for living, not waiting around forever while liars think themselves clever.
 
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Grapeshot

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--snipped--

Patience may be a virtue, but if you die of old age being "patient," totally not worth it. Life is for living, not waiting around forever while liars think themselves clever.
True.

Doctors may lose patients, but should never lose their patience.
 

ixtow

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Doctors may lose patients, but should never lose their patience.
No patient should have that much patience.

Time kills us all.

No Doctor ever cured anyone of time.

I'd like to live free while I still can, not wait around forever while the Elites giggle and pretend to work.

...still not one word from any of them on this topic.
 

Robin47

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No. It doesn't. Read again. The word "and" is in there along with "fixed ammunition" and a few other important words regarding supply and non-domestic manufacture.

The 1911 you describe would qualify if:

The ammo it uses was no longer made in the USA, and not available by normal commercial channels. You're done right there because .45acp is everywhere.

So, it'd have to be chambered in something that isn't made anywhere in the USA, and which you can't walk into a store and buy.

You'd have to be able to prove that it isn't being made by anyone. Then contract someone in a foreign country to make one whole box for you. Then import that box of ammo.

If anyone in the USA ever loaded one round of it, then you'd be out of luck again because it clearly states that the ammo cannot be manufactured in the USA for the gun that uses it to qualify. Regardless of whether you know about it, or if that's where you got the ammo. The fact that it exists is all that matters to nullify you. So, it's all about the ammo and impossible metrics. How do you prove that nobody in the country has, is, or ever will do that?

Throw in ITAR abuses, and you're going to prison for supposedly divulging "state secrets" if you allow the mere information about this cartridge to leave the USA... So... The only way you can qualify a cartridge gun under Floriduh's "Antique Firearm" defintion, is to violate Federal ITAR... Or import a pre-existing antique gun who's cartridge design did not originate in the USA to begin with...

Effing ridiculous.

Oh, and we're not done. The very first sentence of 790.001 says that these very definitions are subject to being bent to suit whatever interest/agenda is wanted at the time. So even after you manage to do all that BS, 790.053's use of the phrase "any firearm" can be used to breach the definitions stated on a whim. So, you jumped through all those hoops only to end up wasting a ton of time and money, and end up in prison as a felon anyway.

"...shall not be infringed." Doesn't mean much anymore, eh?

If this doesn't make people mad enough to do something about it, what ever will?

See this post for citations and the spaghetti references explained. It's a mess, but it's there...

http://forum.opencarry.org/forums/s...r-open-carry&p=2183390&viewfull=1#post2183390



Those who take the oath, and then work against it are liers, and oath breakers, they are commiting fraud, and that is a felony
by taking public monies under false pretences ( A Paycheck) . Think about it !
The oath is taken to "We The People" to honor and protect our rights,and our property, if able.
To work against us and just taking our property, is commiting fraud.
We do have the right of Citizens Arrest when laws are being broken even "Undercolor of law".
Maybury vs. Madison 5 US (2 Cranch) 137,174,176, (1803) And
16 AM Jur 2d, sec 177 & late sec 256
 

ixtow

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Those who take the oath, and then work against it are liers, and oath breakers, they are commiting fraud, and that is a felony
by taking public monies under false pretences ( A Paycheck) . Think about it !
The oath is taken to "We The People" to honor and protect our rights,and our property, if able.
To work against us and just taking our property, is commiting fraud.
We do have the right of Citizens Arrest when laws are being broken even "Undercolor of law".
Maybury vs. Madison 5 US (2 Cranch) 137,174,176, (1803) And
16 AM Jur 2d, sec 177 & late sec 256
Preaching to the choir.

But are you going to gamble your freedom in a flagrantly corrupt kangaroo kourt for it?

Let me know when you do.
 

Gideon70

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[SIZE=-1]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.

[/SIZE]
http://www.leg.state.fl.us/statutes...ute&URL=0700-0799/0790/Sections/0790.001.html

I just had to laugh my rear end off when I realized what this statute meant.

You do realize the Browning 1915 and the Colt 1911 were both in production since 1918, right? The 1911 is still sold today - and EVERY ONE OF THEM is a replica!
 

Grapeshot

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[SIZE=-1]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.

[/SIZE]
http://www.leg.state.fl.us/statutes...ute&URL=0700-0799/0790/Sections/0790.001.html

I just had to laugh my rear end off when I realized what this statute meant.

You do realize the Browning 1915 and the Colt 1911 were both in production since 1918, right? The 1911 is still sold today - and EVERY ONE OF THEM is a replica!
You cannot exclude the other requirements, which you have selectively done.

So neither the Browning 1915 nor the 1911 qualifies as an antique firearm - your reply is a gross misstatement.
 

Daytona Gun Owner

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You cannot exclude the other requirements, which you have selectively done.

So neither the Browning 1915 nor the 1911 qualifies as an antique firearm - your reply is a gross misstatement.

I'm following this thread because of the way it was handled in another area. Grapeshot, it's one thing to agree to disagree, but what you did when you decided that it wasn't legal was to give legal advice. That is a crime under Florida law.

“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.

I am a paralegal myself, and while I cannot speak to the legality of carrying a 1911, I can say this. If you want a definitive answer, then you will need to write the Florida Attorney General and ask an opinion. I searched Lexis and can't find any case law on the matter.

As for the reading of a statute... when a statute says including, it does not mean that the statute covers only those firearms which exhibit those specific characteristics. The key words are (am my professor, the DA for Flagler Beach) said you kind of have to use plus signs and minus signs when trying to figure these things out. It sort of works.

Antique firearm is any a firearm. That's a limitation to firearm.
Manufactured before 1918. That's a limitation to a year specified.
Replica thereof. That's opening it up a little more to all firearms which are functionally equivalent to one manufactured before the date - but according to Websters, (Blacks law had no definition) it has to be an exact copy of the actual weapon made by the same company.
"And Also," adds more weapons to the exception.

Legislative intent play a big part in this as well. It's not, "excluding requirements," to try to discuss and understand a statute.

I might not have time tomorrow, but when I get a chance and one of the lawyers is free, I'll ask.
 

Grapeshot

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I'm following this thread because of the way it was handled in another area. Grapeshot, it's one thing to agree to disagree, but what you did when you decided that it wasn't legal was to give legal advice. That is a crime under Florida law.

--snipped--
So when you give an opinion, it is not "legal advice," but when I give an opinion (you who admittedly are not an attorney) claim I am giving legal advice. That would almost be funny if it were not so contradictory.

I am clearly not giving legal advice, but pointing people to the law, and defining what I see.

In Virginia, giving an opinion is not illegal. The matter of whether compensation is involved is what resolves the issue of "legal advice." That according to my go-to-legal-garu attorney. I have not been paid nor solicited payment of any kind for any of my opinions.

BTW - I am not generally subject to the laws of Florida as I have my feet firmly planted in Virginia. :)
 

ixtow

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Didn't I bring up the topic of "Reading what you want to read?"

I hope he doesn't get screwed...
 
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Robin47

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Preaching to the choir.

But are you going to gamble your freedom in a flagrantly corrupt kangaroo kourt for it?

Let me know when you do.

Yup your right ixtow, but when some of these oath breaking authorities, start
getting arrested for fraud, then things might start looking up.
There is the law of 1803, is still on the books. Also:
16 Am Jur 2d, Sec 177 late 2d, Sec 256.
But yes your right I to am an old guy and time is running out for me to,
However the good news is us older guys, should lead the younger patriots
as we got nothing to lose but arthritis and more hard times :)
Be brave Bro, and stand your ground.
Carry on ! Robin47
 

1245A Defender

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north mason county, Washington, USA
Wowwie!!!

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).

AD

Sooo,,, necro wise,,, still no arrest!
 
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