• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Florida Carry legal victory makes way for constitutional challenge to Open Carry Ban

N

notalawyer

Regular Member
Joined
Jun 19, 2012
Messages
1,061
Location
Florida
MedWheeler said:
rvrctyrngr writes:



There is nothing in the statute that states a lawfully-concealed firearm be a handgun. If you can conceal it, you can carry it.
Click to expand...

I refer you to 790.06(1) Florida Statutes, which reads in pertinent part:
. . .
For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie
. . .
Click to expand...







However, there is an argument that one may carry any firearm that is concealed, due to the wording contained in 790.01:
3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
Click to expand...
Note it does not say carrying a firearm or weapon as authorized in that section, it simply says that if one is licensed 790.01 does not apply.
Interesting legal argument. I'd like to see it played out in court.
 
Last edited:
h20squirter

h20squirter

New member
Joined
Dec 18, 2011
Messages
9
Location
Mount Dora, FL
I know that a lot of folks are against Open Carry, but I really hope that this passes, mostly from a Constitutional standpoint, because, "Shall not be infringed" is pretty plain even for me to understand, but also being a big guy in FL Open carry would be much more comfortable. I'm don't want to get into a debate in the merit between OC and CC. just my $.02.
 
M

MedWheeler

Regular Member
Joined
Dec 27, 2011
Messages
33
Location
Florida
Notalawyer, regarding post 21, I, too, would like to see this one played out. There was a case in Florida in which an unlicensed person was charged specifically with carrying a concealed firearm which involved a long gun. I cannot remember if it was a rifle or a shotgun. The defendant had been stopped while driving a compact pickup truck equipped with a bench seat, and a long gun was stored behind that seat. There, it was within the limits of the law. The defendant exited his vehicle and reached behind that seat to retrieve his documents (DL, registration, etc.) and was then arrested for the CCF charge because the gun was then not only considered as having been stored in a concealed manner, but also "readily accessible." I don't remember the outcome, but I'm pretty sure it involved neither a dismissal nor an acquittal. It would be interesting to know if any part of the argument in his defense (if one was even presented) involved the quote from 790.01(1) in which you note includes the word "handgun", but does not even address any other type of firearm.

Edit: In re-reading the entire section, I agree that the legislative intent is that, while the carrying of any type of firearm in a concealed manner without a license is unlawful, only the carrying of a handgun (and the other "non-firearm" weapons mentioned within the statute) becomes excluded from that prohibition when a person is licensed to carry. From 790.01(3), which addresses the ban on carrying of concealed firearms:

This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06
Click to expand...
.

"Pursuant to the provisions of s. 790.06" would include, I assume, the definition that section offers of a permitted firearm as being a handgun.

So, I consider myself corrected. The more I review it, the clearer it seems.
 
Last edited:
N

notalawyer

Regular Member
Joined
Jun 19, 2012
Messages
1,061
Location
Florida
MedWheeler said:
Notalawyer, regarding post 21, I, too, would like to see this one played out. There was a case in Florida in which an unlicensed person was charged specifically with carrying a concealed firearm which involved a long gun. I cannot remember if it was a rifle or a shotgun. The defendant had been stopped while driving a compact pickup truck equipped with a bench seat, and a long gun was stored behind that seat. There, it was within the limits of the law. The defendant exited his vehicle and reached behind that seat to retrieve his documents (DL, registration, etc.) and was then arrested for the CCF charge because the gun was then not only considered as having been stored in a concealed manner, but also "readily accessible." I don't remember the outcome, but I'm pretty sure it involved neither a dismissal nor an acquittal. It would be interesting to know if any part of the argument in his defense (if one was even presented) involved the quote from 790.01(1) in which you note includes the word "handgun", but does not even address any other type of firearm.

Edit: In re-reading the entire section, I agree that the legislative intent is that, while the carrying of any type of firearm in a concealed manner without a license is unlawful, only the carrying of a handgun (and the other "non-firearm" weapons mentioned within the statute) becomes excluded from that prohibition when a person is licensed to carry. From 790.01(3), which addresses the ban on carrying of concealed firearms:

.

"Pursuant to the provisions of s. 790.06" would include, I assume, the definition that section offers of a permitted firearm as being a handgun.

So, I consider myself corrected. The more I review it, the clearer it seems.
Click to expand...



Perhaps it's this case you are referring to?
Boswink v. State, 636 So. 2d 584 - Fla: Dist. Court of Appeals, 2nd Dist. 1994

Because of the length of the weapons and their position behind the driver's seat, Boswink could only retrieve the guns by opening the door and awkwardly reaching behind the seat. In all probability, he could not accomplish the feat without actually exiting the truck. As a matter of law, the guns could not have been retrieved "as easily and quickly as if carried on the person," and Boswink's possession of them in his truck was not illegal. Accordingly, we reverse the trial court's order and remand for the entry of an order dismissing the firearms charges.
Click to expand...
 
M

MedWheeler

Regular Member
Joined
Dec 27, 2011
Messages
33
Location
Florida
^^ I believe that is indeed the one, though I had not heard the disposition when I first read of it. That name does sound familiar, though.
 
77zach

77zach

Regular Member
Joined
Feb 5, 2007
Messages
2,913
Location
Marion County, FL
Might a SCOTUS decision on the Illinois ban hurt Norman v. State?

http://www.thetruthaboutguns.com/20...ension-for-ccw-bill-appeals-to-supreme-court/

I'm thinking Norman will be decided before the court takes this case (if they take it). Hopefully. My concern is that we'll get another milktoast decision like Heller. I see the present court deciding we have a "right" to some type of licensing scheme for some type of carry. And that's it. If you live in New Jersey, that's fine, after all they have a licensing mechanism.

So I see a Florida court saying, "well, the right to bear arms is actually a right to apply for a license, which florida has to give to you unless you're a bad guy."

Also, I wonder if the Florida judges who will hear Norman know that OC is not illegal in most states? I understand that should NOT matter, and that 790.053 is unconstitutional after applying truth and deductive reasoning, but we all know judges are subject to peer pressure and political concerns.
 
Rich7553

Rich7553

Regular Member
Joined
Jan 15, 2010
Messages
515
Location
SWFL
notalawyer said:
Perhaps it's this case you are referring to?
Boswink v. State, 636 So. 2d 584 - Fla: Dist. Court of Appeals, 2nd Dist. 1994
Click to expand...

Assuming 790.25(5) was amended after this case went to trial, this issue has been resolved with the inclusion of the following in statute, "Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use."
 
Last edited:
G

GHF

Regular Member
Joined
Nov 19, 2010
Messages
24
Location
Orlando, Florida
My Tactical Point of View

I am for open carry for individuals with a CWFL at this point in time, but tactically I would only do it under two circumstances.
  1. While driving - as a lefty the seat belt and having to keep something over it is a problem.
  2. At night, in dark areas such as parking lots, my front yard, walking my dog. I wear dark clothing (to disguise my phone holster), and I have a black gun in black holsters.
 
Grapeshot

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
StogieC said:
--snipped--

The Initial Brief on the Merits of the case was filed on Monday, April 22nd, 2013. The State will have 20 days to file an Answer Brief.
Click to expand...
Presume that we shall see something on this soon.

GHF said:
I am for open carry for individuals with a CWFL at this point in time, but tactically I would only do it under two circumstances.
  1. While driving - as a lefty the seat belt and having to keep something over it is a problem.
  2. At night, in dark areas such as parking lots, my front yard, walking my dog. I wear dark clothing (to disguise my phone holster), and I have a black gun in black holsters.
Click to expand...
So you are basically saying that you would OC only by hiding the fact that you were OCing. Seems to me that defeats the whole purpose.
 
Grapeshot

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
quote_icon.png
Originally Posted by GHF

I am for open carry for individuals with a CWFL at this point in time, but tactically I would only do it under two circumstances.

  1. While driving - as a lefty the seat belt and having to keep something over it is a problem.
  2. At night, in dark areas such as parking lots, my front yard, walking my dog. I wear dark clothing (to disguise my phone holster), and I have a black gun in black holsters.
Click to expand...
quote_icon.png
Originally Posted by Grapeshot

So you are basically saying that you would OC only by hiding the fact that you were OCing. Seems to me that defeats the whole purpose.
Click to expand...
ADulay said:
No not really. COMFORT is also a good reason to open carry. In fact it's my main reason!

AD
Click to expand...

I understand, but the point of the question was directed to the person I addressed,
 
G

GHF

Regular Member
Joined
Nov 19, 2010
Messages
24
Location
Orlando, Florida
Tactical Perspective on OC

Grapeshot -

From a tactical perspective, my approach makes the most sense for me. You missed the part about my phone harness, which is essentially a shoulder holster, with my IPhone under my right arm, and my wallet under my left. I have been Terry Stopped twice for the phone rig, and both times I was carrying concealed (in FL).
 
S

shastadude17

Regular Member
Joined
Dec 13, 2011
Messages
150
Location
United States
Here's all the argument you need:

FL courts in the late 80's ruled that a concealed weapons permit is a "privilege, not a vested right". Open carry is illegal. So if concealed carry is not a right, and open carry is illegal except under extreme circumstances, Florida Statutes are in violation of the US and FL constitution as you have no right to bear arms. Done. Someone copy pasta that and send it to the governor :lol:
 
Last edited:
Grapeshot

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
GHF said:
Grapeshot -

From a tactical perspective, my approach makes the most sense for me. You missed the part about my phone harness, which is essentially a shoulder holster, with my IPhone under my right arm, and my wallet under my left. I have been Terry Stopped twice for the phone rig, and both times I was carrying concealed (in FL).
Click to expand...

Don't see how I could miss what wasn't disclosed - at least not on this thread.
 
P

protias

Regular Member
Joined
Dec 18, 2008
Messages
7,308
Location
SE, WI
GHF said:
Grapeshot -

From a tactical perspective, my approach makes the most sense for me. You missed the part about my phone harness, which is essentially a shoulder holster, with my IPhone under my right arm, and my wallet under my left. I have been Terry Stopped twice for the phone rig, and both times I was carrying concealed (in FL).
Click to expand...

Is it more tactical or less tactical? Is it tactical black? I'm all sorts of confused by what you mean as tactical...
 
You must log in or register to reply here.
Top