Results 1 to 22 of 22

Thread: Open carry black powder guns in Florida (thread split)

  1. #1
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239

    Open carry black powder guns in Florida (thread split)

    Over in another topic in another state's forum the conversation forked into a discussion of open carry of black powder firearms in Florida.

    The fork in that conversation began with this post: link

    The conversation was a lively and, I believe, productive one, but strayed from the topic of the OP, so I started this topic to continue it. If the you're coming in the middle go read from the link above, forward until you hit the post that directs you back here.

    My next reply on topic follows...

    With regard to the "any firearm" I tend to agree with NAL there - "any firearm" should mean "any of the items in 790.001(6)". Since the legislature said antique firearms aren't firearms, if they meant 790.053 to encompass antique firearms I believe they would have to say "any firearm or antique firearm" - otherwise they create an ambiguous statute. In criminal cases such ambiguities have to be resolved in favor of the defendant.

    I disagree with NAL when it comes to the "affirmative defense" aspect. It would be an affirmative defense if 790.001(6) did not exempt antique firearm from the definition of a firearm and if 790.053 read like this:

    (1) It is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.
    (2) This section shall not apply to a person open carrying an antique firearm.
    Since 790.001(6) does exempt antique firearms from the definition of a firearm, and since 790.053 reads like this:

    (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.[...]
    The elements of the crime of open carrying a weapon are:

    1. The accused is a person
    2. They openly carried on or about their person any firearm or electric weapon or device

    In order to arrest for a violation of 790.053 the officer needs to have "reasonable probable cause" (I hate that term, but that's what the courts use) that the item is a firearm (or electric weapon or device but we're not talking about that here). In order to make that determination the officer needs to know what a firearm is and isn't, so he has to look at 790.001(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.
    Well, an 1858 percussion cap revolver certainly will (or is designed to) expel a projectile by the action of an explosive, so it meets the first criteria of a firearm. But then the statute says it does not include an "antique firearm" (with exceptions). So he then has to contemplate definition of an antique in 790.001(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.
    Now, in order to arrest he needs to have reasonable probable cause that the thing on my hip is not "manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof". In 99.999999% of the cases the officer handles he will have no problem having reasonable probable cause that the item in question is not an antique. In the case of the Pietta in question, only the most absolutely firearms-ignorant could have such probable cause. If the officer were able to sincerely state that he doesn't know anything whatsoever about guns, then he might be able to say he reasonably had probable cause.

    Since these guns are sold cash and carry with no ID, background check, or waiting period -- even to convicted felons -- throughout the state, clearly they are not firearms under state law -- either that or the State is turning a blind eye to a massive number of crimes on a daily basis.

    Common definition for probable cause is:

    A reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true.
    That leaves a lot of wiggle room, but we can't twist things around here - he has to reasonably have PC that I'm guilty to arrest - which is the opposite of what you suggest - that if he's not certain it's an "antique" he should arrest.

    Again, this is all a logical exercise at this point unless someone wants to be a test case, and I'm not ready to volunteer for that just yet. I probably will go fishing while open carrying the 1858 at some point and see how that goes (since I have double insurance against arrest in that case).
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  2. #2
    Regular Member WalkingWolf's Avatar
    Join Date
    Jul 2011
    Location
    North Carolina
    Posts
    12,278
    This is similar to a discussion that has been going on in the NC forums. About OC in a restaurant where alcohol is sold and consumed. One group argues that it is legal with a CHP, the second group argues that concealed carry in NC is separate by state constitution from OC. Here is the thing, nobody from group one is willing to step up to the plate and get arrested to prove they are right. IMO anybody that is that positive is willing to do what they claim, if they don't they are not so sure.

    A person can pretty much get away with OC as long as they are going fishing, or claim to be. And OC activists DO OC carrying fishing poles. As of yet I have heard of none of them protesting with BP firearms. That was tried in Texas and resulted in arrests, I am not sure of the outcome in Texas. Maybe a Texas member can inform us of the outcome of those cases.

    I would not have a disagreement except for the word "any" which the legislature put their for a reason. And as there is no definition in the code of any, it falls to common definition. If that is the case IMO, it would include antique firearms, being that antique firearms are any firearm. Just as a NFA firearm would be any firearm, or a homemade firearm any firearm.

    In the case of a federal GFSZ there is no wording that might include antique firearms and clearly only firearms are within the limitations. I do OC antique firearms in GFSZ because I am confident that if arrested I will be acquitted, that is how sure I am.

    The great philosopher Nike said "Just do it!"
    It is well that war is so terrible – otherwise we would grow too fond of it.
    Robert E. Lee
    The patriot volunteer, fighting for country and his rights, makes the most reliable soldier on earth.
    Thomas Jonathan "Stonewall" Jackson
    What separates the winners from the losers is how a person reacts to each new twist of fate.
    President Donald Trump

  3. #3
    Regular Member conandan's Avatar
    Join Date
    Nov 2012
    Location
    florida
    Posts
    248
    What I am noticing with Florida. They word laws so that they can use them to there interest, not the people's. Just look at our state constitution, you have the right to keep and bear arms but the state can regulate how.

  4. #4
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by WalkingWolf View Post
    Here is the thing, nobody from group one is willing to step up to the plate and get arrested to prove they are right. IMO anybody that is that positive is willing to do what they claim, if they don't they are not so sure.
    I'm as positive as I can be that I'm right and that per state law it is legal.

    Currently I am not in a position to play "test case" because the arrest could have serious negative effects even if I "win". That and there's not really anything meaningful to be gained by winning at this time. Hopefully in 20 years I'll be retired, won't care about having a misdemeanor arrest record, and if it is still an open question I'll pass my time fighting something like this in court.

    Quote Originally Posted by WalkingWolf View Post
    I would not have a disagreement except for the word "any" which the legislature put their for a reason. And as there is no definition in the code of any, it falls to common definition. If that is the case IMO, it would include antique firearms, being that antique firearms are any firearm. Just as a NFA firearm would be any firearm, or a homemade firearm any firearm.
    In plain English the phrase "an antique firearm is not a firearm" makes no sense. In order to make it make sense you have to replace "antique firearm" with something else -- let's just say "doohickey" to make things easy. The phrase "a doohickey (as defined) is not a firearm" makes sense. Since we know we can't use plain English to interpret the statute (because plain English doesn't make sense), when the legislature says "any firearm" we have to read it using the 790.001(6) definition of firearm. If they wanted to encompass doohickeys (which are excluded from the definition of firearm) they'd have to say "any firearm or doohickey". There may be debate about that, but if there is, that ambiguity has to be resolved in favor of the defendant because the legislature failed to be clear and made a linguistic mess of things by calling these antique arms "antique firearms" and then saying they aren't "firearms".

    Quote Originally Posted by WalkingWolf View Post
    In the case of a federal GFSZ there is no wording that might include antique firearms and clearly only firearms are within the limitations. I do OC antique firearms in GFSZ because I am confident that if arrested I will be acquitted, that is how sure I am.
    If I were willing to tolerate an arrest in the noble pursuit of proving I'm right about something the government disagrees with me about, I'd have bigger fish to fry than OC of a BP revolver. I hope that when the day comes that I no longer care about such arrests that I still have the gumption to do something with that freedom.

    Alas, though I wish I were a stage 6 Kohlberg reasoner I'm more in the range of stage 5. Some day maybe...
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  5. #5
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by conandan View Post
    What I am noticing with Florida. They word laws so that they can use them to there interest, not the people's. Just look at our state constitution, you have the right to keep and bear arms but the state can regulate how.
    I don't necessarily think it is always done purposefully - I think that "bill drafting" is a challenging task. When they do a bad job courts fill in the blanks, and sometimes the courts do an equally bad job of guessing what the legislature intended (or the court doesn't give a damn what the legislature intended and is pursuing an agenda).

    I heard a pseudo-statistic once that something like 85% of all laws passed are to fix problems that were created by the prior passage of other laws. I think that sounds about right.
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  6. #6
    Regular Member conandan's Avatar
    Join Date
    Nov 2012
    Location
    florida
    Posts
    248
    Quote Originally Posted by BrianB View Post
    I don't necessarily think it is always done purposefully - I think that "bill drafting" is a challenging task. When they do a bad job courts fill in the blanks, and sometimes the courts do an equally bad job of guessing what the legislature intended (or the court doesn't give a damn what the legislature intended and is pursuing an agenda).

    I heard a pseudo-statistic once that something like 85% of all laws passed are to fix problems that were created by the prior passage of other laws. I think that sounds about right.
    I have no doubt they make new laws to fix other laws.

    And yes the courts do put there own agendas to fill in the holes. Maybe I'm to simple minded. But it should not be that hard to pass a bill that is clear and to the point. I understand there is to much division with the legislators. But passing vague or incomplete laws cause more problems than not passing the law.

  7. #7
    Regular Member 77zach's Avatar
    Join Date
    Feb 2007
    Location
    Marion County, FL
    Posts
    3,005
    Those arrests in Texas are probably going make the neocons grant at least licensed OC. The favored guy for next governor said it's time for OC to come to Texas, and that he would push it if elected.

    IMO, carrying an antique firearm in Fl would result in arrests, followed by proving to a kourt that the firearm carried was an antique.

    I can't afford to be arrested right now, but someone should if it would get the legislature to act while we still have a governor who said he would sign an OC bill. With respect to Fl Carry, their excellent Norman case is going to fail. Not any failure on their part, it's just that the kourt system doesn't have enough integrity left. Either side will appeal to the Fl SC, which means we'll be waiting forever for a bad result.
    Last edited by 77zach; 12-12-2013 at 05:30 PM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

  8. #8
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by 77zach View Post
    With respect to Fl Carry, their excellent Norman case is going to fail. Not any failure on their part, it's just that the kourt system doesn't have enough integrity left. Either side will appeal to the Fl SC, which means we'll be waiting forever for a bad result.
    I hope you're wrong, but I fear you're right.
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  9. #9
    Regular Member
    Join Date
    Jun 2012
    Location
    Florida
    Posts
    1,095
    I am sure I'm correct on the affirmative defense aspect and provided case law to support that conclusion.

    Here is another case that is directly on point:
    State v. Thompson, 390 So. 2d 715 - Fla: Supreme Court 1980
    We hold, therefore, that whether a proscribed weapon is an antique is a matter of defense; the state is not required to prove the negative as an element of the offense.
    So PC exists for an arrest simply because one is openly carrying a firearm, regardless if it appears to be (or, in fact, is) an Antique or replica thereof.

    Williams v. State, 468 So. 2d 447 - Fla: Dist. Court of Appeals, 1st Dist. 1985 is instructive as well as are several other cases that reference the Thompson case.


    In this same vein, any Open Carry arrest would be lawful simply given the fact that Open Carry is illegal. Yes, there are 'exceptions' however those 'exceptions' are legally considered affirmative defenses and not elements of the crime that the state would need to prove the negative of. Not that I'd ever expect an arrest/prosecution in more obvious circumstances such as being at the range or hunting, etc., but you never know the level of stupidity of a responding LEO or the 'douchbaggieness' present in any particular State Attorney.


    Since the legislature said antique firearms aren't firearms, if they meant 790.053 to encompass antique firearms I believe they would have to say "any firearm or antique firearm" - otherwise they create an ambiguous statute. In criminal cases such ambiguities have to be resolved in favor of the defendant.
    Exactly correct. Just like they reference "weapon or firearm" in other statutes because the definition of 'Weapon' specifically excludes 'Firearm'.

    It obvious that the "any firearm" in the description of "Antique Firearm" is a reference to the type of firearm ie. Pistol, rifle, etc. as opposed to the "any firearm" as suggested otherwise. If this were not the case, then the definition would be trapped in a hopeless circular reference and result in a void for vagueness unconstitutionality ruling.

  10. #10
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by notalawyer View Post
    I am sure I'm correct on the affirmative defense aspect and provided case law to support that conclusion.

    Here is another case that is directly on point:
    State v. Thompson, 390 So. 2d 715 - Fla: Supreme Court 1980

    So PC exists for an arrest simply because one is openly carrying a firearm, regardless if it appears to be (or, in fact, is) an Antique or replica thereof.

    Williams v. State, 468 So. 2d 447 - Fla: Dist. Court of Appeals, 1st Dist. 1985 is instructive as well as are several other cases that reference the Thompson case.
    Thanks for the case cites. Two things, one: wow do I think the Florida Supreme Court got it wrong in both the first cited case and the second cited case. I know it is arrogant for a non-lawyer to accuse the FL SC of getting it wrong, but that's my opinion. Two: in the first cited case the statute they were interpreting, that involved antique firearm language, operates differently than the statute we're dealing with.

    In the first cited case they were interpreting this statute:

    790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.—
    (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
    And in so interpreting they held that the bolded portion was a defense to prosecution, not an element of the crime. In other rulings they have said that if the exception is contained in a subsection that follows the definition of the crime it is an affirmative defense, but when the exception is in the definition of the crime itself it is an element. Here they are saying that even when it's in the section that defines the crime it's a defense and I think that's crap. That said, the court case was back in 1980, and for all I know 790.221 read differently then than it does now.

    More to the point, compare the above with 790.053:

    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.[...]
    Antiques are excluded from this offense not by exception but because it is never stated that carrying the antique is an offense to begin with (given the 790.001(6) definition of a firearm). The SBR statute 790.221 does at the outset criminalize possessing a short barreled antique shotgun because the 790.001(10) definition of a short barreled shotgun is:

    “Short-barreled shotgun” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches.
    Even an antique shotgun meets this definition (since the word firearm isn't used in there anywhere). That's why 790.221 had to include "but this section shall not apply to antique firearms" - which the FL SC decided is an affirmative defense.

    In the open carry statute, the thing carried must be a "firearm" (ignoring "electric weapon or device" as irrelevant here) and the item in question being a firearm is an element of the offense, and all elements of the offense must be proven by the state. Since the definition of "firearm" explicitly excludes "antique firearms", in order to prove the "firearm" element the state will have to prove that my firearm is not a replica of an antique (in my opinion).

    Since it might come up, you can't say that the language of 790.001(6) that says "[t]he term “firearm” does not include an antique firearm" is an affirmative defense because 790.001(6) is not a criminal statute - it is a definition.

    Returning briefly to the second cited case (Williams) - the ruling of the court is preposterous. The court basically said "we don't care if the statute reads that way, we think that it's absurd to think the legislature would do that, so we're going to ignore it".

    What they actually said was:

    Though petitioner presented a firearms expert who testified that he was reasonably certain the gun found on defendant was an antique, on cross-examination the expert admitted that the gun, with its plastic handles, could have been manufactured many years after it was patented. The expert testified further that the dates stamped on the barrel of the gun were the dates of its patents, not necessarily its manufacture. The ambiguity surrounding the date of manufacture of the gun left it a fact for jury determination. In the alternative, defendant focuses on the 'or replica thereof' wording of the statute, claiming that the gun, if not an antique, was certainly a replica of an antique.

    Williams would have us construe the antique 'or replica' exceptions of section 790.23 in such a way as to condone the concealment, by a convicted felon, of a firearm which may possibly be a replica of an antique, but is obviously operable and loaded with live ammunition. We do not believe that the legislature, when enacting section 790.23, intended that a convicted felon could be acquitted when possessing a concealed, loaded weapon by using the excuse that the weapon is an antique or a replica thereof. This literal requirement of the statute exhalts form over substance to the detriment of public policy, and such a result is clearly absurd. It is a basic tenet of statutory construction that statutes will not be interpreted so as to yield an absurd result.
    Being quite blunt, that's utter and complete bullcrap. The statute says exactly that. Antique firearms and replicas of antique firearms (as defined) are not firearms. Felons cannot legally possess firearms but they can legally possess antique firearms. Plenty of felons that still want to hunt do so, legally, with black powder firearms that are replicas of antiques. If Williams' firearm was "loaded with live ammunition" then in order to be legal for him it not only would need to be a replica of an antique but also use "ammunition [that] is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade". Assuming that was the case (the record does not say) the legislature absolutely did say exactly what the court decided what was absurd, and therefore chose to ignore.

    I should add that I too think it is absurd that Florida considers a "starter gun" (which fires blanks and is typically used to start races and the like) to be a firearm (even if it can't discharge a shot, so long as it may be readily converted to do so) yet does not consider a fully functional (and lethal) black powder revolver to be a firearm. That said, that's exactly what the legislature did and I think the court grossly overreached in Williams by deciding to ignore the plain wording of the statute.

    While informative, I don't think either case is a great fit for the question at hand, other than to point out that you never know if the court you end up in will decide that the legislature couldn't possibly have meant to do exactly what it did, and convict you anyway.
    Last edited by BrianB; 12-12-2013 at 11:07 PM.
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  11. #11
    Regular Member
    Join Date
    Jun 2012
    Location
    Florida
    Posts
    1,095
    Quote Originally Posted by BrianB View Post
    Thanks for the case cites.
    Interesting....Enjoying the discussion....it's good to see other's thoughtful, educated opinions. Keeps one sharp!

    What if 790.221 read something along the lines of:
    790.221 Possession of Specially Regulated Firearms; penalty.—
    (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any Specially Regulated Firearms which is, or may readily be made, operable.
    And there was a definition in 790.001 that read:
    'Specially Regulated Firearm' means: a short-barreled rifle, short-barreled shotgun, or machine gun; but not an Antique Firearm.
    Would that change your opinion?

    While I agree that is is BS, it's they way the courts will always operate. Our issue should be with the way the statutes are written.

    For example 790.01 should start off with "This section does not apply to those licensed in accordance with 790.06 . . . " and then go on to describe the proscribed activity.

    Do this in all the firearm related statutes and then the State will be forced to prove the negative as an element of the crime and, in fact, have RS/PC of the negative before a lawful stop/arrest could occur. But the Legislature will never do this, ever.
    Last edited by notalawyer; 12-12-2013 at 11:38 PM.

  12. #12
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by notalawyer View Post
    Interesting....Enjoying the discussion....it's good to see other's thoughtful, educated opinions. Keeps one sharp!
    Agreed. Always good to get down in the weeds with others who have a passion for the details. You can't help but pick up something new and useful.

    Quote Originally Posted by notalawyer View Post
    What if 790.221 read something along the lines of:
    790.221 Possession of Specially Regulated Firearms; penalty.—
    (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any Specially Regulated Firearms which is, or may readily be made, operable.
    And there was a definition in 790.001 that read:
    'Specially Regulated Firearm' means: a short-barreled rifle, short-barreled shotgun, or machine gun; but not an Antique Firearm.
    Would that change your opinion?
    If those hypothetical statutes were the ones in effect for the Thompson case I think it would have been impossible for them to say that the "antique/replica" status was an affirmative defense. Given the way the statutes actually were written I can see how they decided it was an affirmative defense, though I still disagree with them.

    Quote Originally Posted by notalawyer View Post
    While I agree that is is BS, it's they way the courts will always operate. Our issue should be with the way the statutes are written.

    For example 790.01 should start off with "This section does not apply to those licensed in accordance with 790.06 . . . " and then go on to describe the proscribed activity.

    Do this in all the firearm related statutes and then the State will be forced to prove the negative as an element of the crime and, in fact, have RS/PC of the negative before a lawful stop/arrest could occur. But the Legislature will never do this, ever.
    I agree wholeheartedly. I think all you have to do is move (3) to be the first item in 790.01 and the problem is solved. As I recall the FL SC has said that if the exception appears in a sub-section before the one that defines the crime it is an element and if it comes after it is an affirmative defense.

    As written today (for the benefit of those that don't read the Florida States for a hobby):
    790.01 Carrying concealed weapons.—
    (1) Except as provided in subsection (4), a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
    (2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    (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.
    (4) It is not a violation of this section for a person to carry for purposes of lawful self-defense, in a concealed manner:
    (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.
    (5) This section does not preclude any prosecution for the use of an electric weapon or device, a dart-firing stun gun, or a self-defense chemical spray during the commission of any criminal offense under s. 790.07, s. 790.10, s. 790.23, or s. 790.235, or for any other criminal offense.
    Again, for the benefit of others, because the exception for concealed weapon permit holders comes after the defined crimes of concealed carry the courts have held that the concealed weapon permit is an affirmative defense, and "not having a permit" is not an element of the crime. The courts say that "upon carrying a concealed firearm the crime of carrying a concealed weapon is complete". Thus if you "print" an officer has RAS to detain, force you to show your permit, etc.

    If the legislature just swapped (1) and (3) (so the exception for permit holders was first in the section) then "not having a permit" would be an element of the crime, and in order to stop you LE would have to have RAS that you did not have a permit (something that would be pretty hard for them to articulate unless they had first hand knowledge you were a convicted felon or something).

    I think the "conservatives" (have to put that in quotes) know that takes too much power from LE (and "conservatives" are typically very deferential to LE), and liberals would be against it simply because "gun nuts" want it. Therefore, like you, I think it is unlikely it will ever get changed.

    That said, I do believe Florida Carry has signaled an intent to at least take a shot at getting this changed at some point.
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  13. #13
    Regular Member 77zach's Avatar
    Join Date
    Feb 2007
    Location
    Marion County, FL
    Posts
    3,005
    Quote Originally Posted by BrianB View Post

    If the legislature just swapped (1) and (3) (so the exception for permit holders was first in the section) then "not having a permit" would be an element of the crime, and in order to stop you LE would have to have RAS that you did not have a permit (something that would be pretty hard for them to articulate unless they had first hand knowledge you were a convicted felon or something).

    I think the "conservatives" (have to put that in quotes) know that takes too much power from LE (and "conservatives" are typically very deferential to LE), and liberals would be against it simply because "gun nuts" want it. Therefore, like you, I think it is unlikely it will ever get changed.

    That said, I do believe Florida Carry has signaled an intent to at least take a shot at getting this changed at some point.
    They're not that smart, you may be able to fool them. Arkansas went from licensed CC to Constitutional Carry overnight because of the inattention of the legislature and anti-gun governor. Despite LE's refusal to recognize the law, they have not made good on their threats to arrest OCers. Local PD have even watched OC get togethers!
    Last edited by 77zach; 12-14-2013 at 08:40 PM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

  14. #14
    Regular Member Mas49.56's Avatar
    Join Date
    Mar 2010
    Location
    Florida, USA
    Posts
    309
    Quote Originally Posted by 77zach View Post
    They're not that smart, you may be able to fool them. Arkansas went from licensed CC to Constitutional Carry overnight because of the inattention of the legislature and anti-gun governor. Despite LE's refusal to recognize the law, they have not made good on their threats to arrest OCers. Local PD have even watched OC get togethers!
    Well if you're a convicted felon in my town you can now carry black powder weapons anywhere you want.


    http://www.northescambia.com/2013/12...n-replica-case

  15. #15
    Regular Member
    Join Date
    Jun 2012
    Location
    Florida
    Posts
    1,095
    Quote Originally Posted by Mas49.56 View Post
    Well if you're a convicted felon in my town you can now carry black powder weapons anywhere you want.


    http://www.northescambia.com/2013/12...n-replica-case
    That's not really what the ruling said.

    Plus they certified a direct conflict with the 5th DCA in the Bostic case in 2005.

    The conflict is on what id defined as a replica. In Bostic's case he had a fiber-optic scope installed on his black-powder rifle (was ruled not a replica because of that). Weeks had a scope (this ruling said that the scope did not change the nature of the replicaness).

    The Florida Supreme Court will now take up the conflict and finally decide on exactly what a replica is. Does it have to be a fairly exact copy of the original without modern accouterments or are these modern attachments simply "enhancements" and the underlying ignition system and overall design of the firearm itself the key determining factor.
    Last edited by notalawyer; 12-27-2013 at 03:11 PM.

  16. #16
    Regular Member Mas49.56's Avatar
    Join Date
    Mar 2010
    Location
    Florida, USA
    Posts
    309
    Quote Originally Posted by notalawyer View Post
    That's not really what the ruling said.

    Plus they certified a direct conflict with the 5th DCA in the Bostic case in 2005.

    The conflict is on what id defined as a replica. In Bostic's case he had a fiber-optic scope installed on his black-powder rifle (was ruled not a replica because of that). Weeks had a scope (this ruling said that the scope did not change the nature of the replicaness).

    The Florida Supreme Court will now take up the conflict and finally decide on exactly what a replica is. Does it have to be a fairly exact copy of the original without modern accouterments or are these modern attachments simply "enhancements" and the underlying ignition system and overall design of the firearm itself the key determining factor.
    Cool, maybe we will know soon once and for all!

  17. #17
    Regular Member BrianB's Avatar
    Join Date
    Apr 2011
    Location
    Florida
    Posts
    239
    Quote Originally Posted by notalawyer View Post
    That's not really what the ruling said.

    Plus they certified a direct conflict with the 5th DCA in the Bostic case in 2005.

    The conflict is on what id defined as a replica. In Bostic's case he had a fiber-optic scope installed on his black-powder rifle (was ruled not a replica because of that). Weeks had a scope (this ruling said that the scope did not change the nature of the replicaness).

    The Florida Supreme Court will now take up the conflict and finally decide on exactly what a replica is. Does it have to be a fairly exact copy of the original without modern accouterments or are these modern attachments simply "enhancements" and the underlying ignition system and overall design of the firearm itself the key determining factor.
    I think it was disingenuous (of the Bostic court) to argue that a replica of an antique firearm ceases to be a replica of an antique firearm if you install a modern scope on it. It's just a replica of an antique firearm with a modern scope. Now if they wanted to argue that the Ruger Old Army is not a replica of an antique firearm, because it is a completely modern gun that happens to be percussion cap, yet is not a copy of any pre-1918 gun, then that's a discussion that would make sense. I might still disagree, but it at least would be a sensible discussion.

    My sense is that the legislature actually sought to deregulate firearms using antique ignition methods and they would see no reason to regulate the Ruger Old Army but not the Remington 1858 replicas.

    Interestingly in the Weeks case they didn't really rule that his gun was legal per se, they ruled that the definition was sufficiently vague (as applied to felons in possession) to make his conviction unconstitutional. Wonder if the state will appeal it? If not, the "split" remains. If so, it will be interesting to see what the Florida Supreme Court has to say about it.
    Last edited by BrianB; 12-27-2013 at 03:45 PM.
    NRA Certified Instructor
    NRA Chief Range Safety Officer
    Front Sight Distinguished Graduate, Handgun, Glock 35 and Glock 23
    FFL Type 7, Class 2 SOT (Licensed NFA Firearms Manufacturer)
    If you CCW, consider the benefits of joining CCWSafe.com.

  18. #18
    Regular Member
    Join Date
    Jun 2012
    Location
    Florida
    Posts
    1,095
    Quote Originally Posted by BrianB View Post
    I think it was disingenuous (of the Bostic court) to argue that a replica of an antique firearm ceases to be a replica of an antique firearm if you install a modern scope on it. It's just a replica of an antique firearm with a modern scope. Now if they wanted to argue that the Ruger Old Army is not a replica of an antique firearm, because it is a completely modern gun that happens to be percussion cap, yet is not a copy of any pre-1918 gun, then that's a discussion that would make sense. I might still disagree, but it at least would be a sensible discussion.

    My sense is that the legislature actually sought to deregulate firearms using antique ignition methods and they would see no reason to regulate the Ruger Old Army but not the Remington 1858 replicas.

    Interestingly in the Weeks case they didn't really rule that his gun was legal per se, they ruled that the definition was sufficiently vague (as applied to felons in possession) to make his conviction unconstitutional. Wonder if the state will appeal it? If not, the "split" remains. If so, it will be interesting to see what the Florida Supreme Court has to say about it.
    Yeah, sometimes it's unfortunate when we have intellectuals on the courts who lack common sense.

    Its plainly obvious to normal people that the Legislature intended to exempt antique ignition systems form the definition of firearms.
    It makes no difference if it's stainless steel, polymer, cast iron, or ceramic stock/action; does not matter if it's got fiber optics, red dots, scope, bullet drop compensatory, computerized wind drift calculators, etc.
    They (wrongly) wanted to set them apart due the the flawed perception that they are significantly less dangerous because of the comparative slow reload time.

    Like the common-sense knowledge that 10 round magazines are less deadly then 17 or 30 round magazines. And 7 round magazines are even less deadly!
    Last edited by notalawyer; 12-27-2013 at 07:40 PM.

  19. #19
    Regular Member
    Join Date
    Jan 2011
    Location
    pottsboro,texas
    Posts
    200
    In the case of a federal GFSZ there is no wording that might include antique firearms and clearly only firearms are within the limitations. I do OC antique firearms in GFSZ because I am confident that if arrested I will be acquitted, that is how sure I am.
    ok I agree that if it says antique firearm ..that makes no sense but in gfsz the kicker here is the word gun ...antique gun makes more sense and just like cartridge gun or watergun ,ect where is the line drawn on the word gun? ....or is it ffsz, firearm free school zone? in tx there has been a long belief that you can carry a black powder in a bar but no , that sign says weapons, not firearms of which (I believe )covers bp just like the word gun does......as for cases in tx goes ....we are still waiting on decisions ...well last time I checked
    Our ancesters, veterens, and people of the service gave and are giving their time and sacrifice to preserve and defend our rights . it''s up to us the people to show appreciation by not sacrificing but investing time to exercise and preserve those rights.......the bushwacker...

  20. #20
    Founder's Club Member ixtow's Avatar
    Join Date
    Nov 2006
    Location
    Suwannee County, FL
    Posts
    5,069
    Quote Originally Posted by conandan View Post
    What I am noticing with Florida. They word laws so that they can use them to there interest, not the people's. Just look at our state constitution, you have the right to keep and bear arms but the state can regulate how.
    Precisely. Florida is a biut of an anomaly like that. The legislature creates blanket bans on pretty much all activites, some even include passing gas! But thent hey poke a few exceptions in there.

    It gives the cops the ability to read only as far as they feel like and then plead ignorance gaining them qualified immunity. It results in a polics state where tehre might be things you're allowed to do, but you damn well better not anyway cuz you're still going to get arrested, spend time in jail/prison waiting years and years for a trial. It's how the State of Florida chills virttually all rights and freedoms, even thigns as mundane as walking and breathing... It creates both the blanket clause + the unnecessary complexity that lets a cops get out of pretty much any wrongdoing.
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
    http://edhelper.com/poetry/The_Hangm...rice_Ogden.htm

    https://gunthreadadapters.com

    "Be not intimidated ... nor suffer yourselves to be wheedled out of your Liberties by any pretense of Politeness, Delicacy, or Decency. These, as they are often used, are but three different names for Hypocrisy, Chicanery, and Cowardice." - John Adams

    Tyranny with Manners is still Tyranny.

  21. #21
    Regular Member WalkingWolf's Avatar
    Join Date
    Jul 2011
    Location
    North Carolina
    Posts
    12,278
    IMO I believe the gov/politicians made antique firearms on a different level to avoid a court ruling that would invalidate gun control. As it is now gov can point to the legality of antique firearms in most states that all people over 18 can posses. In those states with laws that put antiques in the same class as firearms it is a state issue.

    Honestly I am amazed that more people are not going with antique firearms. Keep in mind in England that antique firearms are the only handguns that the subjects can possess. So even in England they allow some form of handgun ownership, though the restrictions to posses one are a pain. And they are not allowed self defense.
    It is well that war is so terrible – otherwise we would grow too fond of it.
    Robert E. Lee
    The patriot volunteer, fighting for country and his rights, makes the most reliable soldier on earth.
    Thomas Jonathan "Stonewall" Jackson
    What separates the winners from the losers is how a person reacts to each new twist of fate.
    President Donald Trump

  22. #22
    Regular Member mellio's Avatar
    Join Date
    Mar 2009
    Location
    Central, Kentucky, USA
    Posts
    101
    Quote Originally Posted by BrianB View Post
    Over in another topic in another state's forum the conversation forked into a discussion of open carry of black powder firearms in Florida.

    The fork in that conversation began with this post: link

    The conversation was a lively and, I believe, productive one, but strayed from the topic of the OP, so I started this topic to continue it. If the you're coming in the middle go read from the link above, forward until you hit the post that directs you back here.

    My next reply on topic follows...

    With regard to the "any firearm" I tend to agree with NAL there - "any firearm" should mean "any of the items in 790.001(6)". Since the legislature said antique firearms aren't firearms, if they meant 790.053 to encompass antique firearms I believe they would have to say "any firearm or antique firearm" - otherwise they create an ambiguous statute. In criminal cases such ambiguities have to be resolved in favor of the defendant.

    I disagree with NAL when it comes to the "affirmative defense" aspect. It would be an affirmative defense if 790.001(6) did not exempt antique firearm from the definition of a firearm and if 790.053 read like this:



    Since 790.001(6) does exempt antique firearms from the definition of a firearm, and since 790.053 reads like this:



    The elements of the crime of open carrying a weapon are:

    1. The accused is a person
    2. They openly carried on or about their person any firearm or electric weapon or device

    In order to arrest for a violation of 790.053 the officer needs to have "reasonable probable cause" (I hate that term, but that's what the courts use) that the item is a firearm (or electric weapon or device but we're not talking about that here). In order to make that determination the officer needs to know what a firearm is and isn't, so he has to look at 790.001(6):



    Well, an 1858 percussion cap revolver certainly will (or is designed to) expel a projectile by the action of an explosive, so it meets the first criteria of a firearm. But then the statute says it does not include an "antique firearm" (with exceptions). So he then has to contemplate definition of an antique in 790.001(1):



    Now, in order to arrest he needs to have reasonable probable cause that the thing on my hip is not "manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof". In 99.999999% of the cases the officer handles he will have no problem having reasonable probable cause that the item in question is not an antique. In the case of the Pietta in question, only the most absolutely firearms-ignorant could have such probable cause. If the officer were able to sincerely state that he doesn't know anything whatsoever about guns, then he might be able to say he reasonably had probable cause.

    Since these guns are sold cash and carry with no ID, background check, or waiting period -- even to convicted felons -- throughout the state, clearly they are not firearms under state law -- either that or the State is turning a blind eye to a massive number of crimes on a daily basis.

    Common definition for probable cause is:



    That leaves a lot of wiggle room, but we can't twist things around here - he has to reasonably have PC that I'm guilty to arrest - which is the opposite of what you suggest - that if he's not certain it's an "antique" he should arrest.

    Again, this is all a logical exercise at this point unless someone wants to be a test case, and I'm not ready to volunteer for that just yet. I probably will go fishing while open carrying the 1858 at some point and see how that goes (since I have double insurance against arrest in that case).
    Q/d/14/06/30/ajaje7ez.jpg[/IMG][emoji9]I
    Quote Originally Posted by notalawyer View Post
    Interesting....Enjoying the discussion....it's good to see other's thoughtful, educated opinions. Keeps one sharp!

    What if 790.221 read something along the lines of:


    And there was a definition in 790.001 that read:


    Would that change your opinion?

    While I agree that is is BS, it's they way the courts will always operate. Our issue should be with the way the statutes are written.

    For example 790.01 should start off with "This section does not apply to those licensed in accordance with 790.06 . . . " and then go on to describe the proscribed activity.

    Do this in all the firearm related statutes and then the State will be forced to prove the negative as an element of the crime and, in fact, have RS/PC of the negative before a lawful stop/arrest could occur. But the Legislature will never do this, ever.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •