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Thread: Thinking About Suing Florida Over Open Carry

  1. #1
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    I'm a lawyer living in Florida but a member of the bar of another state. Florida has better weather than that other place. As far as Florida is concerned, I'm not a lawyer. Yippee! I can speak my mind here and discuss issues like a normal human being.

    As I think about Florida's lack of open carry, grounds for a suit occur to me.

    Florida's Constitution reads:

    "(a)The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Art. 1 Sec. 8.

    In Florida, one can bear arms after a CCW permit is obtained. That's fine as far as it goes. A permit reflects a superior application of rights and heightened qualifications on the part of the applicant. I analogize it to free speech. One can stand on a milk crate and speak on topics of the day for free, but one needs a permit to run a television station.

    As a tv station is to free speech, a permit is to bearing arms. But here is the troubling matter. With speech, one gets to stand on the milk crate on the corner and expound without a permit or a fee. This is the basic application of the right. What, however, is the basic aplication of bearing arms? What is the non-permit, basic, ability to bear arms we have as a matter of right and recognized in our Constitution?

    If there is no bearing of arms but for a permit, then there is no right, as a right is an action one can take, at will, without application to any other person. If the only bearing of arms comes with a permit, then one doesn't have a right.

    I plan to ask the court what is the non-permit, basic, ability to bear arms? What is that basic bearing of arms guaranteed by the State Constitution? What is my milk-crate-on-a-corner right to bear arms?

    I'm envisioning a suit in state court brought on Florida's Constitution. As a pro se plaintiff, I'm qualified to draft my own pleadings, and not being a lawyer under Florida law, I can actually speak the truth, for a change.

    If anyone has a dispositive cite on point, please post it. Apologies if this has been previously discussed.

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    Regular Member rvrctyrngr's Avatar
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    While I agree with you that FL should allow OC (see avatar), FL does have SOME provisions for non-licensed bearing of arms.

    SeeFSS 790.25Lawful ownership, posession and use of firearms and other weapons...

    Paragraph three spells out these provisions. 790.053 (OC prohibition) and 790.06 (Concealed Carry) do not apply to the instances listed in this paragraph.

    Florida case law supports that unlicensed OC or CC is not illegal in the instances listed.

    The state seems to be living up to the letter of the Constitution. We can bear arms, and they can regulate, by law, how we bear them.

    ETA: Sorry, can't seem to get the link to post correctly.
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    I'm a lawyer living in Florida but a member of the bar of another state. Florida has better weather than that other place. As far as Florida is concerned, I'm not a lawyer. Yippee! I can speak my mind here and discuss issues like a normal human being.
    Are you insinuating that lawyers speak with forked tongue? :what:

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    Not sure I follow you.
    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.

    This statute completely excludes any and all open carry and extinguishes the right. In my Complaint, I would make citation to this statute in support of my argument.

    rvrctyrngr wrote:
    While I agree with you that FL should allow OC (see avatar), FL does have SOME provisions for non-licensed bearing of arms.

    SeeFSS 790.25Lawful ownership, posession and use of firearms and other weapons...

    Paragraph three spells out these provisions. 790.053 (OC prohibition) and 790.06 (Concealed Carry) do not apply to the instances listed in this paragraph.

    Florida case law supports that unlicensed OC or CC is not illegal in the instances listed.

    The state seems to be living up to the letter of the Constitution. We can bear arms, and they can regulate, by law, how we bear them.

    ETA: Sorry, can't seem to get the link to post correctly.

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    Some certainly do. The more troubling lament is that judges forbid lawyers from speaking openly and honestly about the government. A lawyer drafts his pleadings under a requirement to accept the legitimacy of the entire governmental apparatus and to speak no ill of the governmental institutions.

    Task Force 16 wrote
    Are you insinuating that lawyers speak with forked tongue? :what:

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    smoking357 wrote:
    Not sure I follow you.
    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.

    This statute completely excludes any and all open carry and extinguishes the right. In my Complaint, I would make citation to this statute in support of my argument.

    rvrctyrngr wrote:
    While I agree with you that FL should allow OC (see avatar), FL does have SOME provisions for non-licensed bearing of arms.

    SeeFSS 790.25Lawful ownership, posession and use of firearms and other weapons...

    Paragraph three spells out these provisions. 790.053 (OC prohibition) and 790.06 (Concealed Carry) do not apply to the instances listed in this paragraph.

    Florida case law supports that unlicensed OC or CC is not illegal in the instances listed.

    The state seems to be living up to the letter of the Constitution. We can bear arms, and they can regulate, by law, how we bear them.

    ETA: Sorry, can't seem to get the link to post correctly.
    FL 790.25 would be the "Except as otherwise provided by law"

    790.25 Lawful ownership, possession, and use of firearms and other weapons.
    --


    [snip]

    (3)LAWFUL USES.--The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

    [snip]

    (h)A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;

    [snip]

    (n)A person possessing arms at his or her home or place of business;


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    Hotshot718 wrote:
    smoking357 wrote:
    Not sure I follow you.
    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.

    This statute completely excludes any and all open carry and extinguishes the right. In my Complaint, I would make citation to this statute in support of my argument.

    rvrctyrngr wrote:
    While I agree with you that FL should allow OC (see avatar), FL does have SOME provisions for non-licensed bearing of arms.

    SeeFSS 790.25Lawful ownership, posession and use of firearms and other weapons...

    Paragraph three spells out these provisions. 790.053 (OC prohibition) and 790.06 (Concealed Carry) do not apply to the instances listed in this paragraph.

    Florida case law supports that unlicensed OC or CC is not illegal in the instances listed.

    The state seems to be living up to the letter of the Constitution. We can bear arms, and they can regulate, by law, how we bear them.

    ETA: Sorry, can't seem to get the link to post correctly.
    FL 790.25 would be the "Except as otherwise provided by law"

    Exactly my point. There is no non-permit bearing.

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    Regular Member rvrctyrngr's Avatar
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    Exactly my point. There is no non-permit bearing.
    Yes, there is. I'll try again.

    790.053 prohibits OC.
    790.06 allows for licensed CC.

    790.25 p(3) lists exceptions where 790.053 and 790.06 Do Not Apply, as Hotshot718 listed above:

    (3)LAWFUL USES.--The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

    (h)A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;

    (n)A person possessing arms at his or her home or place of business;


    The OC prohibition and CC license requirements DO NOT APPLY to the above instances. Meaning you can OC/CC in these instances without a license.

    These are FL's 'non-license' provisions for the bearing of arms, since the prohibitions for bearing arms (790.053 and 790.06) do not apply in these instances.

    Scant? Absolutely. But they do exist.

    Director,
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    Detached reflection cannot be demanded in the presence of an uplifted knife.
    -Justice Oliver Wendel Holmes
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    Ahem, on the sidewalk on the street outside my office, what is my basic, non-permit, right to bear arms?

    Admitting a right to bear arms on my own property is nonsense, because the state has no jurisdiction over such matters. Admitting open carry while hunting is equally nonsensical.

    What is the basic, non-permit, right to keep and bear arms in Florida on the highways, byways, roads, lands, paths and ways of this State?

    Answer: there is none, so the right has been extinguished.

    rvrctyrngr wrote:
    Exactly my point. There is no non-permit bearing.
    Yes, there is. I'll try again.

    790.053 prohibits OC.
    790.06 allows for licensed CC.

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    While i miss the the perpetual 'summer time' feel that Florida has: I am SO happy I moved from there in regards to OC. Horrible, horrible, horrible! I wear my two-tone on my hip to the grocery store, Walmart, Gas station, in-laws, camping, hiking, sleeping...etc... No Friction from anyone, ever!

    Every blue moon a citizen (like you and me), wll ask me if I'm a cop, after they find out im not: They just get all enthusiastic about thier own OCing possibilities!

    Utah is great. Its legal to (Without a Permit) to walk the State St. with a slung AR-15 (So long as its not breech loaded)

    Ya poor FL residents, i TRULY feel badly for you.

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    Regular Member rvrctyrngr's Avatar
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    Oh, just rub it in, why don't ya?

    Hopefully, we'll be able to OC again here, one day soon(ish).
    Director,
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    rvrctyrngr wrote:
    Oh, just rub it in, why don't ya?

    Hopefully, we'll be able to OC again here, one day soon(ish).
    lolz - yea: sorry about braggin'

    I just can't stop thinking about all the times my wife and I tried to make it from Kendall, to Downtown via metro rail to get to Bayside...scary stuff. We seemed to ALWAYS get approached by the crazy ones...plenty of negative experiences.

    I always kep on eye on this FL forum, TRUST me guys: I'm rootin' for ya's!

    PS- Come to Utah! They speak English here! Not like the "Animal Con Ropas!" in South Miami!

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    Regular Member rvrctyrngr's Avatar
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    It's all good...

    Trust me. I live about as far away from Norte Cuba as is possible and still be in FL. I don't speak Spanish, but my Bosnian is coming along quite nicely, thanks.

    Actually, Utah is one of the few state other than FL in which I would consider living.
    Director,
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    ProtectedBy9mm wrote:
    rvrctyrngr wrote:
    Oh, just rub it in, why don't ya?

    Hopefully, we'll be able to OC again here, one day soon(ish).
    lolz - yea: sorry about braggin'

    I just can't stop thinking about all the times my wife and I tried to make it from Kendall, to Downtown via metro rail to get to Bayside...scary stuff. We seemed to ALWAYS get approached by the crazy ones...plenty of negative experiences.

    I always kep on eye on this FL forum, TRUST me guys: I'm rootin' for ya's!

    PS- Come to Utah! They speak English here! Not like the "Animal Con Ropas!" in South Miami!
    Ahh, but it 's sunny andin the upper 70'shere :celebrate

    and it's like, what, 37 there? :shock:



    Just sayin' :P

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    I think that a challenge is ripe, even more so once the 14th Amendment incorporation issue is settled (in our favor).

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    I think any court will outright run from the Federal RKBA. A state court can't run from the State Constitution, so a court will just lie and find some grounds for dismissal.

    Sadly, I think so many permit holders like being "special," and don't truly like full RKBA.

    OC4me wrote:
    I think that a challenge is ripe, even more so once the 14th Amendment incorporation issue is settled (in our favor).

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    smoking357- I don't think you'd get anywhere, but I'd still like to see you try. The serious effort has to start somewhere...


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    I thinka good start would be researching how the Florida legislature EXTINGUISHED the right to keep and bear arms by changing the state constitution,converting what was once a right into a privilege.

    How can the constitution say that there is a RIGHT, but the only way to exercise it is by applying for a permit - thus rendering it a privilege.

    IMHO, only by understanding theconversion processcan one truly move forward with challenging the contradictory statement made in the state constitution.

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    Regular Member rvrctyrngr's Avatar
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    Here's a good starting point. Brief history of how 790.06 and 790.053, as we now know them, came into being.

    http://www.saf.org/LawReviews/Getchell1.htm
    Director,
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    "
    III. FLORIDA'S PRIOR LAW
    Article I, section 8 of the Florida Constitution states that "[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law."[76] The regulation of "the manner of bearing arms" is set forth in chapter 790, Florida Statutes.[77]"


    Isn't the addition of:-

    "except that the manner of bearing arms may be regulated by law"

    Breach the Second part of the 2nd amendment ? in that it tells people how they can "bear arms" ???

    "the right of the people to keep and bear Arms, shall not be infringed."


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    What is interesting is that only the 'manner' of bearing may be regulated, not 'when' , 'whether'or 'if' a citizen can carry.

    So a simple reading of the FL Constitution would be that the State can tell you 'how' (i.e. 'open' or 'concealed') to carry but not 'when', 'where' or 'if' since none of these restrictions fall underthe 'manner' of exercising that right.

    In my opinion, forcing Citizens to get a permit (absent permit-less OC as an alternative) is unconstitutional. The gun-free zones also have no justification under the 'manner' exception either. Sames goes for the fees, background checks, mandatory training (whether a good idea or not), etc. The state could easily provide free voluntary training as an alternative.

    Just my .02!

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    Smoking 357, I wish you all the best. I've been CCWing for 20 years in this state and would love to quit worrying about concealing my pistol.

    Keep us up to date on your progress.

    John

    Viera

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    Maybe I am being ultra simplistic here, but if you look carefully at the reading of our Second Amendment (US Constitution of course) the forefathers make no mention of bearing arms openly, concealed, or otherwise. We basically have the right to Bear Arms - period in any manner to which we desire. I don't see how states, counties, townships, cities, or any other grand dutchies have the right toslap together restrictions of any sort which are directly inconflict with the Constitution.

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    In another thread (http://opencarry.mywowbb.com/forum17/20492.html), I brought up that OCing with an'antique firearm' in Florida still appears to be legal (layman's reading of the relevant statutes).

    Might make for an easier test case which could lay some goodgroundwork towarda subsequent legal challenge.

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    targettek wrote:
    Maybe I am being ultra simplistic here, but if you look carefully at the reading of our Second Amendment (US Constitution of course) the forefathers make no mention of bearing arms openly, concealed, or otherwise. We basically have the right to Bear Arms - period in any manner to which we desire. I don't see how states, counties, townships, cities, or any other grand dutchies have the right toslap together restrictions of any sort which are directly inconflict with the Constitution.
    That's because we can read and we have common sense.

    Politicians hate that. They like to pretend we don't know how to read, and that common sense is the opposite of common sense. Gets in the way of their power grabs otherwise...
    "The fourth man's dark, accusing song had scratched our comfort hard and long..."
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