AmmoLand.com - Florida’s Ban On Open Carry Creates Constitutional Problems

http://www.ammoland.com/2010/06/28/florida’s-ban-on-open-carry-creates-constitutional-problems

Florida’s Ban On Open Carry Creates Constitutional Problems


Florida Open Carry
Florida - -(Ammoland.com)- In 2008 the United States Supreme Court held that you have a right to have a handgun for self defense.

As ruled by the high court, you have “the individual right to possess and carry weapons in case of confrontation.”

That right has just been applied to the states by the latest Supreme Court ruling that also struck down a licensing scheme that made handgun ownership almost impossible in Chicago. Your right to self defense, anywhere you are legal to be, is constitutionally protected.

Every day hundreds of thousands of Floridians go about their daily activities while carrying a firearm. These people are retired or off-duty police, current or former military, and the average law abiding American citizen. They are responsible people who are trained, fingerprinted, submit to a background check, and are licensed to carry a firearm to be able to defend themselves and others should that horrible need ever arise. These people are however required to conceal their firearm at all times. That works pretty well while outside during the winter when we dress in heavier clothes and jackets but when you go inside, you want to take your coat off.

Florida is one of only seven states with wide prohibition on carrying an unconcealed firearm. This presents a huge problem in the summer heat or while engaged in many outdoor activities. There are exceptions for going to and from the shooting range, fishing, hunting and camping; but that’s about it. It is just not possible to conceal a standard handgun in most regular summer attire.

There is also the issue of licensing a constitutional right. Writing this article did not require that I apply and pay for a writer’s license. No reasonable person would argue that the First Amendment applies only to those who have been to journalism school and are employed as a member of the press.

Just as the First Amendment does not protect your write to yell “FIRE!” in a crowded theater; the Second does not give you the right to wave a gun around or threaten anyone. You have the right to carry a weapon for self defense but in Florida, you have to be licensed to carry it concealed and you can’t carry it unconcealed. Now that the Second Amendment has been applied to the states just like the First, we have an issue to solve. Privileges, like driving, can be licensed but constitutional rights cannot.

Repealing the ban on unconcealed or Open Carry will eliminate these practical and constitutional problems in Florida. It will provide relief from the summer heat for people who are carrying their concealed firearms. You will be able to dress in lighter clothes, take off your coat when you stop for lunch, or enjoy a walk in the park without having to make the choice between being defenseless and getting heat stroke. Lawful open carry would also protect our Florida Concealed Weapon/Firearm License (CWFL) from constitutional issues. The CWFL will act to license the act of concealing the firearm while repealing the open carry ban would satisfy the constitutional right of law abiding American Citizens to bear arms. Remember, “the individual right to possess and carry weapons in case of confrontation.” has been affirmed.

About:
Florida Open-Carry.org is a grass roots organization of Florida residents who endeavor to raise awareness in the community of our second amendment rights. Our primary goal is to help educate others about their right to legally open carry and advocate for repeal of the general ban on open carry in Florida. Florida is one of only seven states where open carry is generally illegal. Visit: www.open-carry.com

They will at the very least IMHO have to make concealed carry cost and license free. Maybe charging you if you want one for reciprocity?

Agreed but

I completely agree with this article but FL government at the moment is too stuborn to legalize open carry. Yes, they know the USA constitution. They know we have the right to bare arms. They still found a way around it by licensing us with CWP's. Technically we can carry weapons as long as your ready to spend $175-225 for that right.
One day we'll have the right to carry openly. I just hope to see it happen in my lifetime.

Ruger9mm1986 said:

I completely agree with this article but FL government at the moment is too stuborn to legalize open carry. Yes, they know the USA constitution. They know we have the right to bare arms. They still found a way around it by licensing us with CWP's. Technically we can carry weapons as long as your ready to spend $175-225 for that right.
One day we'll have the right to carry openly. I just hope to see it happen in my lifetime.

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In Harper v. Virginia Board of Elections, The U.S. Supreme Court noted that “a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.”

When licensing and registration fees are required to bear arms, they become tantamount to a Poll Tax and stand to deprive those of the least means of their civil right to bear arms. All too often, these are exactly the citizens who are in the direst need of a means to self defense.

StogieC said:

In Harper v. Virginia Board of Elections, The U.S. Supreme Court noted that “a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.”

When licensing and registration fees are required to bear arms, they become tantamount to a Poll Tax and stand to deprive those of the least means of their civil right to bear arms. All too often, these are exactly the citizens who are in the direst need of a means to self defense.

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This is exactly the issue, isn't it. Whether open carry bans can survive a constitutional challenge is dependent to a large extent upon the standard of review. MacDonald seem fairly clear in identifying RKBA as a fundamental right, which would indicate a strict scrutiny standard. IMHO open carry bans cannot withstand a strict scrutiny review.

The imposition of fees to exercise a fundamental right is an insurmountable hurdle that dooms the mechanism for imposition of CC licensing.

If the legislature fails to act by passing unlicensed open carry; we will be foreced to challenge the concealed permit's fees, training requirements, and prohibition for adults under 21 years of age.

I think it in everyone's best interest for Florida to pass unlicensed open carry to preserve licensed concealed carry.

Licensing is also counter to the Supreme Court's ruling in Murdoch v. Pennsylvania, which prohibits any state from charging a license fee, or tax for the exercise of a right protected by the US constitution.

"It is a license tax-a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. The fact that the ordinance was imposed indiscriminately does not save it from being unconstitutional."
"This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution. "

Thundar said:

The imposition of fees to exercise a fundamental right is an insurmountable hurdle that dooms the mechanism for imposition of CC licensing.

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CC licensing is not doomed. EXCLUSIVE licensing might be. It would seem a means of arms possession and conveyance that is unencumbered, may be accompanied by one that is.

But as a plain reading of the 2nd Amendment already makes painfully clear, some means of owning and carrying a gun must exist, free from regulation. I still don't see the part where it says 'reasonable restrictions' may be applied. I suppose the court made that 'finding' somewhere other than law... But I digress.

It seems that Licensing as an exclusivity is blatantly unacceptable. We already knew that because we can read, but now the SCOTUS said it. I doubt anything will change until someone actually CHALLENGES it. FL is a deceptively anti-gun State. Most supposedly pro-gun people in FL support the 2A under the contingency that the owner be rich and powerful, and the Government here reflects that. They do not at all perceive the 2A as a right, nor do they want it to be. FL was the first State to introduce CCW law, the idea of carrying a gun as a special privilege of the 'only ones' is VERY well entrenched. I have never met anyone with a FL CCW who called it anything other than a privilege. Some out of arrogance, some because they know it isn't a right when you have to pay, beg permission, and hide it.

Given the full faith and credit clause reciprocity will not be an issue for licenses. Currently the charge for a license violates the 14th amendment. Persons unable to pay the fee are denied their second amendment rights. It is essentially no different than the poll taxes of our father's era.

Yet there it remains.

Can someone who cannot afford the Carry Tax afford to buy justice (maybe, if you're well-connected) from the far more expensive courts?

I can't afford the permit fees. I have grounds. But I cannot pay the courts. If I could, then I could also afford the Tax, and would lose my standing...

Derp.

ixtow said:

Yet there it remains.

Can someone who cannot afford the Carry Tax afford to buy justice (maybe, if you're well-connected) from the far more expensive courts?

I can't afford the permit fees. I have grounds. But I cannot pay the courts. If I could, then I could also afford the Tax, and would lose my standing...

Derp.

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You can file in pauperis

kwikrnu said:

You can file in pauperis

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Educate me, please?

ixtow said:

Educate me, please?

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You have to fill out some paperwork saying you are poor. They'll either let you file free, reduced cost, or maybe make payments.

Fla

I have lived in Fla all my life, and I know its hot. But I'm pretty happy. Some state have no carry in restaurants (Tenn ), no carry on person, etc etc. And my CWP, 175$ for seven years, I'm OK with Fla gun laws, because we got it better then some states.

I'm sure people in China say, "I'm fine with government censorship here, because we got it better than North Korea and Vietnam."

The undue restriction of fundamental rights can not be allowed. That it could be worse doesn't mean it is constitutional.

StogieC said:

I'm sure people in China say, "I'm fine with government censorship here, because we got it better than North Korea and Vietnam."

The undue restriction of fundamental rights can not be allowed. That it could be worse doesn't mean it is constitutional.

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Hey, I'm OK with what your saying. But my opinion is, we got it pretty good in Fla. I carry a Glock 27 and its no more hotter with or with out.

Open carry and licensing of carry are separate issues. I think the licensing issue will pop up later. As far as open carry(in FL), I think its up to the legislature and not the courts. Court precedent is heavily in favor of "regulation" by the states, meaning CC can be banned as long as OC is legal(or vice versa).

Open carry and licensing of carry are separate issues.

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Yes and no, depending where one is. In Florida, open carry is prohibited, and licensing only allows concealed carry.

Since the fundamental right guaranteed by the U.S. Constitution covers both keeping and bearing of arms, the only way one could carry without a license is openly, but that's prohibited. As far as Florida goes, therefore, the only permissible way to carry is concealed, but that requires a license. Ergo, ipso facto, et cetera, and a bunch of other Latin terms, a person in Florida needs a license to exercise a fundamental right guaranteed by the U.S. Constitution.

In other states where open carry is not prohibited, and does not require a license for the carry thereof (e.g., Pennsylvania), then open carry and licensing are indeed two separate issues. But not in Florida, and not in those states where one needs a license to carry both openly and concealed.

As correct as you are, the manufacture of the notion that a Right, when Regulated, taxed, restricted, etc, is still by some stretch of the imagination a Right; the licensing requirement is not considered unconstitutional by any court.

It could cost $1000, require a forehead holster colored pink, and be available only to people who can recite the alphabet backwards in under 5 seconds. It would be considered a 'regulated right.' Which all people with an IQ above room temperture know is an oxymoron.

OC in FL, if it ever happens, will have to be legislated. The current state of Bench Legislating has redefinied what a "Right" is. We know it's a steaming load, but the courts worked damn hard to create this lie, they aren't going to reverse on themselves.

Nothing has granted government more power than fabrication of the notion that a Right can be regulated and still be a Right anymore. The majority falls for it, so it will never be undone. In FL, CWP holders have enjoyed being special and better than everyone else for a very long time. They will not relinquish that only-ones status.

As I've said many times before. I would love to be wrong. And I WILL eat every word I've said to the contrary, if it ever happens. Literally print it out and eat it.

I'm not worried. It'll never happen. FL is NJ with palm trees. That which is not actual law is enforced by social means.

Florida's CWFL has unconstitutional requirements

Florida's CWFL has unconsitutional requirements, if the only way to carry in FL is with a license, then the license must be available to ALL non-prohibited possessors.

Florida will not issue to non-immigrant aliens, yet they have access to ALL other fundamental rights.

Florida will not issue to anyone who does not reside in the U.S. so even if you are a U.S. Citizen, if you live in Canada, Europe, or anywhere else in the world, you are now disqualified by FL law from being issued a CWFL.

This would be the best way to water down the restrictions in Florida.

New Hampshire and Maine issue to anyone in the world as long as they are not prohibited by law from receiving a firearm, these states have it right (besides Vermont). Florida and most licensing states have unconsitutional residency requirements and all that.