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Thread: Whos gonna file suit to force Open Carry in Florida?

  1. #1
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    Whos gonna file suit to force Open Carry in Florida?

    anyone planning on starting a suit

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    Campaign Veteran StogieC's Avatar
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    I think this would be best to try to handle legislatively first.

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    maybe...but it would be an awesome decision to be persuasive in places like New York, Jersey etc....

  4. #4
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    Cool

    who's filing suit in Florida? Florida Open Carry i hope. Wisconsin Carry is just a might buisy, it being summer and all.

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    Campaign Veteran StogieC's Avatar
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    Here's the catch 22. You can't challenge the prohibition on open carry without having standing to do so. You don't get standing without having your rights actively infringed when you try to exercise them. So basically, you have to go get yourself arrested for open carry to file a case. Your CWFL will also be revoked while you wait for it to go through the courts.

    Heller and McDonald were refused, in writing, their permits to have a handgun in the home by DC and Chicago respectively. This gave them proper standing to attack the ban on having an operable handgun in the home. That's why the scope of the cases was so limited.

    Now, you could perhaps gain standing to challenge licensing fees and training requirements by submitting an application for a CWFL without the fee included or any proof of training. Fees and training requirements for other rights have been reliably found to violate the equal protection clause of the 14th Amendment. An 18 year old could submit the application and also challenge the 21 year age restriction.

    The legislative remedy to protect license fees and training requirements for concealed carry would presumably be to allow unlicensed open carry to satisfy the right to bear arms without violating equal protection. But this is a legislative remedy.

    The courts can't do it unless you go and violate the ban on open carry and get it struck down by the courts. There is also the possibility that the court will still convict you for open carry and just rule the concealed license fees and training requirements unconstitutional.
    Last edited by StogieC; 07-02-2010 at 10:27 AM.

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    Quote Originally Posted by StogieC View Post
    The courts can't do it unless you go and violate the ban on open carry and get it struck down by the courts. There is also the possibility that the court will still convict you for open carry and just rule the concealed license fees and training requirements unconstitutional.
    Although the courts have indicated that 'reasonable' regulation of the right is constitutional, your defense should be Murdock v. commonwealth of PA, to wit "The power to tax the exercise of a privilege is the power to control and suppress its enjoyment.... A State may not impose a charge for the enjoyment of a Right granted by the federal constitution.... Thus it may not exact a license tax for the privilege of carrying on interstate commerce.... 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."

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    Campaign Veteran StogieC's Avatar
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    I agree that you can't have anything tantamount to a poll tax or voter literacy test to carry.
    But if your CWFL is free, does not have a training requirement, and is available to all law abiding adults over 18 who have not been adjudicated mentally incompetent; can you be restricted to concealed carry only? I am not aware of any jurisprudence on the issue.

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    Quote Originally Posted by StogieC View Post
    Here's the catch 22. You can't challenge the prohibition on open carry without having standing to do so. You don't get standing without having your rights actively infringed when you try to exercise them. So basically, you have to go get yourself arrested for open carry to file a case. Your CWFL will also be revoked while you wait for it to go through the courts.
    Correct, there doesn't seem to be a way to get standing to challenge the open carry ban without getting arrested first. However, if you want to get standing to challenge the concealed weapons permit requirement (without getting arrested for not having a valid permit in the first place), send in your otherwise complete permit application without a check. You will get a refusal letter and that is all you will need (I believe) to satisfy 'standing'.

    This won't allow you to challenge the open carry ban directly, BUT it will allow you to challenge the licensing fee and possibly the licensing requirement itself. I believe that the absence of unregulated open-carry makes the license and fee requirement particularly vulnerable to a 2A challenge because there is no other viable option available to exercise your right to bear arms. A 'sympathetic' judge will have to either invalidate the concealed carry permit requirement or invalidate the open carry ban (either way a big win).

    If you don't mind getting arrested for open carry, then I suggest open carrying an antique firearm (must be a replica or an original*). If you read the statutes closely, the ban on open carry seems to only apply to modern firearms and this may give you some legal wiggle room.

    *I believe I read somewhere a court decision in Florida that concluded that black powder arms of modern design (i.e. not a replica of an antique) didn't qualify as antiques (Florida has a different definition than the Federal definition of antique arms).

    I think that the legislative approach is the best approach, however.
    Last edited by OC4me; 07-02-2010 at 04:36 PM.

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    Founder's Club Member ixtow's Avatar
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    I could and would volunteer for one to gain standing in multiple methods described here.

    But as with Chicago and DC, there needs to be big backing and big dollars because no one, especially myself, can afford that sort of thing.

    Justice and The Courts are available exclusively to the insanely wealthy. Everyone else just rots in jail.

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    Quote Originally Posted by DKSuddeth View Post
    Although the courts have indicated that 'reasonable' regulation of the right is constitutional, your defense should be Murdock v. commonwealth of PA, to wit "The power to tax the exercise of a privilege is the power to control and suppress its enjoyment.... A State may not impose a charge for the enjoyment of a Right granted by the federal constitution.... Thus it may not exact a license tax for the privilege of carrying on interstate commerce.... 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."
    Not to sure this will work...Unless SCOTUS comes up with a definitive ruling on 2A on the right to "bear" arms, this will be a tough sell.

    I am not up on the contitution for florida, I barely have enough time to read the one in Missourri, but it is clear that most states have the authourity to enact "statutes" for each states bill of rights.

    Here in Missouri, we enacted the Concealed Carry Act....it was a "statute" to Sec 23 of our constitution. The statute regulated how a CCW was to be issued.

    I guess you could argue, that a "statute" is just an add-on to the "constitution" therefore it whould fall under the "rights" category....I just don't see it.

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    Quote Originally Posted by zekester View Post
    Not to sure this will work...Unless SCOTUS comes up with a definitive ruling on 2A on the right to "bear" arms, this will be a tough sell.

    I am not up on the contitution for florida, I barely have enough time to read the one in Missourri, but it is clear that most states have the authourity to enact "statutes" for each states bill of rights.

    Here in Missouri, we enacted the Concealed Carry Act....it was a "statute" to Sec 23 of our constitution. The statute regulated how a CCW was to be issued.

    I guess you could argue, that a "statute" is just an add-on to the "constitution" therefore it whould fall under the "rights" category....I just don't see it.


    they had that power...but now the 2A over rules any state constitution on the matter...

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    Open carry will likely be legalized if FL wants to keep the concealed license fees rolling in.
    Last edited by Vector; 07-17-2010 at 09:43 PM.

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    Quote Originally Posted by Vector View Post
    Open carry will likely be legalized if FL wants to keep the concealed license fees rolling in.
    ????

    Do you mean "NOT likely be legalized" ?

    Have seen no evidence that OC impacts the income from permits - most people that OC want the option to do either according to circumstances.

    A few states only allow OC with a permit, no reason that Florida couldn't go that route, although that would not be my preference.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    Murdoch V. Pennsylvania - Established that no state may tax, charge fees, etc for constitutionally protected rights

    Keller V. D.C.- Established right to handguns as part of 2A

    McDonald V. Chicago - Incorporated 2A to the states.

    Currently in our great state, the only way to exercise the right to bear arms is to pay $50+ for a class, and $117 for the permit. In order to not violate the law, FL must come up with a free way to exercise 2A. CCW fee is nothing short of a poll tax. FL will likely never stop charging for CCW, but free OC is a viable option. At least if we can remove the New-yorker scum from office.

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    There are methods to gain standing w/o being arrested. How about refusing to fingerprint, refusal to submit picture, refusal to pay fee, or failure to pass safety class?

    I filed a lawsuit against Tennessee beacuse they took my permit and I have no criminal record. In TN the law criminalizes all carry of loaded firearms with a defense of the law being the possession of a handgun carry permit. I wonder what the law is in FL, because I don't understand how any State can have a blanket prohibition on the carry of a loaded handgun w/o violating the Second Amendment.

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    That's all well and good, but im sure most of us here already have the CCW permit.

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    Quote Originally Posted by Vector View Post
    That's all well and good, but im sure most of us here already have the CCW permit.
    Wait until it expires and refuse to pay the renewal fee.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by kwikrnu View Post
    Wait until it expires and refuse to pay the renewal fee.
    You may want to read what I wrote in post #5 here http://forum.opencarry.org/forums/sh...=1#post1298711

    Easy enough to challenge the current license by submitting an application and having it denied. A court could strike down the license fee, training requirements, and 18-20 year old age restriction.
    Only the legislature can repeal the open carry ban. A court could find the ban unconstitutional but to get standing for that case, someone would have to be arrested for violating it.
    Last edited by StogieC; 07-21-2010 at 10:18 AM.

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    Quote Originally Posted by StogieC View Post
    You may want to read what I wrote in post #5 here http://forum.opencarry.org/forums/sh...=1#post1298711

    Easy enough to challenge the current license by submitting an application and having it denied. A court could strike down the license fee, training requirements, and 18-20 year old age restriction.
    Only the legislature can repeal the open carry ban. A court could find the ban unconstitutional but to get standing for that case, someone would have to be arrested for violating it.
    I think what is going to happen in States like Tennessee, Florida, and Texas where handgun carry is illegal unless you have a permit is that the permit process is going to be challenged as unconstitutional. It will be found that the permit system is a violation of the 2nd amendment. These States will change their laws to allow for unpermitted open carry. That will allow them to keep the system in place for permitted concealed carry because of the revenue it generates and the fact that they do not want to give up power. They'll also allow permitted carriers into more sensative places.

    So, by challenging the laws for permitted carry you'll get open carry.

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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by kwikrnu View Post
    They'll also allow permitted carriers into more sensative places.
    The Federal GFSZ law only allows people with state issued permits as an exception, for example.

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    Regular Member Mas49.56's Avatar
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    Well my permit does not expire until 2016. That's a long time to wait to sue. When does the next session of the state government start?

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    We're meeting with various state legislators over the next few months to find bill sponsors and supporters.

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    Regular Member Rich7553's Avatar
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    Quote Originally Posted by StogieC View Post
    We're meeting with various state legislators over the next few months to find bill sponsors and supporters.
    Rep. Kreegel's office has been helping me with a Lee County ordinance/state preemption issue.

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    Question: Is the goal to have FL go to unlicensed open carry or simply change the CWP to also allow open carry?

    For unlicensed carry, I would agree the Murdock case would come in handy.

    But, if you look at the cases currently filed by Alan Gura, the state gets to pick between unlicensed/shall-issue open/concealed/both. Since FL has chosen shall-issue CC, I don't see the Federal Courts(or state court) as able to do anything. You'll have to get the legislature to change the law.Even if you did get the permit struck down,the state could still "regulate" the manner in which the firearms are carried.

    As far as standing to sue, if FL's application asked for the reason you want a permit(I can't remember if they do or don't), you could put down "To carry openly for self-defense" and see what they do. If they deny you, you'd have standing I presume. I say that because in the Palmer v. DC case, Gura's plantiffs put down on the handgun registration forms that they "Intended to carry in public for self defense." That way they wouldn't need to be arrested for standing. But again, I don't think a court challenge to open carry itself will work right now at least.

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    Quote Originally Posted by press1280 View Post
    if you look at the cases currently filed by Alan Gura, the state gets to pick between unlicensed/shall-issue open/concealed/both. Since FL has chosen shall-issue CC, I don't see the Federal Courts(or state court) as able to do anything. You'll have to get the legislature to change the law.Even if you did get the permit struck down,the state could still "regulate" the manner in which the firearms are carried.
    What happens when the State suspends or revokes a permit w/o a hearing? Is that due process? Do you have a right to hearing?

    What happens when the State suspends, revokes, or fails to issue a permit to a law abiding citizen? Why should a law abiding citizen be denied his rights?

    The States will never get rid of permitted carry. It is a money maker. If forced they'll allow open unpermitted carry which they'll regulate and permitted carry which they'll regulate, but not as much. This will give an incentive for people to get a permit and keep money coming into the system.

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