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Thread: OC (or concealed w/o ccw) Cap n Ball revolver?

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    Regular Member vermonter's Avatar
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    OC (or concealed w/o ccw) Cap n Ball revolver?

    The way I read it an antique or replica Cap n Ball is not a firearm under Fl law. It does fire projectiles and could be considered a weapon needing a concealed "weapon" or firearm license for CONCEALED carry. What about open carry of a Cap n Ball loaded around town as long as it is holstered, snapped and not exhibited in a threatening manner? Any case law on this? Need FL facts not opinions PLEASE. Also if legal to carry w/o license is it ok for self defense? I'm not talking felons, just someone who can't afford a CCW.


    790.001 Definitions.--As used in this chapter, except where the context otherwise requires:


    (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.

    (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.
    Last edited by vermonter; 10-22-2010 at 11:30 PM. Reason: spell

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    Quote Originally Posted by vermonter View Post
    The way I read it an antique or replica Cap n Ball is not a firearm under Fl law. It does fire projectiles and could be considered a weapon needing a concealed "weapon" or firearm license for CONCEALED carry. What about open carry of a Cap n Ball loaded around town as long as it is holstered, snapped and not exhibited in a threatening manner? Any case law on this? Need FL facts not opinions PLEASE. Also if legal to carry w/o license is it ok for self defense? I'm not talking felons, just someone who can't afford a CCW.


    790.001 Definitions.--As used in this chapter, except where the context otherwise requires:


    (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.

    (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.
    Open Carry is Legal, but you will end up in jail until they figure it out.

    The fact that a firearm is an antique firearm is an affirmative defense to the charge of carrying a concealed firearm. This means proof of it's 'antiqueness' would have to be provided to the court.

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    Regular Member vermonter's Avatar
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    So, In Florida no $117 for CCW = no way to lawfully defend yourself outside the home (except an open knife). So if you have a job, work hard, but have no car and every penny goes toward food, rent etc there is no possible way to defend yourself outside the home where you need it the most. Florida sends a clear message...... Concealed carry for the rich only (so Floirda can make money). Notice they way the won't allow non-res so you HAVE to buy their license if you move to Floirda, or visit from a state like Vermont with no home permit! Florida is ALMOST as anti gun as Texas. At least texas allows non-res although they have the most off-limit places of any state.

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    Regular Member vermonter's Avatar
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    "Open Carry is Legal, but you will end up in jail until they figure it out"

    May I add that based on the above statement those that plan open carry while fishing next month will be arrested and will have to sort it out in court?
    Last edited by vermonter; 10-24-2010 at 04:31 PM.

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    Quote Originally Posted by vermonter View Post
    So, In Florida no $117 for CCW = no way to lawfully defend yourself outside the home (except an open knife). So if you have a job, work hard, but have no car and every penny goes toward food, rent etc there is no possible way to defend yourself outside the home where you need it the most. Florida sends a clear message...... Concealed carry for the rich only (so Floirda can make money). Notice they way the won't allow non-res so you HAVE to buy their license if you move to Floirda, or visit from a state like Vermont with no home permit! Florida is ALMOST as anti gun as Texas. At least texas allows non-res although they have the most off-limit places of any state.
    You sound like a TROLL with those comments.

    You should really look at the Florida laws before making statements not based in fact!

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    Quote Originally Posted by vermonter View Post
    "Open Carry is Legal, but you will end up in jail until they figure it out"

    May I add that based on the above statement those that plan open carry while fishing next month will be arrested and will have to sort it out in court?
    You started out sounding so resonable...what happened? Mommy get mad at you for using her computer?

    You asked about open/concealed carry of antique firearms, the questions was answered, now you want to start acting like a TROLL?!

    If you do not understand the difference to a lawful act (Open carry while fishing) and an affirmative defense to an illegal act (Open carry of a firearm - while not engaged in one of the exceptions in 790.25(3)) you have no business carrying a firearm at all!

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    Regular Member vermonter's Avatar
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    Troll? I have been around the board for a quite a while my friend. Can't you tell by the tone that I am slightly unhappy that YOU have more of a right to defend yourself in Florida than I do b/c YOU have the income to afford the $117 for the license? Do you think that is fair? When I am in Vermont I am on EQUAL footing with you. I guess self-defense in Florida is not permissable for the WORKING poor. BTW I have my $27 Pennsylvania NON-Res License. Do you have a problem with my excercising my freedom of speech on here? You are the one making wild statements about being arrested for OC. Read what you wrote. To me that says those that plan to "fish off the bridge" while OC will have to prove that they were fishing to the court (post arrest). I just want an answer will I be arrested for OC or CC of an 1860 Army. I'm sure the guys that plan on fishing want the same answer....

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    Regular Member vermonter's Avatar
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    The term "firearm" does not include an antique firearm.

    According to your state law it is NOT a firearm. If I carry a copy of this HOW CAN THEY LEGALLY ARREST ME???????

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    I'll repeat myself for all the good it will do.

    There is a huge difference between a lawful act Open carry of a firearm while fishing and an affirmative defense to an illegal act Open carry of a firearm - while not engaged in one of the exceptions in 790.25(3).

    You have to provide proof that the item you are carrying that looks suspiciously like an illegally open carried pistol, is in fact an antique firearm and therefore not a illegally openly carried pistol.

    Go look up the legal definition of affirmative defense.

    Do you have a problem with my excercising my freedom of speech on here?
    Again you do not understand legal principles.

    What I have a problem with is people bitching about something and making comments while being ignorant of the subject.

    If you don't like it work to change it! But quit whining about it!
    Last edited by brboyer; 10-24-2010 at 08:54 PM.

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    Regular Member vermonter's Avatar
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    I have a problem with having to stay in an area that has druggies and hoodlums on every corner b/c the only job I can get requires me to spend some time there. I have a big problem with the fact that I have to choose between eating for the week and $117 for a license to protect my family. Don't you dare tell me to get a better job, at least I work. BTW trolls are from the anti side. So what you are saying is I have to prove in court that a cap-n-ball is an antique or replica thereof? Come on! In Vermont the cops would LAUGH at someone carrying a cap-n-ball.

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    That we have to pay for the fundamental right to bear arms is outrageous but it is a fact in Florida until we fix it.

    You will get to spend some quality time as a guest of your local county sheriff if you OC a cap and ball pistol even though you will have a defense from prosecution. Police will have plenty of probable cause to arrest.

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    Regular Member Thundar's Avatar
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    OK, so my Army 1861 replica is not a firearm in Florida. So if I open carry it, are there prohibited places besides schools and courts for open carry of an antique firearm?

    I will be visiting my folks in Port Charlotte before Christmas, and I would really like to open carry there.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    OK, so my Army 1861 replica is not a firearm in Florida. So if I open carry it, are there prohibited places besides schools and courts for open carry of an antique firearm?

    I will be visiting my folks in Port Charlotte before Christmas, and I would really like to open carry there.
    You will end up in jail!

    If you enjoy jail, then go ahead and open carry your 1861 Army outside of the clearly lawful exceptions contained in 790.25(3).

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    Quote Originally Posted by brboyer View Post
    You will end up in jail!

    If you enjoy jail, then go ahead and open carry your 1861 Army outside of the clearly lawful exceptions contained in 790.25(3).
    I agree that you will be arrested, but only because LEOs do not understand (nor care) that open carry of antique pistols is not prohibited. Antique pistols are not considered firearms according to the statutes that prohibits open carry of firearms. I've read that statute forwards, backwards and sideways. It says what it says. Still, you will get arrested. Florida is well-known as having a 'system' that railroads innocent people. Expect a hostile judiciary, prosecutor and uninformed law enforcement community.

    I believe that the best way to resolve this issue is through education (not through lone wolves carrying to make a point...they will get jacked-up big-time). Florida needs an active antique pistol carry group that 'educates' local LEOs and takes baby-steps to introduce opencarry of antiques i.e. preplanned group events. Then after getting the word out through media coverage and educating law enforcement the times, places & circumstances can be expanded. This would be a great compliment to the fledgling Florida open carry movement for modern handguns (currently limited to the few areas statorily excepted).

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    Quote Originally Posted by OC4me View Post
    I agree that you will be arrested, but only because LEOs do not understand (nor care) that open carry of antique pistols is not prohibited. Antique pistols are not considered firearms according to the statutes that prohibits open carry of firearms. I've read that statute forwards, backwards and sideways. It says what it says. Still, you will get arrested. Florida is well-known as having a 'system' that railroads innocent people. Expect a hostile judiciary, prosecutor and uninformed law enforcement community.

    I believe that the best way to resolve this issue is through education (not through lone wolves carrying to make a point...they will get jacked-up big-time). Florida needs an active antique pistol carry group that 'educates' local LEOs and takes baby-steps to introduce opencarry of antiques i.e. preplanned group events. Then after getting the word out through media coverage and educating law enforcement the times, places & circumstances can be expanded. This would be a great compliment to the fledgling Florida open carry movement for modern handguns (currently limited to the few areas statorily excepted).
    The way the law is written, it is only an affirmative defense to the charge of Open Carry of a firearm. It is not legal to open carry an antique firearm* and will always result in an arrest as you are in fact in violation of the law, until you can provide proof that the firearm is actually manufactured before 1918 or is a replica thereof.

    No need for a separate 'antique pistol' open carry movement - this would require a change to 790.25(3) by adding a subsection that states open carry of an antique firearm is lawful. Just like open carry of a firearm at home, work, hunting, fishing, etc. This will never happen because the extremely limited number of people affected will never be able to develop enough political force to make it happen.

    All we really need to do is to repeal 790.053. This is muck more likely, in fact it will be the only option for the state once lawsuits start in response to the Heller v D.C. & McDonald v Chicago decisions.

    * Outside of the statutorily excepted locations/circumstances outlined in 790.25(3)
    Last edited by brboyer; 10-29-2010 at 05:42 PM.

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    Regular Member Thundar's Avatar
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    Open Carry of Antique Firearms is a Fundamental Right, not an Affirmative Defence

    You have a fundamental right to keep and bear arms. The state of Florida has regulated the open carry of modern firearms.

    FLA code is clear. The prohibition does not include antique firearms.

    The Florida law does not appear to make the open carrying of an antique firearm an exception, it appears to exclude antique firearms from open carry regulation entirely.

    An affirmative defence is where an express exception is made to a general law. For example self defence is an affirmative defence for murder.

    Your assessment that open carry will mean trouble may be accurate, but there are federal 1983 lawsuit remedies that tend to curtail po-po intrusion on fundamental rights.

    Remember open carry of antique firearms is your right in Florida, and we all know "A right unexercized is a right lost."
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    You have a fundamental right to keep and bear arms. The state of Florida has regulated the open carry of modern firearms.

    FLA code is clear. The prohibition does not include antique firearms.

    The Florida law does not appear to make the open carrying of an antique firearm an exception, it appears to exclude antique firearms from open carry regulation entirely.

    An affirmative defence is where an express exception is made to a general law. For example self defence is an affirmative defence for murder.

    Your assessment that open carry will mean trouble may be accurate, but there are federal 1983 lawsuit remedies that tend to curtail po-po intrusion on fundamental rights.

    Remember open carry of antique firearms is your right in Florida, and we all know "A right unexercized is a right lost."
    The state of Florida has regulated the open carry of modern firearms.
    Florida Constitution Article 1, Section 8(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.
    We all understand what 'Arms' are, right? No mention of modern, antique, concealed, open, etc.

    FLA code is clear.
    Yep, open carry of firearms is illegal except for certain exceptions described in 790.25(3) - Antique firearms are not in that list.

    An affirmative defense is where an express exception is made to a general law. For example self defense is an affirmative defense for murder.
    You do not understand what an affirmative defense is...
    An affirmative defense must be asserted by showing that there are facts in addition to the ones in the indictment or information charging the defendant and that those additional facts are legally sufficient to excuse the defendant.
    HINT: See the references to indictment and defendant?

    Self defense is an affirmative defense for homicide, not murder. But it still needs additional evidence to get out of jail and have the charges dropped.

    Unlike a SD shooting where the situation may be readily apparent from the scene or witness statements, no LEO on the street will be able to tell if the firearm you are carrying illegally (Open carry is illegal) was actually made in or before 1918 (or an actual replica thereof) or not. Nor will most SAs or Judges. It will be up to an 'expert' recognized by the court to submit evidence to support that assertion.

    Your assessment that open carry will mean trouble may be accurate,
    It is.

    Remember open carry of antique firearms is your right in Florida.
    Not yet.

    but there are federal 1983 lawsuit remedies that tend to curtail po-po intrusion on fundamental rights.
    No civil rights violations would occur based on an arrest in this situation as I have explained already.

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    Regular Member turbodog's Avatar
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    Vermonter, I think you ought to go back into the Tn. forum and check on that moron kwikrnu's story of trying to get around the law with a cap and ball revolver. See how that idea is worked out for him. LOL

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    Quote Originally Posted by turbodog View Post
    Vermonter, I think you ought to go back into the Tn. forum and check on that moron kwikrnu's story of trying to get around the law with a cap and ball revolver. See how that idea is worked out for him. LOL
    I take offense to the name calling.

    I was not arrested. I was detained by cops who did not know the law. In Tennessee there is no difference between antique cap and ball firearms and firearms which use a cartridge. Texas, Florida, and Tennessee essencially have the same laws regarding the carry of handguns. If the attorney general in FL has the same opinion as the Tennessee AG the legislature can prohibit the carry of firearms as they see fit.

    Recent (11-3-2010) Tennessee AG opinion regarding prohibition of firearms.

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    Quote Originally Posted by vermonter View Post
    The term "firearm" does not include an antique firearm.

    According to your state law it is NOT a firearm. If I carry a copy of this HOW CAN THEY LEGALLY ARREST ME???????
    I don't agree, but they can arrest anyone they want.

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    Quote Originally Posted by brboyer View Post
    Open Carry is Legal, but you will end up in jail until they figure it out.

    The fact that a firearm is an antique firearm is an affirmative defense to the charge of carrying a concealed firearm. This means proof of it's 'antiqueness' would have to be provided to the court.
    I believe you are mistaken about the 'affirmative defense' status of Antique Firearms with regard to 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.

    (2) A person may openly carry, for purposes of lawful self-defense:
    (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.

    (3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
    It has already been established in the first post that according to Fla statutes:

    790.001 Definitions.--

    As used in this chapter, except where the context otherwise requires:

    (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.
    NOTE, that 790.001 establishes a SPECIFIC circumstance in which an Antique Firearm is considered to BE a Firearm. Your claim that a specific exeption must be written into 790.25 for Antique Firearms is a red herring. Unless I'm mistaken Fla operates on the English Common Law model in which that which is not specifically prohibited, is lawful.

    To sum up:

    OC of a 'Firearm' is generally prohibited by Fla Statute (790.053)

    Exceptions to this general prohibition are listed in the statutes as well (790.25)

    The term 'Firearm' is SPECIFICALLY defined FOR THIS SECTION in yet another Fla Statute (790.001)

    For the purposes of this section of Fla Statutes, an Antique Firearm is expressly and specifically NOT equated to a Firearm.

    ERGO, since FLa Statute 790.053 DOES NOT specifically include Antique Firearms in it's text, said statute DOES NOT APPLY to these items.

    Period. Full stop. End of story.

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    Quote Originally Posted by Phssthpok View Post
    I believe you are mistaken about the 'affirmative defense' status of Antique Firearms with regard to 790.053.


    It has already been established in the first post that according to Fla statutes:



    NOTE, that 790.001 establishes a SPECIFIC circumstance in which an Antique Firearm is considered to BE a Firearm. Your claim that a specific exeption must be written into 790.25 for Antique Firearms is a red herring. Unless I'm mistaken Fla operates on the English Common Law model in which that which is not specifically prohibited, is lawful.

    To sum up:

    OC of a 'Firearm' is generally prohibited by Fla Statute (790.053)

    Exceptions to this general prohibition are listed in the statutes as well (790.25)

    The term 'Firearm' is SPECIFICALLY defined FOR THIS SECTION in yet another Fla Statute (790.001)

    For the purposes of this section of Fla Statutes, an Antique Firearm is expressly and specifically NOT equated to a Firearm.

    ERGO, since FLa Statute 790.053 DOES NOT specifically include Antique Firearms in it's text, said statute DOES NOT APPLY to these items.

    Period. Full stop. End of story.
    I believe you are mistaken about the 'affirmative defense' status of Antique Firearms with regard to 790.053.
    I'm not.

    Five minutes researching case law will establish that I am correct, as always.

    In Florida v. Thompson, the Florida Supreme Court ruled:
    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.

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    I hate to restart an old thread, but if someone decides that they want to be a test case, they might as well do it with an indisputable antique such as a flint lock.

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    Regular Member WalkingWolf's Avatar
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    I would bet the OCer with the cap and ball would get arrested. No matter what the statute says it boils down to the courts, and how the judge and jury interpret the laws. Unless one has deep pockets it is not wise to become a test case. And that is the OP's reasoning for not getting a concealed permit.

    If anyone else is considering this they should at least contact the Florida Attorney General for advice on paper. Then take that advice to a gun rights advocacy group and see if they will file on it and get a decision that would possibly restore OC. It might not be the best but cap and ball is reliable man stopper if the owner is willing to spend some money on a gunsmith and learning how to load and shoot them.

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    Quote Originally Posted by brboyer View Post
    You sound like a TROLL with those comments.

    You should really look at the Florida laws before making statements not based in fact!
    Trolls comments?

    I am jobless, I do not have a job, I get $0 a month, NO unemployment, Therefore, I can not afford a CCW, which means i am banned from carrying a gun because i am poor, That is raciest, It MY RIGHT! Taking that alway because i am poor? that is RACISM!

    I back his statement,

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