Results 1 to 8 of 8

Thread: How to kill Florida's OC Ban in court! (long read)

  1. #1
    Regular Member
    Join Date
    Jan 2009
    Location
    Northwest Kent County, Michigan
    Posts
    757

    How to kill Florida's OC Ban in court! (long read)

    The Second Amendment Foundation and other grass-root gun-rights groups have supported a great many lawsuits which are presently in the works that will have a positive impact on the future of open carry in Florida. One important lawsuit is the Dearth Case in which a United States citizen, who is not a physical resident of the United States (i.e. he lives overseas), is challenging the Federal Law that prevents expatriate American citizens from purchasing firearms while they are in this country. Another case is the Peterson case in which a Denver, CO law, which prohibits law-abiding non-resident U.S. citizens from legally carrying, is being challenged

    How can this benefit Florida’s open carry movement? Well these cases are strategically attacking existing gun control laws that prohibit law-abiding citizens from exercising their Second Amendment Rights based solely on residency (i.e. geography). In Dearth's case, he cannot complete a Federal Form 4473 in order to purchase a firearm because the form asks for a state of residency, and since he doesn't have one, he is effectively prohibited from purchasing a firearm (in other words 'banned'). Likewise, in the Peterson case, the Plaintiff faces a similar complete 'ban'. The key to these cases is that the plaintiffs are totally prohibited from exercising a fundamental right. Such legal positioning cleverly avoids a lot of distracting legal wrangling over the level of scrutiny to be applied since the Supreme Court has already ruled in Heller that an out-right ban on an individual's exercise of his/her Second Amendment right is impermissible. This puts Dearth and Peterson in a similar legal situation to the original Heller case. Lower Federal courts will be hard-pressed to pen a ruling inconsistent with Heller since the basic facts (i.e. law-abiding U.S. citizens facing a complete ban) are almost identical.

    So now back to Florida law. Florida law outright bans the carry of personal firearms (in most situations). Florida law provides an exception to the ban for United States citizens who obtain a license to carry concealed (either issued by Florida, or a state license honored by Florida). There are no exceptions. This isn't a problem for Americans who reside within the United States, but Florida's law has a little-known Achilles Heal in that the State of Florida also requires license holders to be a U.S. resident as well. In other words, Florida will not issue a license (nor recognize a license issued by any state) to any American citizen unless they physically reside within the United States [Florida Statute 790.06(2)(a)]. Legally speaking, this sets up the same unconstitutional 'ban' on the exercise of the Right that Heller suffered and that Dearth and Peterson are currently litigating. It is important to understand that if Dearth wins his case, it is not only expatriate Americans who will then be able to purchase handguns in ANY state (regardless of their residency, but ALL Americans benefit in that they will also be able to buy handguns in any state (not just their own state of residence). Likewise, if Peterson wins, it opens the doors to true national carry. But we need split decisions across two or more Federal Circuits to entice the Supreme Court to take up this obscure residency issue. If Florida's open-carry ban is successfully challenged by an expatriate American Citizen (because he/she cannot qualify for a concealed carry license) then the statutory prohibition against OC is effectively removed for ALL U.S. citizens 'within' Florida. If the Supreme Court agrees, then OC is the law of the land for all Americans in ALL U.S. States. This is a very important point to note ... plaintiffs do matter! SAF and other groups know this fact and that is why they are taking on such seemingly fringe 2A legal battles such as the Dearth and Peterson cases, which admittedly at first glance only seem to benefit a very small group of Americans i.e. the relatively few number of citizens who suffer from a residency-related prohibition.

    I've thought a lot about challenging the U.S. residency requirement of Florida's concealed carry law. The case may be winnable (on equal protection grounds) but in the end we'd only be incrementally improving Florida’s concealed carry law by removing the U.S. residency requirement (which wouldn't be a benefit to all Americans, like in the Dearth case). However, the same legal strategy applies equally well if directly challenging Florida's open carry ban. Therein lies the opportunity.

    This is why I came to the conclusion that attacking Florida's statutory prohibition on open carry would be a much better target. True, the open carry ban affects all U.S. citizens, but only expatriate Americans are statutorily prohibited from exercising both concealed and open carry. It is likely that a court may reason that if a law-abiding expatriate American citizen is unable to carry concealed then there must be at least an alternative legal avenue for him/her to exercise that right, i.e. the ban on open carry must be unconstitutional in the case of expatriate American citizens since they can't qualify for a concealed carry license.

    In other words, in order for the ban on open carry to be cleanly attacked, a plaintiff would have to demonstrate that they had no other legal option to carry. This situation exists in Florida but only for non U.S. resident Americans since, true expatriates, by definition, do not have U.S. residency.

    The ideal Plaintiff would be a U.S. citizen, whose long-term physical residence is located in Canada and who regularly spends a minority of the calendar year in Florida (since a minority presence is not enough to ‘legally’ claim U.S. residency).

    It is important to note that the Plaintiff must not challenge Florida’s concealed carry licensing scheme’s U.S. residency requirement (even though it is silly policy and vulnerable to a challenge). In fact, the Plaintiff should take the legal position (solely for purposes of the lawsuit) that she/he is positively not challenging the U.S. residency requirement of Florida’s concealed carry act. Doing so stinks but it in no way legitimizes concealed carry regulation – it is just something that the court needs to hear the Plaintiff's Attorney adamantly say in order to prevent the judge and defendant (i.e. the State) from attempting to muddy up and eventually derail the case.

    Taking such a legal tact should result in a clean Second Amendment issue as to whether or not a complete ban on carrying is constitutional (the case must not be ‘complicated’ by equal protection or other legal arguments). A direct swipe at Florida’s open carry statute is to be the object of the suit, since it is ‘the’ legal obstacle standing in the way of a certain class of law-abiding citizens (i.e. expatriate Americans) from exercising their Second Amendment Rights within the State of Florida.

    I hope that my little essay raises a few eyebrows and possibly leads to a legal action plan. Please watch the Dearth and Peterson cases closely.

    One final note, we all know that the Supreme Court has not yet held that bearing personal arms outside the home is covered by the Second Amendment. However, it is only a manner of time before SCOTUS answers that very question (indeed Scalia all but said that carrying outside the home was part of the right). In the worst case, even a loss at the federal circuit can prove useful (indeed it may be necessary) as it would potentially highlight a split amongst the Federal circuits, which is often a prerequisite for the Supreme Court to hear a case. So even an adverse holding by the Federal Appeals court would be helpful to our cause. However, if the eventual Dearth and Peterson decisions are favorable, this plan to kill Florida’s open carry statute stands a decent chance.

    Anyway, I'm not looking to be a primary plaintiff in this case (although I do qualify as an expatriate American). It would be much better to find a Plaintiff that resides in Canada who can more easily travel to Florida on short notice if required for court appearances. I'm in Thailand, much too far anyway. I'll just watch from the sidelines.

    No matter what happens in the Florida legislature (other than permitless open carry or Constitutional carry - neither of which are currently on the table), the Florida open carry ban remains vulnerable because it sets up a total prohibition on the exercise of a Right (if only for expatriate Americans) of the same type that the Supreme Court found unconstitutional in the Heller case.

    Thankfully, it doesn’t really matter if such a prohibition affects only a very small number of law-abiding expatriate citizens (as opposed to all Americans), the law can be struck down regardless. In other words, it is important to remember that striking down the open carry ban in order to allow a few expatriate citizens the ability to exercise the Right to open carry effectively strikes down the same open carry ban for everyone else! That is the prize! This is achievable providing some outside-the-box thinking is applied and you have the right plaintiff.

    Funding is always a problem, but just in case some of you have been contemplating possible legal avenues (as opposed to just legislative solutions) this open letter to the Florida Second Amendment Rights community is intended to serve as food for thought and hopefully action.

    David M. Bennett
    Udonthani, Thailand
    newbegin4 [you know what goes here] hotmail.com

    See:

    Dearth v. Holder http://www.comm2a.org/index.php?opti...1968&Itemid=42
    Peterson v. Garcia http://www.denverpost.com/coloradoco...ts/ci_18271171
    Last edited by OC4me; 06-22-2011 at 07:17 PM.

  2. #2
    Regular Member 77zach's Avatar
    Join Date
    Feb 2007
    Location
    Marion County, FL
    Posts
    3,005
    Very interesting. I don't see how the expatriate thing helps that much though. Current Fl law is already, without question, contrary to the Fl constitution. The supreme court of Fl has also already given all white people permitless carry in 1941, which is now ignored. The state could say that you have to carry in a holster. It may even be constitutional to ban open carry, as long as there is no permit requirement to carry concealed. Such would be too much of a stretch, but the judges making the decisions will be biased against us, and the word "manner" will give their evil creativity enough room. The government's courts are evil in the extreme, the system is set up to maintain tyranny, and so I don't see the state ruling against itself.

    Getting the legislature to cross out 'briefly' is probably the only realistic chance we have. There just isn't enough $ to fund a failed expedition through the government's courts.
    “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.

  3. #3
    Regular Member crashnjax's Avatar
    Join Date
    Feb 2011
    Location
    Jacksonville, Florida, United States
    Posts
    156
    Quote Originally Posted by 77zach View Post
    Very interesting. I don't see how the expatriate thing helps that much though. Current Fl law is already, without question, contrary to the Fl constitution. The supreme court of Fl has also already given all white people permitless carry in 1941, which is now ignored. The state could say that you have to carry in a holster. It may even be constitutional to ban open carry, as long as there is no permit requirement to carry concealed. Such would be too much of a stretch, but the judges making the decisions will be biased against us, and the word "manner" will give their evil creativity enough room. The government's courts are evil in the extreme, the system is set up to maintain tyranny, and so I don't see the state ruling against itself.

    Getting the legislature to cross out 'briefly' is probably the only realistic chance we have. There just isn't enough $ to fund a failed expedition through the government's courts.
    Well then the problem not only being Corrupted Politicians but also Judges who do not uphold the Constitution and Law they sworn to uphold in the 1st place. My job when elected to FL State Senate District 1 will be to eliminate laws instead of creating new ones, In order to restore Open carry for all Legal Americans.
    John Strifler for FL State Senate District 1 for 2012
    crashnjax@att.net
    crash.jax_fl on yahoo
    johnstrifler4senate.proboards.com

    Political advertisement paid for and approved by John p. Strifler, no party affiliation, state senate

  4. #4
    Founder's Club Member Jojo712's Avatar
    Join Date
    Apr 2011
    Location
    Miami, FL
    Posts
    201
    Quote Originally Posted by OC4me View Post
    The Second Amendment Foundation and other grass-root gun-rights groups have supported a great many lawsuits which are presently in the works that will have a positive impact on the future of open carry in Florida. One important lawsuit is the Dearth Case in which a United States citizen, who is not a physical resident of the United States (i.e. he lives overseas), is challenging the Federal Law that prevents expatriate American citizens from purchasing firearms while they are in this country. Another case is the Peterson case in which a Denver, CO law, which prohibits law-abiding non-resident U.S. citizens from legally carrying, is being Dearth and Peterson cases, which admittedly at first glance only seem to benefit a very small group of Americans i.e. the relatively few number of citizens who suffer from a residency-related prohibition.

    I've thought a lot about challenging the U.S. residency requirement of Florida's concealed carry law. The case may be winnable (on equal protection grounds) but in the end we'd only be incrementally improving Florida’s concealed carry law by removing the U.S. residency requirement (which wouldn't be a benefit to all Americans, like in the Dearth case). However, the same legal strategy applies equally well if directly challenging Florida's open carry ban. Therein lies the opportunity.

    This is why I came to the conclusion that attacking Florida's statutory prohibition on open carry would be a much better target. True, the open carry ban affects all U.S. citizens, but only expatriate Americans are statutorily prohibited from exercising both concealed and open carry. It is likely that a court may reason that if a law-abiding expatriate American citizen is unable to carry concealed then there must be at least an alternative legal avenue for him/her to exercise that right, i.e. the ban on open carry must be unconstitutional in the case of expatriate American citizens since they can't qualify for a concealed carry license.

    In other words, in order for the ban on open carry to be cleanly attacked, a plaintiff would have to demonstrate that they had no other legal option to carry. This situation exists in Florida but only for non U.S. resident Americans since, true expatriates, by definition, do not have U.S. residency.

    The ideal Plaintiff would be a U.S. citizen, whose long-term physical residence is located in Canada and who regularly spends a minority of the calendar year in Florida (since a minority presence is not enough to ‘legally’ claim U.S. residency).

    It is important to note that the Plaintiff must not challenge Florida’s concealed carry licensing scheme’s U.S. residency requirement (even though it is silly policy and vulnerable to a challenge). In fact, the Plaintiff should take the legal position (solely for purposes of the lawsuit) that she/he is positively not challenging the U.S. residency requirement of Florida’s concealed carry act. Doing so stinks but it in no way legitimizes concealed carry regulation – it is just something that the court needs to hear the Plaintiff's Attorney adamantly say in order to prevent the judge and defendant (i.e. the State) from attempting to muddy up and eventually derail the case.

    Taking such a legal tact should result in a clean Second Amendment issue as to whether or not a complete ban on carrying is constitutional (the case must not be ‘complicated’ by equal protection or other legal arguments). A direct swipe at Florida’s open carry statute is to be the object of the suit, since it is ‘the’ legal obstacle standing in the way of a certain class of law-abiding citizens (i.e. expatriate Americans) from exercising their Second Amendment Rights within the State of Florida.

    I hope that my little essay raises a few eyebrows and possibly leads to a legal action plan. Please watch the Dearth and Peterson cases closely.

    One final note, we all know that the Supreme Court has not yet held that bearing personal arms outside the home is covered by the Second Amendment. However, it is only a manner of time before SCOTUS answers that very question (indeed Scalia all but said that carrying outside the home was part of the right). In the worst case, even a loss at the federal circuit can prove useful (indeed it may be necessary) as it would potentially highlight a split amongst the Federal circuits, which is often a prerequisite for the Supreme Court to hear a case. So even an adverse holding by the Federal Appeals court would be helpful to our cause. However, if the eventual Dearth and Peterson decisions are favorable, this plan to kill Florida’s open carry statute stands a decent chance.

    Anyway, I'm not looking to be a primary plaintiff in this case (although I do qualify as an expatriate American). It would be much better to find a Plaintiff that resides in Canada who can more easily travel to Florida on short notice if required for court appearances. I'm in Thailand, much too far anyway. I'll just watch from the sidelines.

    No matter what happens in the Florida legislature (other than permitless open carry or Constitutional carry - neither of which are currently on the table), the Florida open carry ban remains vulnerable because it sets up a total prohibition on the exercise of a Right (if only for expatriate Americans) of the same type that the Supreme Court found unconstitutional in the Heller case.

    Thankfully, it doesn’t really matter if such a prohibition affects only a very small number of law-abiding expatriate citizens (as opposed to all Americans), the law can be struck down regardless. In other words, it is important to remember that striking down the open carry ban in order to allow a few expatriate citizens the ability to exercise the Right to open carry effectively strikes down the same open carry ban for everyone else! That is the prize! This is achievable providing some outside-the-box thinking is applied and you have the right plaintiff.

    Funding is always a problem, but just in case some of you have been contemplating possible legal avenues (as opposed to just legislative solutions) this open letter to the Florida Second Amendment Rights community is intended to serve as food for thought and hopefully action.

    David M. Bennett
    Udonthani, Thailand
    newbegin4 [you know what goes here] hotmail.com

    See:

    Dearth v. Holder http://www.comm2a.org/index.php?opti...1968&Itemid=42
    Peterson v. Garcia http://www.denverpost.com/coloradoco...ts/ci_18271171


    The Peterson case is a shoo-in; the strange part of the deal, however, is that the Dearth case hardly has a chance. The reason for this is that two type of law govern: on the former, it's a state case with state law that can be easily overturned under the state constitution. Places like Colorado and Florida are notorious for giving immigrants rights that they don't possess, so why not extend it a little more (especially if you can get some NRA cred while you're at it?).

    Dearth is governed under not just Federal law, but Agency law. Agency law is now pretty much untouchable by the courts, as SCOTUS has said, just two days ago in American Electric Power Co.*v. Connecticut that agency law can only be ventilated in the agency, not the courts. The Federal subagencies stand as judge jury, and executioners in this matter, and they aren't about to change Fed. Law that's been established. Dearth will be tossed on on pure procedure, while Peterson has a chance.

  5. #5
    Regular Member
    Join Date
    Jan 2009
    Location
    Northwest Kent County, Michigan
    Posts
    757
    Thanks Jojo,

    You seem to be unusually up-to-date on the legal angle. I'm not giving up hope on the Dearth Case. SAF.org is supporting it and they aren't legal newbies in the courtroom.

    As for winning or losing at the lower Federal courts, it doesn't really matter in the long-haul, so long as we can get cases back before the 'current' SCOTUS.

    77zach, we all know that gun-control laws are blantantly unconstitutional. However, that being said, we have to deal with reality since for many judges the truth is just too painful to accept. So we will make progress the only way we can (within the 'system'). That means, in part, funding these expensive cases. The residency angle is actually pretty darn clever. What the Dearth and Peterson cases are doing is attacking gun-control laws that are BOTH draconion AND irrational (you can't get any more strict than completely prohibiting a law-abiding citizen from exercising a Fundamental Right and you can't get any more silly than basing such prohibition on the geography of one's mailing address.)

    The legal strategy is to seek out the most contrasting test cases and challenge them first.

    Once we run out of 'complete prohibitions' then we challenge those cases that are 'effective prohibitions' i.e. charging fees - even if 99% of Americans could afford the fees, that would still leave 3 million Americans who would be too poor to afford to pay - think of the old 'poll' taxes to imagine where this goes.

    Our side is right in pursuing such a strategy because the legal precedent gained from victories in these black/white test cases can and will be used later on in winning other test cases where the contrast between draconion and irrationality is grayer (in the judiciary's mind at least).
    Last edited by OC4me; 06-23-2011 at 01:19 PM.

  6. #6
    Founder's Club Member ixtow's Avatar
    Join Date
    Nov 2006
    Location
    Suwannee County, FL
    Posts
    5,069
    "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.

  7. #7
    Regular Member
    Join Date
    Jan 2009
    Location
    Northwest Kent County, Michigan
    Posts
    757
    Quote Originally Posted by ixtow View Post
    Please respect other people's threads, thanks.

  8. #8
    Founder's Club Member Jojo712's Avatar
    Join Date
    Apr 2011
    Location
    Miami, FL
    Posts
    201
    Quote Originally Posted by OC4me View Post
    Please respect other people's threads, thanks.
    Ixtow has a peculiar sense of humor. As long as we all work to meet the same goals all that truly matters is that we pull in the same direction.

Posting Permissions

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