OC4me
Regular Member
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?opt...r-&catid=28:gun-control-act-of-1968&Itemid=42
Peterson v. Garcia http://www.denverpost.com/coloradocorporatestatements/ci_18271171
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?opt...r-&catid=28:gun-control-act-of-1968&Itemid=42
Peterson v. Garcia http://www.denverpost.com/coloradocorporatestatements/ci_18271171
Last edited:
