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Legality of black powder open carry

Wulframn

New member
Joined
Jun 18, 2012
Messages
3
Location
Florida
Hey guys, I've been lurking here for a few months and just decided to register primarily because I have a question I simply can't seem to find a definitive answer on: Is it legal to open carry a black powder firearm in the State of Florida?

My confusion stems primarily from:

1) No weapon may be legally open carried in the State of Florida; yet
2) Black powder firearms are technically not considered weapons (as I understand the definition).

I have inquired at the local police department (the main office) and have received everything from "Why?," to "You can't legally carry any weapon anytime anywhere," to "What's a black powder gun?" (well, along those lines). I've inquired with black powder buddies and gotten both "Yes" and "No" results.

Now I'm not talking about strapping on a cap and ball cowboy shooter and using it as my self-defense gun; I have a Witness 10mm and a concealed carry license for that purpose. No, I am asking primarily for the issue of transportation and such. I do not currently have a car of my own and often walk or bike to where I need to go. Obviously my Hawken .45 caliber rifle is too big to stick in a pack and so on.

Just trying to stay well informed - thanks in advance everyone! =D
 

ManInBlack

Regular Member
Joined
Jul 2, 2006
Messages
1,551
Location
SW Idaho
IANAL, but it seems that it would be legal to open carry an "antique firearm" in Florida. However, the distinction between "firearm" and "antique firearm" in the statute is not one I would expect the average street cop to have the diligence to make. Consequently, because I do not have the time or money to defend myself in court, I wouldn't try it unless I also could take advantage of one of the exceptions in 790.25.

[SIZE=-1]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. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

(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.
History.—s. 1, ch. 87-537; s. 173, ch. 91-224; s. 3, ch. 97-72; s. 1205, ch. 97-102; s. 3, ch. 2006-298; s. 1, ch. 2011-145.
[/SIZE]

[SIZE=-1]90.001 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.

. . .[/SIZE]


[SIZE=-1](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.

[/SIZE]
 
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Wulframn

New member
Joined
Jun 18, 2012
Messages
3
Location
Florida
IANAL, but it seems that it would be legal to open carry an "antique firearm" in Florida. However, the distinction between "firearm" and "antique firearm" in the statute is not one I would expect the average street cop to have the diligence to make. Consequently, because I do not have the time or money to defend myself in court, I wouldn't try it unless I also could take advantage of one of the exceptions in 790.25.

Thanks a lot! :D I had read this statute and definition earlier and am thoroughly under the impression that it is OK to do so simply because the item in question is an "antique firearm".

I concur with the sentiment concerning the average patrol officer not knowing the difference and whole-heartedly sympathize on not wanting to be a test case; however, it is nice to have all the information I can in case the need should ever arise to transport one openly.
 

edrolee

Regular Member
Joined
May 29, 2010
Messages
119
Location
Loughman,Florida, USA
JMHO that bit about "The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime."

that is the sticky bit here seeing as how OC is illegal, thus a crime, carrying antique firearm openly COULD invoke this and make it a crime, lawyers and epically prosecutors (lawyer + politician) are slippery and could easily try to twist this all up

JMHO and IANAL

(no offense intended to anyone here just a generalization)
 

ManInBlack

Regular Member
Joined
Jul 2, 2006
Messages
1,551
Location
SW Idaho
JMHO that bit about "The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime."

that is the sticky bit here seeing as how OC is illegal, thus a crime, carrying antique firearm openly COULD invoke this and make it a crime, lawyers and epically prosecutors (lawyer + politician) are slippery and could easily try to twist this all up

JMHO and IANAL

(no offense intended to anyone here just a generalization)

The statute criminalizes openly carrying "any firearm." Openly carrying an an antique firearm is not criminalized in statute, so the antique firearm cannot be considered a firearm.
 
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j4l

Regular Member
Joined
Jan 6, 2011
Messages
1,835
Location
fl
Counting on anyone other than a shooting enthusiast to be able to make the distinction between one or the other....not likely to have a welcome outcome.
 

ManInBlack

Regular Member
Joined
Jul 2, 2006
Messages
1,551
Location
SW Idaho
Counting on anyone other than a shooting enthusiast to be able to make the distinction between one or the other....not likely to have a welcome outcome.

10-4

My mother lives in Florida, and her house is just off the Intracoastal. I get nervous just OC'ing her yard while fishing, as there is a public park across the canal in which I regularly see cruisers patrolling.
 

ADulay

Regular Member
Joined
Oct 5, 2008
Messages
512
Location
Punta Gorda, Florida, USA
10-4

My mother lives in Florida, and her house is just off the Intracoastal. I get nervous just OC'ing her yard while fishing, as there is a public park across the canal in which I regularly see cruisers patrolling.

Why would you be nervous?

You're fishing. You're covered.

It's pretty black and white for sure.

Heck, if you're really bothered about it, keep a printout of the statute in your fishing tackle box! I do!

AD
 

ManInBlack

Regular Member
Joined
Jul 2, 2006
Messages
1,551
Location
SW Idaho
Why would you be nervous?

You're fishing. You're covered.

It's pretty black and white for sure.

Heck, if you're really bothered about it, keep a printout of the statute in your fishing tackle box! I do!

AD

For sure...it's just that, in a state in which it is illegal to "normal" open carry, I am somewhat leery of relying on an exception, especially as a non-resident.

Just jitters, I suppose, like when I first started carrying. I imagine it will, like most things, ease with time.
 

ADulay

Regular Member
Joined
Oct 5, 2008
Messages
512
Location
Punta Gorda, Florida, USA
Just jitters, I suppose, like when I first started carrying. I imagine it will, like most things, ease with time.
Very true.

When I first starting to open carry full time, I was just as apprehensive as the next guy, but that soon fades away the more comfortable you become with it.

Now I don't even think about it as it's just my normal routine and even the passing city PD or Sheriff's cars don't even get a second look from me.

Remember, my OC time is always on the motorcyle (and fishing and shooting, of course).

AD
 
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Jojo712

Founder's Club Member
Joined
Apr 9, 2011
Messages
204
Location
Miami, FL
I wouldn't do it simply because there's bound to be an idiot cop who will call the entire force over, place you in fear for your life, scrape your chin against the hard concrete as they launch you unto the floor, cuffed, and then ruin the perfect criminal record that you likely have (and that most folks on this forum have). Whether it's a weapon or not is immaterial. It propels a charge using powder, primer, etc? It's a gun to a cop no matter which way you slice it.

The law here is so nuanced, and the cops here are so not, that this is almost akin to asking: "can I smoke marijuana-scented tobacco in front of a cop?" Sure you can, it's just a scent and isn't the real thing, but do you really want to face the hassles that can go along with that? Plenty of cops will have their cop ego bruised if you start getting into nuance: they'll feel like you're condescending to them, and then you'll be the one to face the hassle.
 

ixtow

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Joined
Nov 25, 2006
Messages
5,038
Location
Suwannee County, FL
I wouldn't do it simply because there's bound to be an idiot cop who will call the entire force over, place you in fear for your life, scrape your chin against the hard concrete as they launch you unto the floor, cuffed, and then ruin the perfect criminal record that you likely have (and that most folks on this forum have). Whether it's a weapon or not is immaterial. It propels a charge using powder, primer, etc? It's a gun to a cop no matter which way you slice it.

The law here is so nuanced, and the cops here are so not, that this is almost akin to asking: "can I smoke marijuana-scented tobacco in front of a cop?" Sure you can, it's just a scent and isn't the real thing, but do you really want to face the hassles that can go along with that? Plenty of cops will have their cop ego bruised if you start getting into nuance: they'll feel like you're condescending to them, and then you'll be the one to face the hassle.
Defining fear as wisdom is the creed of cowards and why we keep losing.
 

BB62

Accomplished Advocate
Joined
Aug 17, 2006
Messages
4,069
Location
Cincinnati, Ohio, USA
Hey guys, I've been lurking here for a few months and just decided to register primarily because I have a question I simply can't seem to find a definitive answer on: Is it legal to open carry a black powder firearm in the State of Florida? ...
Welcome to (registered) OCDO! It's great that you're here and even better that your first posts are about investigating the possibility of engaging in activism.

Keep up the questions and the interaction.

A suggestion: if you are satisfied with the legality of OCing a particular type of firearm, and want to do so in public, put the local police and prosecutor on notice of your intent to do so, stating that it's legal as far as you're concerned. In the same note, ask for their response if they disagree.

I can supply you with various types of notices that I've used prior to activism in various states. I'd also get to know ixtow, because he's on the same wavelength as you are.
 

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
Defining fear as wisdom is the creed of cowards and why we keep losing.
Agree with the bolded part, but don't with the statement "we keep losing."

Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast. :p
 

Firearms Iinstuctor

Regular Member
Joined
Jul 12, 2011
Messages
3,428
Location
northern wis
Agree with the bolded part, but don't with the statement "we keep losing."

Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast. :p

We have 8 constitutional carry states we have more shall issue states then may issue states we have seen improvements in many other states.

Yes we are winning slower than we would like but we are winning.
 

Citizen

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Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
Just to add to the mix, the statute quoted way above says "antique firearm". It does not say, "Uberti replica of an antique firearm." A Ruger Old Army .44 cap-and-ball revolver is definitely not an antique.

I did not notice. Does the statute go on to define an antique firearm? Meaning, does the statute rely on federal law or regulation? Does the statute give a cut-off date, say, 1899 or 1920? Smokeless cartridge? Muzzleloader?

Who's gonna buy a genuine antique Colt Navy .36 just to fall under the antique exemption? Especially with the other observations about cops not knowing the fine points of the law.
 
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Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
Just to add to the mix, the statute quoted way above says "antique firearm". It does not say, "Uberti replica of an antique firearm." A Ruger Old Army .44 cap-and-ball revolver is definitely not an antique.

I did not notice. Does the statute go on to define an antique firearm? Meaning, does the statute rely on federal law or regulation? Does the statute give a cut-off date, say, 1899 or 1920? Smokeless cartridge? Muzzleloader?

Who's gonna buy a genuine antique Colt Navy .36 just to fall under the antique exemption? Especially with the other observations about cops not knowing the fine points of the law.

[SIZE=-1]790.001 Definitions.—As used in this chapter, except where the context otherwise requires.

 “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.

[/SIZE]
http://www.leg.state.fl.us/statutes...ute&URL=0700-0799/0790/Sections/0790.001.html
 
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BB62

Accomplished Advocate
Joined
Aug 17, 2006
Messages
4,069
Location
Cincinnati, Ohio, USA
Defining fear as wisdom is the creed of cowards and why we keep losing.

Agree with the bolded part, but don't with the statement "we keep losing."

Overall we have made considerable advancement with RKBA. Some places major strides like the recent WVA approval of Constitutional Carry. Other places the going has been more difficult. Of course I am a cup-is-half-full kinda guy, rather than seeing it as half empty.

Will acknowledge that you dodged a personal bullet with having to eat the pages of Florida's positive OC law.....this time. Hopefully next time we can watch your repast. :p
I took his post as a reference to Florida only, regarding the so-far failed attempts to get legal OC there.
 

Grapeshot

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Joined
May 21, 2006
Messages
35,317
Location
Valhalla
I took his post as a reference to Florida only, regarding the so-far failed attempts to get legal OC there.
Ah so - you're likely right.

Trust that ixtow took note of the referenced definition of antique firearm.....he should be able to legally OC one in public in Florida.........yes?
 
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