Over in another topic in another state's forum the conversation forked into a discussion of open carry of black powder firearms in Florida.
The fork in that conversation began with this post:
link
The conversation was a lively and, I believe, productive one, but strayed from the topic of the OP, so I started this topic to continue it. If the you're coming in the middle go read from the link above, forward until you hit the post that directs you back here.
My next reply on topic follows...
With regard to the "any firearm" I tend to agree with NAL there - "any firearm" should mean "any of the items in 790.001(6)". Since the legislature said antique firearms aren't firearms, if they meant 790.053 to encompass antique firearms I believe they would have to say "any firearm or antique firearm" - otherwise they create an ambiguous statute. In criminal cases such ambiguities have to be resolved in favor of the defendant.
I disagree with NAL when it comes to the "affirmative defense" aspect. It would be an affirmative defense if 790.001(6) did not exempt antique firearm from the definition of a firearm and if 790.053 read like this:
Since 790.001(6) does exempt antique firearms from the definition of a firearm, and since 790.053 reads like this:
The elements of the crime of open carrying a weapon are:
- The accused is a person
- They openly carried on or about their person any firearm or electric weapon or device
In order to arrest for a violation of 790.053 the officer needs to have "reasonable probable cause" (I hate that term, but that's what the courts use) that the item is a firearm (or electric weapon or device but we're not talking about that here). In order to make that determination the officer needs to know what a firearm is and isn't, so he has to look at 790.001(6):
Well, an 1858 percussion cap revolver certainly will (or is designed to) expel a projectile by the action of an explosive, so it meets the first criteria of a firearm. But then the statute says it does not include an "antique firearm" (with exceptions). So he then has to contemplate definition of an antique in 790.001(1):
Now, in order to arrest he needs to have reasonable probable cause that the thing on my hip is not "manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof". In 99.999999% of the cases the officer handles he will have no problem having reasonable probable cause that the item in question is not an antique. In the case of the Pietta in question, only the most absolutely firearms-ignorant could have such probable cause. If the officer were able to sincerely state that he doesn't know anything whatsoever about guns, then he might be able to say he reasonably had probable cause.
Since these guns are sold cash and carry with no ID, background check, or waiting period -- even to convicted felons -- throughout the state, clearly they are not firearms under state law -- either that or the State is turning a blind eye to a massive number of crimes on a daily basis.
Common definition for probable cause is:
That leaves a lot of wiggle room, but we can't twist things around here - he has to reasonably have
PC that I'm guilty to arrest - which is the opposite of what you suggest - that if he's not certain it's an "antique" he should arrest.
Again, this is all a logical exercise at this point unless someone wants to be a test case, and I'm not ready to volunteer for that just yet. I probably will go fishing while open carrying the 1858 at some point and see how that goes (since I have double insurance against arrest in that case).
