Open Carry Old West Style

[WalkingWolf]

Seems pretty clear. That said, an officer is not likely going to be able to tell from the butt of the gun that it's percussion cap, so contact and detention to determine the status would be reasonable. Upon determining that it is percussion cap that should be the end of the story. Yes, I know an overzealous LE could arrest you anyway, hence the apprehension against actually open carrying the piece. At a minimum it would be foolish to even consider it before the Norman case is resolved since it's at least slightly possible that case could legalize open carry in Florida.

It could be interpreted that "any" firearm includes a antique firearm. There was no need for the word any, and it is very possible that a judge would find the word any to include all types of firearms.

 

[fighting_for_freedom]

BrianB: I would be very cautious if you do decide to carry those BPs. From my quick read of Florida law, it could definitely be construed to mean all firearms, regardless of antiquity. Perhaps there is a valid caveat in that law, but I didn't see it. You might consider consulting with a lawyer on that subject; see what their read is.

I'm with you, if I didn't have business to run, I'd be your test case. I have no problem with fighting these laws in the only rational method there is - that of noncooperation. But, alas, I have a wife to feed and customers who depend on me. Doesn't it blow - being placed in this situation where you must choose between your rights and your life? Should be able to have both, if you ask me.

 

[BrianB]

It could be interpreted that "any" firearm includes a antique firearm. There was no need for the word any, and it is very possible that a judge would find the word any to include all types of firearms.

Unfortunately Florida does not publish any floor debates for their legislative sessions so researching legislative intent is not so easy. Another possible reason for the use of "any" would be to avoid saying "it is unlawful for any person to openly carry on or about his or her person a firearm or electric weapon or device" and then having someone say "I didn't have 'a' firearm I had 3 of them". Perhaps also making it clear that handguns and long guns are prohibited from open carry unlike some states that prohibit open carry of handguns and permit long guns.

Again, if I was retired and didn't care about a 2nd degree misdemeanor arrest I'd volunteer to be a test case. I think if I decide to test the waters with this I would do so by open carrying it in a circumstance where I can legally open carry a modern gun. For example, in Florida you can legally open carry a handgun while fishing or going to or from fishing. So, go fishing while open carrying your 1858 and when/if the cops show up, start with "it's not legally a firearm it's an antique replica" and show them the statute. If that doesn't work, then fall back on "and I'm fishing".

 

[BrianB]

BrianB: I would be very cautious if you do decide to carry those BPs. From my quick read of Florida law, it could definitely be construed to mean all firearms, regardless of antiquity. Perhaps there is a valid caveat in that law, but I didn't see it. You might consider consulting with a lawyer on that subject; see what their read is.

I'm with you, if I didn't have business to run, I'd be your test case. I have no problem with fighting these laws in the only rational method there is - that of noncooperation. But, alas, I have a wife to feed and customers who depend on me. Doesn't it blow - being placed in this situation where you must choose between your rights and your life? Should be able to have both, if you ask me.

I guard my clean criminal record rather jealously, so I'm not about to do something rash that may screw it up for no reason. Maybe I'll win the lottery, retire young, and then I can be a little more "reckless".

 

[notalawyer]

As quoted above, the law says "replica", not "exact replica". Also under the U.S. Supreme Court case of Staples v. United States in order to convict someone of a crime based upon a feature of a firearm it is the state's burden to prove that they knew or reasonably should have known that the firearm possessed the feature that subjected it to regulation. In my opinion the state would have to prove beyond a reasonable doubt that I knew, or reasonably should have known, that the Pietta 1858 Remington replica was not a replica of a firearm manufactured prior to 1918. If this item is a firearm under Florida law then Cabela's has broken all sorts of Florida laws by shipping them directly to purchasers here without following any of Florida's laws regarding retail delivery of firearms.

I'm not worried about whether or not this gun is a firearm under Florida law, but I'm also not eager to get an arrest record over it. If I were retired (I'm not) and didn't really care about a 2nd degree misdemeanor arrest record then I'd do it just for the principle of the matter. In my opinion if you have a copy of the law with you, show it to the investigating officer, and he arrests you anyway, it's a good chance to get some extra retirement money by suing the officer and agency for the bogus arrest, 1983 civil rights violation, etc.

In my opinion if you have a copy of the law with you, show it to the investigating officer, and he arrests you anyway, it's a good chance to get some extra retirement money by suing the officer and agency for the bogus arrest, 1983 civil rights violation, etc.

Not a chance in the world!

Since we are discussing Florida law and not Federal law, you have to look to Florida precedent.

Bostic v. State, 902 So. 2d 225 - Fla: Dist. Court of Appeals, 5th Dist. 2005

A plain reading of the statute requires that, in order to be exempt, a firearm must be either manufactured in or before 1918 or be a "replica" thereof. A replica is defined by Florida case law as meaning a reasonably exact reproduction of the object involved that, when viewed, causes the person to see substantially the same object as the original. See Harris v. State, 843 So.2d 856, 863 (Fla.2003) (citing Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958)). Applying this definition to the facts at hand, it is clear that merely having an ignition system similar to that found on an antique firearm is not sufficient to render a firearm a "replica" of a firearm manufactured in or before 1918.

Evidence of the 'Antiqueness' or 'Replica' status of the firearm in question would be required to be submitted by the accused, as this is an affirmative defense and not an element of the crime situation. And provided to the SA (and get him to drop the charges) or court (for a dismissal). A LEO is not qualified to render such a decision on the street and would likely, properly, make an arrest on a good faith belief that PC existed for a violation of 790.053.

 

[notalawyer]

It could be interpreted that "any" firearm includes a antique firearm. There was no need for the word any, and it is very possible that a judge would find the word any to include all types of firearms.

The definition in 790.001(6) clearly precludes that possibility:

“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.

 

[notalawyer]

BrianB: I would be very cautious if you do decide to carry those BPs. From my quick read of Florida law, it could definitely be construed to mean all firearms, regardless of antiquity. Perhaps there is a valid caveat in that law, but I didn't see it. You might consider consulting with a lawyer on that subject; see what their read is.

I'm with you, if I didn't have business to run, I'd be your test case. I have no problem with fighting these laws in the only rational method there is - that of noncooperation. But, alas, I have a wife to feed and customers who depend on me. Doesn't it blow - being placed in this situation where you must choose between your rights and your life? Should be able to have both, if you ask me.

No, the law is clear and he would be legal to do so. However, in light of the affirmative defense situation, he would need to 'prove' the firearm was an Antique or replica. Any arrest for such a violation would be perfect legal and proper with no possible remedy via a 1983 suit.

The down side to this would be:
Arrest record.
Bail.
Possible Job loss.
Lawyer fees.
Possible trial if you get a dick for an SA.
Expert witness fees.
Etc.

 

[Rusty Young Man]

Not a chance in the world!

Since we are discussing Florida law and not Federal law, you have to look to Florida precedent.

Bostic v. State, 902 So. 2d 225 - Fla: Dist. Court of Appeals, 5th Dist. 2005


Evidence of the 'Antiqueness' or 'Replica' status of the firearm in question would be required to be submitted by the accused, as this is an affirmative defense and not an element of the crime situation. And provided to the SA (and get him to drop the charges) or court (for a dismissal). A LEO is not qualified to render such a decision on the street and would likely, properly, make an arrest on a good faith belief that PC existed for a violation of 790.053.

Not to derail where this thread is going (seems like a really good discussion, at any rate), but how many states explicitly exempt antiques from "firearm" status? Even if only under defined circumstances?

Sadly, Arizona isn't one such state:

A.R.S. 13-3101
Definitions
A. In this chapter, unless the context otherwise requires:
1. "Deadly weapon" means anything that is designed for lethal use. The term includes a firearm.
2. "Deface" means to remove, alter or destroy the manufacturer's serial number.
3. "Explosive" means any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes.
4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.

In the case of Texas though, they have this:

PENAL CODE
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS CHAPTER 46. WEAPONS

Sec. 46.01. DEFINITIONS.
In this chapter:

(3)"Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) An antique or curio firearm manufactured before 1899; or
(B) A replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim*fire or center fire ammunition.

(4) "Firearm silencer" means any device designed,
made, or adapted to muffle the report of a firearm.
(5) "Handgun" means any firearm that is designed,
made, or adapted to be fired with one hand.

So Texas and possibly Florida. Any other states?

 

[Rusty Young Man]

No, the law is clear and he would be legal to do so. However, in light of the affirmative defense situation, he would need to 'prove' the firearm was an Antique or replica. Any arrest for such a violation would be perfect legal and proper with no possible remedy via a 1983 suit.

The down side to this would be:
Arrest record.
Bail.
Possible Job loss.
Lawyer fees.
Possible trial if you get a dick for an SA.
Expert witness fees.
Etc.

Just thinking out loud, but what if he carried in such a manner as to ridiculously exaggerate the concept of black powder antique? Say, carrying a "traditional" powder horn with him or such?
Would a flintlock make a good test case since the firing mechanism is so obviously not "modern"?

 

[WalkingWolf]

The definition in 790.001(6) clearly precludes that possibility:

And the word ANY could include ANY firearm, or it would have said just firearm. I can see a judge accepting any to mean all variations. Your freedom, not mine on the line, go for it. We always need those brave souls to be test cases.

The word "any" can be replaced with any other word. Including antique or modern, or as in vehicle utility, passenger, paneled. I have to believe the word was inserted for a purpose. If I was on the jury, and not a supporter of 2A, I would vote guilty. As a 2A supporter I would have to vote not guilty. Actual 2A supporters are a minimum of society.

 

[notalawyer]

Just thinking out loud, but what if he carried in such a manner as to ridiculously exaggerate the concept of black powder antique? Say, carrying a "traditional" powder horn with him or such?
Would a flintlock make a good test case since the firing mechanism is so obviously not "modern"?

I cannot imagine any LEO in Florida making such a determination in the field. They are going to make an arrest based on PC, which is easily supplied here and kick the 'Antiqueness' or 'Replica' status determination up to the SA for a firearms expert to weigh in.

 

[notalawyer]

And the word ANY could include ANY firearm, or it would have said just firearm. I can see a judge accepting any to mean all variations. Your freedom, not mine on the line, go for it. We always need those brave souls to be test cases.

The word "any" can be replaced with any other word. Including antique or modern, or as in vehicle utility, passenger, paneled. I have to believe the word was inserted for a purpose. If I was on the jury, and not a supporter of 2A, I would vote guilty. As a 2A supporter I would have to vote not guilty. Actual 2A supporters are a minimum of society.

You clearly missed, or failed to comprehend, the statutory definition of 'firearm' I provided. :uhoh:

 

[WalkingWolf]

Just thinking out loud, but what if he carried in such a manner as to ridiculously exaggerate the concept of black powder antique? Say, carrying a "traditional" powder horn with him or such?
Would a flintlock make a good test case since the firing mechanism is so obviously not "modern"?

There are circumstances in Fl where a person can legally open carry, such as fishing, en route, to or en route from.

 

[WalkingWolf]

You clearly missed, or failed to comprehend, the statutory definition of 'firearm' I provided. :uhoh:

You failed to comprehend the definition of the word any.:lol:

an·y
ˈenē/Submit
determiner & pronoun
1.
used to refer to one or some of a thing or number of things, no matter how much or many.
"I don't have any choice"
anyone, anybody, any individual/person; More
2.
whichever of a specified class might be chosen.
"these constellations are visible at any hour of the night

 

[notalawyer]

There are circumstances in Fl where a person can legally open carry, such as fishing, en route, to or en route from.

Which has nothing at all to do with his question or the topic under discussion.

 

[WalkingWolf]

Which has nothing at all to do with his question or the topic under discussion.

What!? It has everything to do with it! It is a critical part of the law!

Please please be a test case for your brethren in Florida.

 

[notalawyer]

You failed to comprehend the definition of the word any.:lol:

an·y
ˈenē/Submit
determiner & pronoun
1.
used to refer to one or some of a thing or number of things, no matter how much or many.
"I don't have any choice"
anyone, anybody, any individual/person; More
2.
whichever of a specified class might be chosen.
"these constellations are visible at any hour of the night

You really cannot be this dense, can you?

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

"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.

“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.

 

[WalkingWolf]

You really cannot be this dense, can you?

But the statute said and I quote "ANY firearm". Again if you are so positive be a test case!

You really can't be that stupid, can you?

 

[notalawyer]

What!? It has everything to do with it! It is a critical part of the law!

Please please be a test case for your brethren in Florida.

No, it does not.
The topic under discussion is carrying a 'Antique Firearm' to circumvent the general prohibition against open carry of firearms in Florida. Not whether carrying an 'Antique Firearm' would be legal if you were carrying in compliance with the 'execptions' to that general prohibition. - Any fire firearm would be legal in such situations! :banghead:

 

[JamesB]

https://www.youtube.com/watch?v=j4XT-l-_3y0