Via Florida Carry
Today, Governor Rick Scott signed SB 290 into law.
This bill, sponsored by Sen. Brandes in the Senate and Rep. Fitzenhagen in the House and supported by hard work from Florida Carry and the National Rifle Association, is important to gun owners statewide for two critical reasons:
1) The new law provides an exception for those in the process of fleeing a designated mandatory evacuation area. The exception is for a maximum 48 hours, which may be extended by the Governor, and provides that those affected may lawfully carry a concealed weapon or firearm on or about their person. The exception applies only to “the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered”. This will allow lawful gun owners to bring their guns with them during an emergency rather than being forced to leave them behind to fall in to the hands of looters or be destroyed in a disaster.
2) The legislation also corrected the structure of Florida Statute 790.01, the law that prohibits concealed carry.
In 2013 the Florida Supreme Court ruled that carrying a firearm or weapon, even with a license, is a crime to which the licensed person only has an “affirmative defense”. This was because lack of licensure was not an element of the crime, merely an exception.
[F]lorida’s legislative scheme causes us to hold that (concealed carry) licensure is an affirmative defense to a charged crime of carrying a concealed weapon, as codified at section 790.01, Florida Statutes (2013), and the lack of a license is not an element of the crime. This conclusion is based upon a clear reading of section 790.01 and consideration of its structure, the chapter of the Florida Statutes that governs firearms and other weapons, and the legal precedent on this issue.
Mackey v. State, 124 So. 3d 176, 181 (Fla. 2013)
The result was that Florida’s law abiding concealed carry licensees could be treated like criminals, and even be arrested, for exercising their right to bear arms.
The new law also corrects this problem by now clearly stating that it only prohibits people who are not licensed from carrying concealed weapons or firearms.
790.01 Unlicensed carrying of concealed weapons or concealed firearms.-
(1) Except as provided in subsection (3), a person who is not licensed under s. 790.06 and who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Except as provided in subsection (3), a person who is not licensed under s. 790.06 and who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
We offered this simple change to the law because it will help to ensure that people who hold Concealed Carry Licenses are not treated like common criminals.
The new law is effective immediately.
Goes without saying that you should donate at least the cost of one box of ammo to Florida Carry if you live in Florida. Go ahead and click on the logo on the right side of the blog. But the same applies to your state gun rights organization, OK?
Still looks like there’s a “loophole” for the government to charge you:
“Except as provided in subsection (3)”
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
This appears on first blush to be helpful, but in fact in further entrenches the color of authority to violate a citizen’s 4th Amendment right to be secure from unwarranted interrogation and search in the absence of probable cause of criminal conduct; to violate a citizen’s 5th Amendment right to due process before his rights may be taken from him, and to violate his 10th Amendment right to a State government not exercising authority prohibited to the States by the U.S. Constitution (prohibited by the 2nd Amendment) — i.e., Florida law remains a violation of citizen’s 4th, 5th, and 10th Amendment rights, and an a priori restraint on the citizen’s 2nd Amendment rights. The Florida State government has the Police Power to legislate and enforce laws designating the lawful and unlawful USE of arms — i.e., where they may be used, when they may be used, under what circumstances of threat, training, practice, etc., they may be used, but the Florida State government has no authority whatever to oversee, monitor, control, or interfere in any way with the right of a Florida citizen to keep and bear arms. And the government of the State of Florida will become aware of those rights when the citizens of the State of Florida start exercising them and standing up for them.
and the solution would be? (realistic one)
There have been numerous — almost perfectly consistent — instances of people challenging illegal government actions in court on Constitutional grounds and having their cases dismissed and sometimes being threatened with contempt of court for even bringing the Constitution up in a lower court, especially when they are represented by an attorney who makes the claim, and more especially when they say something in the third person like “But this is unconstitutional!” or “this violates my constitutional rights.”
However, there have been quite a few instances in which a private citizen is charged with a crime and, even though he may be represented by an attorney (always recommended), if he, personally and not through the attorney, stands up and claims his fundamental rights without even mentioning the Constitution, the charges are often dismissed or withdrawn because government does not want to take that to the point of citizen’s rights being recognized as binding.
I cannot give legal advice, of course, but I have no intention of ever again allowing myself to undergo an interrogation or search as a precondition to the purchase of a firearm, and if I am charged with a violation of any so-called ‘background check law’ I intend to claim, from the moment of my arrest, through the arraignment process, and trial (if it occurs, which I doubt) simply “I claim my right to be secure from interrogation and/or search as a precondition to receiving or being denied permission to exercise a right. I claim my right to be secure from being deprived of my rights without due process. I claim my right to be secure from the exercise of federal authority not delegated to the federal government by the U.S. Constitution, and I claim my right to be secure from the exercise of State authority prohibited to the State by the U.S. Constitution. This Court has the fundamental obligation to protect these my rights.” Let the judge and attorneys and whomever else argue about the Constitution; these rights predate the Constitution and predate government.
This has worked before, but is rarely admitted by government and the rulings are carefully arranged to avoid setting precedent. When it eventually fails to work, we will have grounds to retake our government away from the Marxist Mafia currently taking it over.
So, other than editorializing, you cannot provide with concise and realistic strategies to the issue. Gotcha.
Achieving Liberty under the Rule of Law has never been concise and realistic in the history of the planet, Miguel. There are no magic bullets. Aside from informing everyone who will listen that our Constitution flatly prohibits warrantless interrogation and search in the absence of probable cause of criminal conduct, and without due process as a precondition to receiving (or being denied) government permission to exercise a right, and exercising our right with or without government permission, there isn’t much we can do besides prepare to defend against the Second Bolshevik Revolution currently roaring down on us like a freight train. It would help enormously if gun owners would adopt the U.S. Constitution as their liberty Bible and start ramming it down government throats.
Oregon fixed this “loophole” (heh, turned that term around!) a while back, too. ORS 166.250 prohibits carrying concealed firearms. ORS 166.260 exempts several classes of people (including CHL holders) entirely, but that didn’t fix the “probable cause” thing.
ORS 166.262 (passed in 1999), though, places limitations on peace officers when arresting people on probable cause for unlawful carrying. It specifically says, “A peace officer may not arrest or charge a person for violating [statutes prohibiting unlawful carry] if the person has in the person’s immediate possession a valid license to carry a firearm under [CHL statutes].” (emphasis added)
IOW, keep your license on you when you carry. It’s not just an “affirmative defense” to be brought up in court; the peace officer cannot arrest you if you have it with you.
[…] In Florida, you can now carry a firearm without a permit during an emergency evacuation or a declare…. Governor Scott signed it into law. Again, partial victory for Constitutional Carry, but we’re now a step closer to having one of the big states buy in, which we really need to get other states to go along. […]