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FL Supreme Court To Decide Is Carrying A Gun A Crime Even With A Carry License?
Ammoland ^ | 19 September, 2012 | Florida Carry

Posted on 09/19/2012 1:23:31 AM PDT by marktwain

Florida - -( The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We all know that the police can’t generally just stop and search you when you’re just out in public and minding your own business. You have a Fourth Amendment right that protects you from such invasions of your privacy. Unless you are attempting to go in to a secured “sensitive place”, there must be a reasonable suspicion that you are committing a crime for a police officer to search you. That is, at least so long as you don’t exercise your Second Amendment right also.

In 1984 the Florida Supreme Court ruled that there can be no assumption that everyone carrying a gun is doing so unlawfully because the legislature intended to exempt carry licensees from the crime carrying a gun. This made the absence of a license to carry a necessary element of the crime of Concealed Carry.

The Florida high court came to this conclusion by analyzing the statute and applying a general rule regarding exceptions and prepositional phrases. Most importantly, it said:

A court’s main guide in construing a statute is the legislature’s intent. Accordingly, general rules of statutory construction, such as the one in Baeumel, are designed to help courts ascertain the intent of the legislature. As stated above, however, Baeumel is a general rule, and in some cases the placement of a statutory exception is not determinative of the legislature’s purpose regarding a statutory exception. State v. Robarge (450 So. 2d 855) (internal citations omitted).

Then, in 1987 Florida changed its law to create a statewide licensing system for concealed carry. This did away with the former law that based the licensing of concealed and unconcealed carry with County Commissions. This was the famous “Shall-Issue” law that made Florida the prototype for concealed carry laws nationwide. Today nearly 1-million people have current Concealed Carry Licenses under this law.

The problem is that when the law was changed, the legislature didn’t use the general rule of statutory language construction that was used in the previous statute. This gave prosecutors another bite at the apple. The courts started to ignore the legislature’s intent and instead, just looked to the technical structure of the updated concealed carry statutes.

Now the courts are saying that anytime you carry a firearm you are committing a crime. If you have a concealed carry license, that just gives you an “affirmative defense” to the charges.

Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person.

The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an “exception” to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense. Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)

Obviously this result is not what the legislature intended when it was trying to make carrying easier in 1987. Regardless, the courts have be skipping the intent analysis done by the Supreme Court in 1984 and are instead misquoting the case by using just a small part of the Robarge decision and citing it completely out of context.

See also State v. Robarge, 450 So. 2d 855 (Fla. 1984) v. Robarge, 450 So. 2d 855 (Fla. 1984) (holding that under rules of statutory construction, if an exception is contained in a clause subsequent to the enactment clause of a statute, the exception is an affirmative defense rather than an element of the offense); Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)

So… In order for the police to stop and frisk or arrest you, they must first observe facts supporting a reasonable suspicion that a suspect is engaged in criminal activity or have information suggesting the possession of a firearm is unlawful.

Now, under the Mackey decision, any time you exercise your Second Amendment right you are engaged in presumably criminal activity.

Therefore, you can be stopped, searched, and even arrested for carrying a firearm and then be made to present the “affirmative defense” to a judge that you have a valid concealed carry license.


This Mackey case has been appealed to the Florida Supreme Court (SC12-573). Florida Carry is filing an Amicus Brief on behalf of the law-abiding gun owners of Florida to reverse this dangerous precedent.

Filing fees, printing costs, and other necessary fees are expensive.

We NEED your support so that we can continue to defend your right to carry. Please Join Florida Carry or Donate today!

About: Florida Carry is a non-profit, non-partisan, grassroots organization dedicated to advancing the fundamental civil right of all Floridians to keep and bear arms for self defense as guaranteed by the Second Amendment to the United States Constitution and Article I Section 8 of the Florida Constitution. Florida Carry, Inc. was organized by a group of Florida gun rights activists in order to better coordinate activities, effectively lobby the state legislature, and to provide a legal entity capable of filing suit to demand compliance with state and federal law. Florida Carry stands only to represent our members and the over 6 million gun owners of Florida. We are not beholden to any national organization’s agenda that may compromise that mission.

Florida Carry works tirelessly toward repealing and striking down ill-conceived gun control laws that have been proven to provide safe havens to criminals and be deadly to law abiding citizens. Florida Carry Phone: 850-270-7486 Fax: 678-359-9816

TOPICS: Constitution/Conservatism; Government; News/Current Events; US: Florida
KEYWORDS: banglist; ccw; fl; fourthamendment
The power to prosecute is the power to destroy without accountability. Look at Tom Delay, an obvious victim of political prosecution.
1 posted on 09/19/2012 1:23:45 AM PDT by marktwain
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To: marktwain

Delay should be DeLay.

2 posted on 09/19/2012 1:24:21 AM PDT by marktwain
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To: marktwain

This is how New York City and New Jersey treat the FOPA when travelling through their fair jurisdictions.

Carrying a firearm without a state issued license is a crime, and the FOPA that protects transport through states to an ultimate destination where the firearm is legal is considered an affirmative defense.

Transport a gun through the Garden State, get pulled over, and you get arrested. At your trial you can prove that you were travelling to Vermont from North Carolina.

3 posted on 09/19/2012 3:13:39 AM PDT by Yo-Yo (Is the /sarc tag really necessary?)
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To: marktwain

I am not surprised.

Florida is the “new Isreal” and the mecca for retirees, their children and relatives from New York.

They have simply brought their New York City beliefs about gun control with them.

Florida is quickly becoming the “California” of the east coast.

4 posted on 09/19/2012 4:57:29 AM PDT by DH (Once the tainted finger of government touches anything the rot begins)
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To: marktwain
This is the Left's best hope to destroy concealed carry. If they can get courts in those states that have a general prohibition on concealed carry to rule that anyone who is carrying a gun is committing a crime and can be arrested, then they have nullified the concealed weapons permit.

In my opinion, this shows the desperation of the Left to stop the forward momentum of 2nd Amendment rights. They are willing to arrest as many concealed carriers as it takes.

Yes, this is what happens when our rights are couched in terms of government permits.

5 posted on 09/19/2012 5:31:01 AM PDT by backwoods-engineer (My game is disruption. I will use lethal force --my vote-- in self-defense against Obama.)
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To: marktwain
Obviously this result is not what the legislature intended when it was trying to make carrying easier in 1987.

Then maybe the legislature should have amended the law properly.

Don't conservatives believe that the law should be read as written?

6 posted on 09/19/2012 5:45:25 AM PDT by SoothingDave
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7 posted on 09/19/2012 6:13:35 AM PDT by phockthis ( ...)
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