florida antique concealed carry without permit legal?

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Do you have the Florida statute that makes the carrying of weapons illegal in the first place? That's the starting point. In that law there will be a definition of what a "weapon" is (or a citation of where in the statutes such weapons are defined).

Concealed carry permits generally grant exceptions to such a law.

The definition of "firearm" under Florida law might not exactly align with the definition of a weapon that may not be lawfully carried (without a permit).

It is entirely possible (even probable) that Florida's laws do not consider antiques to be firearms for possession and sales purposes, but DO count them among the items that would be illegal if carried as weapons.

Once you have those definitions figured out, you may also have to investigate what precedents have been set in case law on this matter.
 
790.01 Carrying concealed weapons.—(1) Except as provided in subsection (4), a person 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) A person 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.
(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.
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Note the difference they're establishing between the terms "weapon" and "firearm?"

Now, looking into section 790.06, which provides for concealed carry permits, some definitions are given:
For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but the term does not include a machine gun...
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But those are merely "for the purposes of this section" (790.06).

Going back up to 790.001, the "Definitions" section, "Weapons" are defined thus:

(13) “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
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(Emphasis mine.)

Considering how many [strike]tens of thousands[/strike] MILLIONS of people died from wounds delivered by "antique" firearms before we got around to inventing "modern" ones, I think it would be an exercise in absurdity to try and argue that they are neither "deadly" nor "weapons."

So, IF you are carrying a cap & ball revolver concealed about your person in public, I would very much expect that you'd be subject to 790.01.

This Florida lawyer may be trying to make a test case or prove a point, I don't know. But I would get the permit. It sure isn't hard! :)
 
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Good luck with that one in court.

Maybe the attorney is willing to be the test case?

better his ass than yours.
 
Without taking the time to look back over the relevant laws and cases, I'm pretty sure that attorney is confusing the definitions of "weapon" and "firearm."
Just because an antique firearm isn't "firearm" doesn't mean it isn't a "weapon" or "deadly weapon." Even what is a "common pocketknife," which is clearly excluded from the definition of "weapon" is a murky issue. I had a jury trial, and it ended up being a question of fact for the jury. The jury came back not guilty on all counts, but trust me, you don't want to stand there and have a clerk read whether you are guilty or not.
 
Hmmmm. Here's an interesting twist, though. Florida statute 790.053 says,

"(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."

So, one may openly carry other weapons in Florida. Knives, swords, crossbows, etc. Attorney Gutmacher confirms this in his Florida firearms law book. So what about antique firearms?

Well, in 790.001 we read,

"The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime."

So, it would appear that the open carry prohibition in 790.053 would not apply to antique firearms.

I don't particularly want to test this one personally in court, but it would seem to this non-lawyer that you might be legal to openly carry a firearm manufactured prior to 1918 (the year in Florida's definition of antique firearms).

Hmmmmm. Anybody want to be a test case?
 
Hmmmm. Here's an interesting twist, though. Florida statute 790.053 says,

"(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."
So, one may openly carry other weapons in Florida. Knives, swords, crossbows, etc. Attorney Gutmacher confirms this in his Florida firearms law book. So what about antique firearms?
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Read that statute again, carefully. It does NOT say, "so, one may openly carry..." anything. It defines a few things one may NOT carry. Prohibition against one thing is not equivalent to permission to do something else.

This crops up in firearms law frequently. A law may say, "you may not do X," and some will read that to say, "so everything else must be just fine." Not when some other statute prohibits those other actions.

Second, as I already pointed out, an antique firearm is not a "firearm" according to Florida law (unless used in a crime) BUT it certainly is still a "weapon" under 790.001, and thus under 790.01 as well.
 
andrewstorm- I will try to remember to look it up on Monday. If I still have hard copies of the cases they are at work. I will find them on Westlaw if I don't still have the paper copies.
 
sam1911

Under federal law the rule of lenity prevails, as not to unjustly burden museum curators and collectors,who can inadvertently get caught with a concealed firearm,this is why the antique firearms enjoy an exempt status,and yes what the law does not specifically prohibit is allowed under common law,in the state of Florida as it is in Michigan,open carry is legal in mi. because there is no law against it,as in Vermont there is no law against concealed carry or other wise and never has been.also the high courts have never found that an antique firearm was an dangerous weapon,or instrument,or any other definition other than an antique firearm.( SEE US VS INTROCASO 2007), by the way there is a very large civil war renactment in central florida every year,i wonder how those fellows manage,you know with the law against open carry of firearms and all, oh maybe because they carry antique firearms ?
 
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Sam1911 said:
Read that statute again, carefully. It does NOT say, "so, one may openly carry..." anything. It defines a few things one may NOT carry. Prohibition against one thing is not equivalent to permission to do something else.

This crops up in firearms law frequently. A law may say, "you may not do X," and some will read that to say, "so everything else must be just fine." Not when some other statute prohibits those other actions.
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The law does not work in the manner of giving permission; if something is not prohibited, it is legal. I haven't found another statute prohibiting OPEN carry of other weapons. If you're aware of such a statute, please let us know.

As I said, Gutmacher mentions this in his book on Florida firearms law, though he doesn't address antique firearms specifically. That book is used as a text in several police training programs here, and Gutmacher is recognized as the leading Florida attorney on weapons laws.


Second, as I already pointed out, an antique firearm is not a "firearm" according to Florida law (unless used in a crime) BUT it certainly is still a "weapon" under 790.001, and thus under 790.01 as well.
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Yes, it is, but that statute only prohibits CONCEALED carry, not open.

I emailed Mr. Gutmacher about it, and here's his response:

I would think a court would likely interpret it as being a firearm for the open carry issue - but maybe not. No cases, and that's the best I can do in a grey area.

jhg
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So - anybody want to volunteer to be a test case?
 
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ed

Mr Gutmacher is Incorrect there are several cases where a defendant was acquitted on all charges relating to concealed antique firearms, open carry is not a concern,gator James says in his post above,he was an attorney in one instance,also the Florida highway patrol training bulletin plainly states that a antique firearm is not a firearm under Florida law,or federal law,and Federal law is the supreme law of the land as you all know,ill try to create a link to the Fla hwy patrol bulletin.= search (concealed firearms&weapons legal training bulletin pfd)What IVE FOUND IS THAT PEOPLE WANT THE LAW TO READ AS THEY SEE FIT,NOT AS IT ACTUALLY READS: FACTS:1.THE DEFINITION OF AN FIREARM IN FLA LAW DOES NOT INCLUDE AN ANTIQUE FIREARM.2.THE DEFINITION OF AN ANTIQUE FIREARM IN THE STATUES IS WHAT MAKES IT AN ANTIQUE FIREARM UNDER FLA LAW.3.OTHER DANGEROUS WEAPONS ARE DEFINED IN THE FLA STATUES,DIRK DAGGER,CHEMICAL SPRAY,ELECTRICAL DEVICE, CLUB ,BILLIE ,SLUNG SHOT,STABBING INSTRUMENT,ALL THESE ARE NOT ANTIQUE FIREARMS,THE FINDER OF FACT WOULD FIND THAT AN ANTIQUE FIREARM IS EXACTLY WHAT IT IS. MANY COURTS HAVE DECLINED TO FIND THAT AN ANTIQUE FIREARM IS A DANGEROUS WEAPON FOR LEGAL DEFINITION PURPOSES.:D
 
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andrewstorm said:
also the Florida highway patrol training bulletin plainly states that a antique firearm is not a firearm under Florida law,or federal law,and Federal law is the supreme law of the land as you all know
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States can enact laws that are more restrictive than Federal laws. In regards to carrying a firearm, an antique firearm IS a firearm, in Washington state.
 
Thanks, Navy, but we were discussing Florida law.

Andrew, if you can point to a specific finding in which someone was open carrying an antique firearm in Florida and it was determined by a court to be legal, I'll be glad to forward it to Mr. Gutmacher and see what he may know about it.
 
ed

Im waiting for gator to post the case on monday,My friend who worked for a ft lauderdale attorney and former senator told me of this years ago even before Fla was a shall issue state,It was common knowledge according to him,that's the reason i looked for reinforcing statues,and am now exploring the available case history,as there are a lot or snakes and other dangerous animals in Fla,even though you can legally carry openly while fishing,camping or hunting,or on the way to these activities,and in your car legally concealed without permit as long as your gun is securely holstered or in the console or glove box loaded is ok as far as i can tell. also ed what about the civil war renactors?they all open carry 1858 remmingtons,1860 colts,cannons ,gatling guns,unless theres some special statue allowing these renactments as there is in michigan,they are all open carrying antique firearms or replicas!
 
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I was responding to this specific comment:

andrewstorm said:
also the Florida highway patrol training bulletin plainly states that a antique firearm is not a firearm under Florida law,or federal law,and Federal law is the supreme law of the land as you all know
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Federal law is the supreme law of the land; HOWEVER, just because Federal law does not prohibit an action does not mean that action cannot be prohibited at the state level. I was using Washington as an example of a state where "antique firearm" is more restrictive than Federal law.
 
In Florida a felon cannot carry a "replica" of an antique firearm. See
http://www.5dca.org/Opinions/Opin2005/050905/5D03-3270.op.pdf
http://www.law.fsu.edu/library/flsupct/67036/op-67036.pdf

I sure would not want to be the test case to determine if I could carry an antique firearm or replica thereof without a permit.

However, if a black powder weapon was carried unloaded it would probably not be readily accessible for immediate use, so it may not fall within the statute pursuant to the Florida Highway Patrol blurb you cited:

http://www.flhsmv.gov/Bulletins/ConcealedLegalTraining.pdf

I would carry it that way if I had to, but I've got a permit so it's a moot point.
 
thanx for the link......

sabastian... and the case history, wow bostic is a felon and was told he could legally posses a antique firearm? then convicted on possession charges,even though the Fla law does not prohibit the possession of antiques by felons?the judge used a very good word ABSURD,and it shows how vague laws can be,IM not a felon,and I see that antique status is an affirmative defence for non felons in Florida,but as always you better have a good lawyer and the good lord on your side.I think There wouldn't be any question about antique status if bostic wasn't a violent felon,after all these laws were created to protect the rest of us from people who have or had the propensity to commit violent felonies,and it would be absurd if someone convicted on two armed robbery charges could carry and use a antique firearm let him use a bow instead,if he must hunt and is rehabilitated.Both of these cases seem to affirm that the fla corts do not consider antique firearms to be applicable to firearms law unless you are a prohibited person.sabastian:actually snaped in a holster is considered not availible for immediat use.
 
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Federal law is the supreme law of the land; HOWEVER, just because Federal law does not prohibit an action does not mean that action cannot be prohibited at the state level.
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Trying to use Federal Law as an excuse to carry a concealed weapon of any type is an exercise in futility.
The two main Federal laws concerning firearms are Title 27 Part 478 which is strictly concerned with the sale and possession of firearms and all of the minutia involved in the business end, etc.. No mention of open or concealed carry of any type.

The other is Title 18 USC (or GCA). The only mention of concealed carry can be found in part 926B which addresses carry by law enforcement officers, both active and retired. The same chapter specifically states that the Federal law in no way limits the various States right to control carry laws, either open or concealed. It does designate certain Federal facilities that have controlled carry rules.

So far the Feds have kept their noses out of this area. I know there are those that think there should be a national law concerning concealed carry, but I, for one, am very dubious of just what kind of restrictions they are likely to come up with. We all could become Illinois, NYC or California.
 
Mr Gutmacher is Incorrect there are several cases where a defendant was acquitted on all charges relating to concealed antique firearms, open carry is not a concern,gator James says in his post above,he was an attorney in one instance
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Sorry if I was confusing with my earlier post, but my case addressed whether a particular knife was a "common pocketknife," which is statutorily exempted from the definition of weapon. I'm not sure about the open carrying antique firearms issue, I would have to research it.
 
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