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Florida Supreme Court rules on "Open Carry"

Discussion in 'Legal' started by hdwhit, Mar 14, 2017.

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  1. hdwhit

    hdwhit Member

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    A similar thread was closed because the link was to a biased article rather than the actual opinion. Frank Ettin suggested the Norman decision was worthy of discussion if we were going to discuss the actual decision and not someone's perspective on it, so here's a link to the decision:

    http://www.floridasupremecourt.org/decisions/2017/sc15-650.pdf

    The decision along with the dissent by two justices is 57 pages long, so it will be a good read.
     
  2. Ohio Gun Guy

    Ohio Gun Guy Member

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    TO me, the court is effectively saying, because the State of Florida has provided some means of carry, and reasonable exceptions to the ban on open carry, they therefore have not infringed the "Right to keep and BEAR arms"

    I disagree: What I think this comes down to ultimately, is the "Level of Scrutiny" that the Second Amendment "requires" which was touched on, but not fully defined in Heller.... The Second Amendment as all of the Enumerated Rights should have the highest level of Scrutiny regarding any laws, and this decision should be reversed. This decision in Florida would make in not possible to "Bear" arms without a state issued license. While the court thinks the current prohibitions are about right.... These rules could be, and are likely to be changed. Meaning, an enumerated right, is now subject to continual review and further adjustment, when in fact it should enjoy "Strict Scrutiny" and not be subject to the "Whim" of the day.

    I hope we get our replacement "Conservative" Supreme Court Judge before this and other cases make their way to the Supreme Court.
     
    stoky likes this.
  3. Mainsail

    Mainsail Member

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    I haven't read the decision yet, but if the quoted part is true, then they will have to eliminate the fees for concealed carry permits. Poll tax anyone?
     
  4. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Poppycock.

    In reality, poll taxes are one thing, but there are various fees associated with the permissible regulation of rights protected by, for example, the First Amendment:

    • Some municipalities charge fees for the issuance of parade or public assembly permits.

    • The SEC and various state regulators regulate (abridge) certain speech used to solicit the purchase of securities, investments, or insurance. Fees are charged for the required filing and approval of written materials.

    • The FDA regulates (abridges) speech used to market prescription drugs and charges fees for the review and approval of certain marketing and packaging materials.
     
  5. Mainsail

    Mainsail Member

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    I think California has warped your thinking. The fee you pay to hold a parade, a "fee associated with the permissible regulation of rights" , is a fee to cover the municipality for the added expense of you holding the parade (police overtime, trash pick up and disposal, etc) in the first place. The fee you pay to FL for a concealed carry permit exists solely to support the permitting system. Remove the permitting system and the added expense to the municipality likewise vanishes.

    EDIT to clarify.
     
  6. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Cite legal authority.

    Your problem is that when it comes to the law you're ignorant. You are not educated in the law, and you have not studied the law. And you certainly have never practiced law.
     
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  7. Mainsail

    Mainsail Member

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    lol why did I KNOW you would trot that out? Cite it yourself. PROVE to me beyond the shadow of a doubt, citing actual law, that I am wrong.

    If not, please change the name of this forum from Legal to Frank's Authoritative Legal Opinion. You may as well start, provide all the content of, and resolve, every thread.
     
  8. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Nope. It's your claim so you must prove you're right.
     
  9. Frank Ettin

    Frank Ettin Moderator Staff Member

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    For one example, here is the ordinance in Provo, Utah relating to public assembly permits. The fees are charged for the review of the application and a determination that the city's health and safety requirements are met. The fees do not include services being provided by the city in connection with the assembly. An applicant for a permit would be responsible for the additional costs of services necessary to satisfy the city's health and safety requirements.
     
  10. dh1633pm

    dh1633pm Member

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    Just because a law, such as the one for Public Assembly Permits in the city of Provo Utah, doesn't mean that the law or laws could pass scrutiny.
     
  11. MarkDido

    MarkDido Member

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    Florida disappoints me.

    We were among the first states to go to a "shall issue" system back around 1986, but we align ourselves with gun unfriendly states when it comes to open carry.
     
  12. gun_with_a_view

    gun_with_a_view Member

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    Those fees must be for the recovery of actual cost only. No profit is permitted for any state agency of any state. Of course, everybody in state governments turns their blind eyes away from this.

    Read the next-to-the-last paragraph in this for the solution:
    http://www.breitbart.com/texas/2016/12/01/texas-senators-promote-end-licensed-carry-fees/

    And, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB16
     
  13. Spats McGee

    Spats McGee Moderator Staff Member

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    Got some legal support for this? I sincerely doubt that any agency with which I've ever worked has turned a profit, but I've never seen anything that said gov't agencies were prohibited from making a profit.
     
  14. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Even if there is law to support this claim, there are still permits required to do some things which are generally constitutionally protected; and governmental entities incur expenses reviewing permit applications and administering the permit process, and they therefore charge fees for such applications.

    Evaluating (under the appropriate level of scrutiny as determined by a court) any permit requirements for an activity which has constitutional protection can be broken down into four steps:

    1. First would be a determination of whether there a sufficiently significant governmental interest in regulating the activity.

    2. Second would be a determination of whether permit criteria are sufficiently narrow and related to the furtherance of those interests.

    3. Third, would be a determination of whether the permit requirements excessively burden the right.

    4. Fourth, would be a determination of whether the fees charged excessively impair the right.


    Phooey! What evidence do you have to back that up?

    Whether it's a problem and whether that is the solution are both questions which can be subject to debate and disagreement.

    Which only confirms that there is a bill pending.
     
  15. jdc1244

    jdc1244 Member

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    Nonsense.

    The Florida Supreme Court has ruled in a manner perfectly consistent with current Second Amendment jurisprudence, as is the case with Florida firearm regulatory measures – to prohibit the open carrying of firearms is not to be ‘unfriendly’ with the rights enshrined in the Second Amendment.
     
  16. gun_with_a_view

    gun_with_a_view Member

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    That is the big stopper for most regulatory bodies attempting to regulate handgun permits. They will be unable to prove in their regulations do anything more than clog up the courts.

    To date with respect to concealed handgun permits, I have not seen any legal argument from any quarter that elicits a compelling state interest and thereby is constitutional. The kicker here is regulations go into court with a presumption of unconstitutionality, and the plaintiff must show otherwise. That requires evidence that for the most part isn't there and is not easily generated.
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    How would you know? True to form you're just making up stuff. I could conceive of a variety of potentially arguments as to why a State would have a significant, even compelling, interest in assuring that person lawfully carrying loaded guns in public have at least some basic level of proficiency, a basic understanding of use-of-force law, and are not prohibited persons.

    The issue hasn't yet really been joined. But even so, the Florida Supreme Court in Norman points to various Circuit Court decisions finding an important or compelling state interest in the regulation of firearms.
     
  18. Ohio Gun Guy

    Ohio Gun Guy Member

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    I would think a more legally consistent answer for the court would be permitting "permit-less" concealed carry that several other states have gone to, then the prohibitions against open carry are less intrusive in my mind because the average citizen no longer needs a permit to exercise a fundamental right (Examples above not withstanding)... But none of this really works well for long guns! The Court cited the several exceptions to the law for taking long guns to and from hunting, shooting ranges, etc. The problem I have with that is you make the simple possession / of long arms a legal exercise.... Examples if the extreme: Washington DC and other large Cities often use a web of laws that have the desired effect of greatly discouraging LEGAL firearm Ownership. (We also see it has little effect on illegal gun ownership & gang violence)
     
  19. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Why would this be more legally consistent? Remember that once you modify the word "consistent" with the adjective "legally" you constrain yourself to to support your position based on legal precedent and established legal principles. What something might be "in your mind" means nothing.

    But why do your problems with something have any legal significance? The practical problems you might see in something really raise issues of policy which are properly addressed to the legislature.

    A court is supposed to decide the outcome of the dispute before it based on the law. If proper application of the law to a particular matter has unsatisfactory policy or practical results, it would be the province of the legislature to try to fix things within the scope of its powers.

    Think "separation of powers" and "checks and balances."
     
  20. gun_with_a_view

    gun_with_a_view Member

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    Perhaps you could articulate some of those arguments. As you say, "What something might be 'in your mind' means nothing."


    Such lower court findings which have made their way to SCOTUS have all been reversed. There aren't many yet (Heller and MacDonald), but there will be eventually. Pertua looks like it could be next.
     
  21. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Except you apparently didn't understand what I wrote in my post. I wrote:
    That is absolutely a true statement not subject to debate. It is a statement about what is in my mind, and I certainly know better than anyone else what is in my mind.

    Any significance that exercise in prognostication might have derives from my reputation for credibility with regard to legal matters. It is, in effect, professional speculation. It is also where I would start if I were engaged by a governmental client to defend a permit system.

    Nor are we without reason to believe that properly framed arguments along the lines I outlined:
    would resonate with a court, e. g.,

    • The Seventh Circuit in invalidating Illinois' nearly complete ban on the carrying of a gun outside the home noted in dicta (Moore v. Madigan, 702 F.3d 933 (7th Cir., 2012), at 940 -- 941):

    • The Ninth Circuit in the now sadly vacated panel opinion upholding a challenge to California's good cause requirement noted (Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir., 2014), at 1178, emphasis in original):

    Which ones have been reversed based on a finding that there is no important state interest in regulating firearms?

    Exactly where in Heller or McDonald did the Court say that there is no important state interest in the regulation of firearms? In fact the Court in Heller said (Dist. of Columbia v. Heller, 554 U.S. 570 (2008), at 626):
     
  22. gun_with_a_view

    gun_with_a_view Member

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    The concealed weapons prohibitions and state analogues upheld in the past all dealt with keeping arms out of the hands of "bad hombres". As such, they are not good law and have no relevance in the adjudication of gun rights for personal protection.

    SCOTUS gave pitifully few examples of gun regulation (see text below). While there are probably hundreds if not thousands of gun regulations on the books nationwide, SCOTUS knew better than to quote anymore bad law as applying to the 2nd Amendment.

    To wit:

    <<<Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons>>>
    https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
     
  23. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Why? Because you say so? Cite authority.

    So what? Justice Scalia was not attempting to write a comprehensive catalogue of gun laws. But he did do a pretty thorough historical survey of RKBA cases for the purpose of illustrating how the RKBA as protected by the Second Amendment has been understood by the courts.

    You're assuming facts not in evidence. "Anymore (sic) bad law"? What bad law did the Court quote? What bad law did the Court apply to the Second Amendment?

    Furthermore how do you presume to tell us what the Supreme Court knew? Did Justice Scalia come to you in a dream and tell you that? Did you plant a listening devices in the chambers of the Supreme Court? Are you claiming to be able to read minds and therefore know the private thoughts of the Justices of the Supreme Court? Phooey!

    What we can know of what the Supreme Court knew is what they tell us in their opinions.
     
  24. D.B. Cooper

    D.B. Cooper Member

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    I grew up in Florida and lived there about that time. I believe that Florida wasn't "among the first," I believe (I could be wrong) we were the first state to create "shall issue" carry permits. This was during the governor Martinez years, I believe. BUT...do you recall the system that was in place, for only a few weeks, immediately prior to Florida's shall issue system?

    I do. It was what today is called "constitutional carry." For a few weeks in 1986 it was legal for everyone to carry a gun with no permit, no background check (other than that required to buy the gun) nothing. And I vividly recall photographs on the front page of the Tampa Tribune of two guys drawn down on each other at a traffic light as a result of a dispute over a vehicle collision. There were similar events all over the state. The state legislature very quickly reconvened to repeal the law, and the current, well-known, and in my opinion, rather successful, shall-issue system was created in the aftermath.

    I guess what I'm trying to say is, don't be so disappointed with Florida for not having open/constitutional carry-we tried it once before, and it seems like only a few want to return to those days.

    Of course, I haven't lived there in a very long time, so I have no say in the matter. But those are my memories of Florida's brief foray into open carry.
     
  25. gun_with_a_view

    gun_with_a_view Member

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