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FL Supreme Court To Decide Is Carrying A Gun A Crime Even With A Carry License? Post
FL Supreme Court To Decide Is Carrying A Gun A Crime Even With A Carry License?
Posted on September 18, 2012 by Ammoland
Tags:Florida|Florida Carry|Lawsuits
Florida Carry

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!

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

das, proud to be a member of since Sep 2012.
Sucks to be in Florida. Didn't they just do away with open carry?
"As I lay rubber down the street I pray for traction I can keep, but if I spin and begin to slide, please dear God, protect my sweet ride."
How have things gotten this turned around? Republicans are stereotyped as old fashioned, God and country boys, democrats are stereotyped as protectors of civil Rights, standing up to the Man. Somehow we end up with guilty but you can just prove you're innocent and if you have nothing to hide what's the big deal laws.
They all give their campaign speeches and talk about freedom and liberty, the ideals that make ours the greatest country in the world. They're all patriotic, down home and apple pie. Then they spend every day, day in day out writing and pushing bills to restrict and ban and make illegal one thing and another.
Is it really so difficult to see what we have become?
I am so tired of all the anti bullshit. Doesn't it get tiresome to them? Don't they read facts and statistics? Don't they have some one else to bother?

All most of us gun owners want to do is carry our guns, shoot our guns, talk to our buddies about our guns, and be left the hell alone.

As for carrying a gun always being a crime I point to exhibit A:
[Image: icon.jpg]
[Image: sig%2520banner%25202.jpg]

Pround member of since September 2012
Gadsden_clr You can add this as exibit B.




SECTION 8.Right to bear arms.—
(a)The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.
NRA life member/ILA/PVA/Whittington Center sponsor
GOA member/Second Amendment Foundation member
NAHC life member
KECA founding committee member
(09-19-2012, 11:25 PM)Yosemitesam Wrote: Gadsden_clr You can add this as exibit B.




SECTION 8.Right to bear arms.—
(a)The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

That's actually pretty shitty, and actually violates the second amendment of the US Consitution. I guess we are spoiled in PA, our Consitution actually strengthens the second amendment.
” except that the manner of bearing may be regulated by law” WTF??? !!
It really does stink that we law abiding gun owners have to constantly fight to keep a right that was written purposely by the founders of this once great nation. It does get old and frustrating but we can not stop fighting, because when the day comes that we stop we will lose it all.
das, proud to be a member of since Sep 2012.
The policeman's union must be pissed crime is going down with all these people buying guns in the wake of the dear leader's policies and economic ruin he's imposed and with all these new people defending themselves lawfully like Zimmerman with their new stand your ground law. They need to bump up crime so they can justify those budgets. They also can now place an order to buy more chalk to draw lines around people with too.
The forum poster formerly known as Emoticon...

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