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    Greg and Beth

    the political and personal musings of two
    mountaineers living in west-central Florida
     
    Search Term Q&A: Carrying a Blackpowder Gun Comment
    Gregory Morris, 12/12/08 8:00:36 am
    Question: "open carry florida black powder guns"

    Answer: Good question. First of all, the necessary disclaimer: IANAL. I don't know all about gun-related case laws. Get a real lawyer if you want a real answer. All I can do is show you the statutes and suggest some additional considerations.

    Florida statute 790.053 expressly prohibits open carry of firearms. However, 790.001 says:
    The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.
    An "antique" firearm, by Florida law, is basically any gun made before 1918, or a replica thereof. "Antique firearms", however, are immediately considered "firearms" when they are used in a crime.

    So logically it follows that open carrying a pre-1918 blackpowder firearm or replica is not a crime in and of itself. However, don't count on the police and the courts giving your the benefit of the doubt, since they are not always logical.

    Consider this scenario... lets say you decide to open carry your civil-war replica revolver down to the local WalMart. Police get a "man with a gun" call, find you and arrest you despite your protesting. Once the police figure out that state law does not consider your pistol to be a firearm, they charge you with breach of the peace, or something similar. Now you have the difficult task of arguing that your black powder pistol was not "used in the commission of a crime". If it is determined that your possession of an openly carried antique firearm is enough that it was "used in the commission of a crime", then you have also committed the crime of openly carrying a firearm. If you are convicted, the penalty for open carry of a firearm in this state is up to 60 days and $500. Even if you beat the rap, you'll have plenty of legal fees.

    My suggestion is that you get a Florida Concealed Weapons Permit, and keep your weapon hidden. If you want to carry an antique gun for kicks and giggles, good luck keeping that powder dry.

    [Comments are closed after a month.]

    Re: Search Term Q&A: Carrying a Blackpowder Gun
    Matt, 12/12/08 8:50:14 am
    Interesting that Florida raises the antique gun limit to 1918 versus the Federal requirement of 1898 or before. Wouldn't that bring Florida law into conflict with Federal if an officer decided to apply Federal standards to the definition of a firearm if they found someone carrying it?
    Re: Search Term Q&A: Carrying a Blackpowder Gun
    Gregory Morris, 12/12/08 8:53:06 am
    No, because there is no federal law barring open carry of firearms, antique or not. The Florida statute that prohibits open carry of firearms uses the definition of firearms found in Florida law. I assume (once again, IANAL) that cops can't just pick and choose which standard they think the ban on open carry applies to.
    Hmm...
    name, 12/12/08 1:18:07 pm
    "An "antique" firearm, by Florida law, is basically any gun made before 1918, or a replica thereof."

    1911 Colt?
    Re: Search Term Q&A: Carrying a Blackpowder Gun
    Gregory Morris, 12/12/08 1:29:22 pm
    Interesting thought.

    The entire definition in statutes is here:
    "Antique firearm" means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

    It seems their intent is to include blackpowder guns and guns for which ammo is not commercially available. However, that's not how I read it. The "including any matchlock..." portion does not say "limited only to" early ignition systems.

    If the gun was made after 1918, it has to be a "replica" of something made prior to 1918. It would be pretty easy for a court to rule that "replica" means "nearly exact replica" and conclude that a modern 1911 is not a "replica" of an original M1911. The 1911A1, which is still made in nearly its original form, didn't go into service until 1924. So it is possible that an original M1911 would be considered an antique while an A1 would not be.

    I'm gonna have to go sift through Gutmacher's book about this question.
    Re: Search Term Q&A: Carrying a Blackpowder Gun
    deejay, 12/26/08 9:27:29 pm
    I am a retired jurist who does private mediations and arbitrations throughout the USA, which in general, has improved the conceal carry laws in the last 15 years thanks to Florida's original 1987 law.
    If I were still on the bench I would literally interpret this law to mean that you can carry an antique gun concealed w/o a CCL Why? It is NOT recognized as a firearm. Where you get in trouble is when you carry it open, which is legal, but the public and police find other laws for you to violate.
    My advice would be to carry it and tell NO ONE. Always carry a 'perp knife' so if you get attacked or robbed you can drop it in the confusion of the altercation and tell the cops and witnesses the perp attacked you with it and you responded with you 38 caliber Hopkin & Allen revolver made in 1889. 99% of the time the 'perp' will have a violent, felony record.
    There is RISK in every thing you do in this life. That includes blowing a perps head off!
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