November 8, 2023
Second Amendment to the United States Constitution
New Mexico State Governor Michelle Lujan Grisham (D) recently issued an executive order on September 8, 2023, suspending for 30 days, New Mexicans’ rights to carry guns for self-defense in the City of Albuquerque in response to gun violence in that city. Her order was issued days after an 11-year old child was killed in Albuquerque. When she was questioned about her order’s impact on the Second Amendment, the Governor retorted that “no constitutional right… is intended to be absolute.” A U.S. District Court Judge blocked the order on September 13, 2023. Governor Grisham reworked the order, limiting the ban on concealed carry to parks and playgrounds, and that order was allowed to stand.
Local law enforcement officers defended the Second Amendment right, such as Albuquerque Police Chief Harold Medina, who responded to the Governor’s order by saying that he would not enforce it. He wasn’t alone. Bernalillo County Sheriff John Allen also refused to enforce the “unconstitutional” ban on concealed carry. Sheriff Allen was quoted saying, “It’s unconstitutional, so there’s no way we can enforce that order.” Sheriff Allen also shared his professional opinion that the order “does nothing to curb gun violence.” Some wanted the Governor to face possible impeachment for taking the political position that gun violence creates an emergency exception warranting suspension of the Second Amendment right to keep and bear arms.
In our neck of the woods, Floridians can now carry concealed guns without a permit since July 1, 2023.
Florida State Governor Ron DeSantis (R) signed the bill in April 2023 that did away with mandatory training, licensing fees, and background checks previously required to carry a concealed firearm. Some legal scholars have expressed concerns that permitless carry laws may result in an increase in violent crime. A 2019 study published in the Journal of Empirical Legal Studies found that states that have adopted similar permitless carry laws may result in an increase in violent over the next decade between 10% and 15%.
A poll at a Florida university found that more than 70% of Floridians don’t like this new law which allows anyone who can legally own a firearm in Florida to carry a concealed firearm without a permit. Those who do carry must provide valid identification if requested by law enforcement. The new law does not allow crossing state lines carrying a firearm or entering areas which prohibit firearms.
You can still get a concealed firearm permit, which provides reciprocity in some other states.
Even before this new law, Florida had a “shall issue” concealed carry law.
See Fla. Stat. § 790.06(2) (“The Department of Agriculture and Consumer Services shall issue a license if the applicant” meets the enumerated criteria) (emphasis added); Norman v. State, 215 So. 3d 18, 45 (Fla. 2017)(“shall issue” concealed carry law “broadly require[s] issuance of concealed carry permits subject to narrow exclusions.”). The Department is responsible for the issuance of concealed carry licenses after determining whether an applicant is eligible. See Fla. Stat. § 790.06(1). It has no discretion to deny a concealed carry license to an applicant who meets the statutory criteria. Norman at 21 (plurality opinion) (finding that Fla. Stat. § 790.06 “leaves no discretion to the licensing authority, the licensing authority must issue an applicant a concealed carry license, provided the applicant meets objective. statutory criteria.”)
Florida grants to all qualified persons not only a state constitutional right “to keep and bear arms in defense of themselves,” Art. I, § 8(a), Fla. Cons., but also the statutory right “to own, possess, and lawfully use” weapons, including firearms, at one’s “home or place of business” without the restrictions against the open carrying of weapons or firearms imposed by Fla. Stat. § 790.053, or the prior requirements of concealed carry permits imposed by Fla. Stat. § 790.06. See Fla. Stat. § 790.25(3)(n).
Florida provides a right to openly carry a weapon or firearm while one is inside his or her residential property or place of business. Even when one is not at his or her home or place of business, it is not unlawful in Florida to “briefly and openly display” a lawfully carried firearm “to the ordinary sigh of another person,” so long as the firearm is not being “intentionally displayed in an angry or threatening manner” when the display of the firearm is “not in necessary self-defense, it must be readily available and loaded, neither of which can be effectively and safely done if the firearm cannot be taken out of concealment or storage and openly displayed while being loaded and held.”
Burns v. State, 361 So 3d 372, 377 (Fla. 4th DCA 2023).
The new law, 2023 Fla. Senate Bill No. 150, Florida 125th Regular Session, has necessarily changed the letter of the criminal law. See Fla. Stat. § 790.01:
(1) A person is authorized to carry a concealed weapon or concealed firearm, as that term is defined in s. 790.06(1), if he or she:
(a) Is licensed under s. 790.06; or
(b) Is not licensed under s. 790.06, but otherwise satisfies the criteria for receiving and maintaining such a license under s. 790.06(2)(a)-(f) and (i)-(n), (3), and (10).
(2) Except as provided in subsection (5), a person who does not meet the criteria in subsection (1) and who carries a concealed weapon or electric weapon or device, as those terms are defined in s. 790.001, 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.
(3) Except as provided in subsection (5), a person who does not meet the criteria in subsection (1) and who carries a concealed firearm, as that term is defined in s, 790.001, 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.
To find out whether you qualify to obtain a concealed carry license, see the enumerated criteria under Fla. Stat. § 790.06(2). Criminal defense lawyers have a duty to keep up-to-date on changes to the criminal code to render the effective assistance of counsel that every individual is constitutionally entitled to receive. The changing legal landscape has directly impacted what constitutes a concealed firearm offense under Fla. Stat. § 790.01.
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