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Florida Gun Laws: The Waiting Period |
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Gregory Morris, 1/11/08 3:00:28 pm |
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Let me begin with the requisite caveat: I am not a lawyer, thus there is a damn good chance that everything you are about to read is complete balderdash. If you have better information than this, by all means, leave me a comment.
Florida is considered "Pro Gun", and often referred to as the "Gunshine State". We do have a history of heading the charge on important issues such as right to carry laws and the castle doctrine. However, most non-Floridians aren't aware of the blatant stupidity that still exists in our state's gun regulations. I'm relatively new to the state, so I'm still working on figuring everything out. Back in WV, we had very few gun laws, and the only ones that were unclear related to having a loaded rifle in your vehicle during deer season, and fell under game management regulations instead of gun control. Regardless, deciphering the constitution, statutes and case law would fill a book. I'm have no intention of covering everything, rather, I just want to point out some of the inconsistencies and poorly written laws we have to deal with.
In this post, I am just going to cover the most obvious legal strangeness regarding firearms in the State of Florida: the Constitutional Amendment passed back in 1990, which imposes a mandatory 3-day waiting period on the retail purchase of a handgun, and related laws. Most of you know my feelings on waiting periods, so I won't bother ranting about how stupid, useless, and potentially damaging they are. What really gets under my skin is the idea that someone thought it would be a good idea to put this into the constitution instead of statutes. It is a stupid law, and it doesn't belong in the constitution (ironically, under the section "Declaration of Rights".) They included some common sense exceptions, but figuring out what applies and how is nearly impossible for the average mortal.
Anyway.... First of all, let's start out with some info and history. Part "a" of the amendment is the statement of the right to keep and bear arms:
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. This is not the original text, which has changed numerous times since the original constitution in 1838, however the meaning has not really changed much since 1885, when the text was changed to express recognizing a right ("shall not be infringed") from "granting" a right. Before 1990, this is all there was... the declaration of a right.
Part "b" imposes the waiting period, exempting holders of concealed carry permits:There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. ... Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. Part "d" exempts individuals trading in other handguns. Part "c" simply requires the state legislature to enact legislation regarding the criminal aspect of violation of the amendment.
There are three other places in Florida law that affect the required waiting period. First, there is another part of the constitution (Article VIII, Section 5, part "b") which begins: Each county shall have the authority to require a criminal history records check and a 3 to 5-day waiting period, excluding weekends and legal holidays, in connection with the sale of any firearm occurring within such county. (emphasis mine) Each county making up their own rules requiring a background check (the wording implies that a county can require the check for any firearm purchase, not just ones through FFLs which are already required.) Reading this alone would seem to imply that a county can severely limit gun shows and private sales. Of course, you have to scan through the rest of the laws to find out there is a "loophole" (more on that later.) Additionally, they can add a 3-5 day waiting period on long guns, and can extend the mandatory 3-day period for handguns to 5 days as well. There are 67 counties in Florida, and therefore, up to 67 different ordinances regarding waiting periods and background checks. Some of them predate the amendment, and are therefore out of date. Many of them are not written clearly, or use conflicting terminology. (Note: I am compiling a list of the ordinances, and working on a state map of waiting period ordinances.) Most counties, however, don't seem to limit firearms purchases any more than the state and federal government requires. Only the more populous counties have enacted additional waiting period requirements.
The second thing that affects waiting periods is actually in the Florida State Statutes (Title XLVI, Chapter 790, Section 0655). This, I believe, is the statute written to satisfy part "c" of the 1990 amendment. Section 3 makes violation of the waiting period a felony for both they buyer and the seller. That is all that was required of the amendment, but there is another part (Section 1b) which adds the additional requirement that retail gun stores keep sale/delivery records, and allow any law enforcement agency to review their them. Does that set off any alarms for you? It is bad enough that gun shops have to deal with the ATF breathing down their necks all the time, but now Officer Bubba can legally walk into a gun store and leaf through there records in an attempt to find a violation of the mandatory waiting period law. Keep in mind that "law enforcement", by the definitions in Florida law (934.02) also include attorneys who are working for the state, or any subdivision within the state. The records which are required by state law to be kept relate solely to handgun sales, however there is no wording in the law defining the format or the time period for which records must be kept. Do you see where there is possible room for abuse now? I am not aware of any actual problems or prosecutions based on this law, but I thought it was at least worth pointing out.
The third, and least consistent regulation relating to waiting periods is also in the statutes (Title XLVI, Chapter 790.33, aka the "Joe Carlucci Uniform Firearms Act".) 790.33 is mostly concerned with setting up complete state-level preemption of firearms laws. Parts 1 and 3 of this section do that, and rather well I might add. Part 2 is the odd one though. This is part is designed to explain the county-level exception to preemption, which exists in the constitution under Article VIII, Section 5 (as discussed above.) Inconsistency number one: this statute only allows for up to a 3-day waiting period, and for handguns only. As I understand it, the additional components of Article VIII Section 5 overrides this. As I mentioned above, Article VIII also made it seem as if a county could decide on its own that all sales at gun shows would require a background check. Well, in Florida law, the "gun show loophole" is not so much a loophole as it is positive, explicit law. "Ordinances authorized by this subsection shall apply to all sales of handguns to individuals by a retail establishment except those sales to individuals exempted ... but does not include gun collectors shows or exhibits, or gun shows." So the law limits a county's background checks to retail handgun sales only, and does include not include gun shows or private sales. At this point, it would seem that the ability of a county to require a background check is made entirely moot by federal law (i.e. - counties cannot actually require any more than federal law already does.) I'm pretty sure that's right. It is confusing regardless.
790.33 has some other oddities as well. In the list of exemptions, in addition to CWP holders and LEOs, the law includes:"Individuals who already lawfully own another firearm and who show a sales receipt for another firearm; who are known to own another firearm through a prior purchase from the retail establishment; " Interesting. Do gun stores know about this? It would be simple for me to just bring another gun with me, or even a sales receipt, when purchasing a new gun. Has this ever been practiced in Florida? The other exemption that caught my eye is: "Any individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement." I blogged about this previously. I had also never heard of these until recently, because I'm not sure most gun stores even know about them. My question is: are these exemptions valid, or does the "mandatory" wording in the constitution which does not offer these exemptions, overrule them? If they are still legal exemptions, then I'd think I could walk into a gun store where I've done business before and just say "look me up in your bound book and find that rifle I bought last week, so the waiting period does not apply to me." The problem is unless this is somehow clarified, both the buyer and seller face felony charges as defined by 790.0655. That may be why you never hear about these exemptions in a gun shop.
Notice how much there is to write about concerning only the waiting period in Florida? Just wait until I get into some of the other issues with concealed carry, firearms cars, defense-related laws, etc. Florida has some of the better laws in the nation, and yet they are still rather painful! I'd really like to see a concerted effort on the part of my state legislators to repair, clarify, and disambiguate these laws.
References:
FL Constitution Revision History
FL Constitution
FL Statutes
Update:
I thought about this as I was typing everything up, but I was too lazy to actually go and find it.
Update 2:
Oh, regarding the background check requirements... it seems that counties can in fact require checks for all gun purchases in places where the public has the right of access. This can affect gun shows, since the public generally has the right of access to the locations where they hold gun shows. The law is unclear, but that seems to be a common interpretation. That may be why (pure speculation, btw) Sun Coast Gun Shows doesn't have shows in Clearwater (Pinellas County) anymore. If anyone has better information, I'd love to hear it. |
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