Florida House Bill 543 “Constitutional Carry” Must Be Amended or Rejected to Protect the Fourth Amendment Rights of Law-Abiding Floridians
Our Great State of Florida is poised to pass through its Republican Supermajority Legislature something that has proven strangely elusive--dispite twenty-five years of Republican domination. During the pandemic, our State by virtue of the prescient stewardship of Governor Ron Desantis rightfully earned the moniker of “The Free State of Florida” due in large part to the Governor’s rejection of the Covid/CDC tyranny imposed throughout America. Liberty-minded Americans envied Florida’s sanity when the rest of the world went mad.
This brings us to the Legislation of House Bill 543, or what is commonly called “Constitutional Carry”. This is a long overdue piece of legislation. Nonetheless, and despite the deepening “red” hue of the State, it is one that Florida politicians have been extremely reticent to pass. What at first will seem counterintuitive will become markedly clear with additional information. That is, fierce defenders of liberty should bristle rather than cheer this law under its current construction, as without modification the legislation will dramatically reduce the rights of otherwise law-abiding concealed weapons-carrying persons in Florida.
“Constitutional Carry” at its most basic level is an affirmation that the Second Amendment of the United States Constitution means what is stated plainly in the text, specifically that “the right of the people to keep and bear Arms, shall not be infringed." Further, this is a conspicuous declaration that free people need not ask their Government for permission and pay a fee to exercise a right expressly granted by their Founding Fathers. As of the date of publication the following twenty-five (25) states currently have “Constitutional Carry”: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, Wyoming. Shockingly, President Biden’s home state of Delaware is an open-carry State, while in the “Free State of Florida” it remains a misdemeanor of the second degree in Florida.
Current law requires Florida residents who wish to carry a Firearm or Weapon to apply for and be granted a Carrying Concealed Weapons License (CCW) with the Florida Department of Agriculture. While the author of this article unequivocally supports “Constitutional Carry” and the notion that otherwise law-abiding citizens should not have to ask their government for permission to carry a weapon or firearm, House Bill 543 must not be enacted in its current form. The following is the current construction of House Bill 543 with the problematic text italicized in bold:
Concealed Carry of Weapons and Firearms Without a License; Authorizes person to carry concealed weapon or concealed firearm if he or she is licensed to do so or meets specified requirements; requires person who is carrying concealed weapon or concealed firearm without license to carry identification & display upon demand by law enforcement; prohibits person who is carrying concealed weapon or concealed firearm without license from carrying such weapon or firearm in specified locations; authorizes nonresident to carry concealed weapon or concealed firearm in this state if he or she meets same requirements as resident; provides person authorized to carry concealed weapon or concealed firearm without license is subject to specified penalties for possessing such weapon or firearm at school-sponsored event or on school property.
Under House Bill 543, a person who is licensed or who meets specified requirements can carry a concealed weapon or firearm without first being granted a CCW license. However, if someone is carrying a concealed weapon or firearm, they must carry identification and display it upon demand by law enforcement.
As written, the proposed bill threatens to infringe on the Fourth Amendment rights of lawful gun owners by giving law enforcement the power to seize firearms or weapons from individuals who are lawfully carrying them. The plain language of House Bill 543, gives law enforcement officers nearly unbridled power, any time he or she believes the citizen may possess a weapon or firearm, to demand from him his identification. Moreover, the officer may detain the citizen for a period… This is in direct conflict with the current case law in our State which does not presume that the mere possession of a firearm is probable cause or even reasonable suspicion of criminal activity. As the Court stated in Kilburn v. State:
“the fact that millions of Floridians may lawfully carry concealed weapons means that the idea of law enforcement seizing their weapons until their licenses are verified is antithetical to 4th Amendment jurisprudence.”
Further, "No court would allow law enforcement to stop any motorist in order to check for a valid driver's license."
The Florida case precedent referred to is, of course, based upon The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution. Both guarantee the right to be free from unreasonable searches and seizures. The Florida Constitution expressly provides that this right is to be construed in conformity with the Fourth Amendment as construed by the United States Supreme Court. The seminal case in Fourth Amendment jurisprudence is Terry v. Ohio, wherein the United States Supreme Court held as follows:
“[W]here a police officer observes unusual conduct which causes him to reasonably conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him.”
The Terry ruling requires that law enforcement have a reasonable suspicion of criminal activity and that the subject might be armed in order to do a stop-and-frisk. Bearing arms is not only legal, but it is also a specifically enumerated right in both the federal and Florida constitutions. The citizens of Florida have spoken through our Legislature and have stated that those who possess a license to carry a concealed weapon have the right to carry a concealed firearm; "the mere presence of a weapon without something more—is inadequate to justify a temporary stop or seizure of a person or property".
Considerably more liberal courts around the country have consistently held that mere possession of a firearm or weapon that briefly becomes unconcealed does not, by itself, justify a stop or temporary seizure of the unconcealed firearm to determine if it is legal. In order for a violation of the State's open-carry law to occur, it is not enough for an officer to see an unconcealed firearm. It is not a violation of the open-carry law for a person "to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense."
Stated plainly, House Bill 543 should either be amended to remove all restrictions on a person’s Fourth Amendment rights or be rejected outright, as it would infringe on the Fourth Amendment rights of lawful gun owners in Florida for the above-enumerated reasons. The proposed law would allow law enforcement to seize firearms or weapons from individuals who are lawfully carrying them, without reasonable suspicion of criminal activity. This would reverse years of pro-liberty jurisprudence and revert to the decades of previous treatment of the Second Amendment as a “disfavored” right.
Curiously, what is the point of removing the requirement that law-abiding citizens ask their government for permission to carry a weapon or firearm if they end up having to produce proof that they are lawfully carrying that weapon or firearm based on the simple whim of law enforcement? Our great Founding Father Benjamin Franklin once famously extolled "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." This is a warning that our Florida Courts have clearly heeded, and we must demand the same of our Legislature, lest the “Free State of Florida” won’t end up being so free after all.