Friday, November 15, 2013


There are people in this state that are in a panic about Leon county's proposed Universal Background Check ordnance. This topic comes up from time to time, and I have blogged on this before.

This is a big deal over nothing. Florida has preemption, and the only exception is found in Article VIII, Section 2(b):
(b) 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. For purposes of this subsection, the term “sale” means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access. Holders of a concealed weapons permit as prescribed by general law shall not be subject to the provisions of this subsection when purchasing a firearm.

Note that the only time that the county may require a background check for a transaction conducted between private parties who are not dealers (transactions at a dealer must go through a check and have a waiting period, but again, CCW holders are exempt from the waiting period) is when the transaction occurs on property to which the public has the right of access. The only place that the public has such a right is on property owned by the government. The public has no right to access on private property. This means that the background checks may only be required if you are conducting the sale on the roadway, a park, a gun show held at a civic center, etc.

Note also that there is a specific exception for people that hold a concealed weapons permit.

Even better, take a look at 790.33, which is the state's preemption statute:
Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void. 

The state went on to say this:

Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.

So the law is unenforceable. What happens if the law is passed anyway? What if the cops then arrest you? That is the best part:

If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel. 
If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred. 
Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section. A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the Governor. 

They will be fired, fined $5,000 PERSONALLY, they cannot use taxpayer funds to hire a lawyer, and you can sue them. I am sure that, should this pass, Florida Carry will be all over it. Send some money their way, they are fighting the good fight.

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