FL Supreme Court to Decide – Is Carrying a Gun a Crime Even With a Carry License?

The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We all know that the police can’t generally just stop and search you when you’re just out in public and minding your own business.  You have a Fourth Amendment right that protects you from such invasions of your privacy.  Unless you are attempting to go in to a secured “sensitive place”, there must be a reasonable suspicion that you are committing a crime for a police officer to search you.  That is, at least so long as you don’t exercise your Second Amendment right also.

In 1984 the Florida Supreme Court ruled that there can be no assumption that everyone carrying a gun is doing so unlawfully because the legislature intended to exempt carry licensees from the crime carrying a gun.  This made the absence of a license to carry a necessary element of the crime of Concealed Carry.

The Florida high court came to this conclusion by analyzing the statute and applying a general rule regarding exceptions and prepositional phrases.  Most importantly, it said:

A court’s main guide in construing a statute is the legislature’s intent.  Accordingly, general rules of statutory construction, such as the one in Baeumel, are designed to help courts ascertain the intent of the legislature.  As stated above, however, Baeumel is a general rule, and in some cases the placement of a statutory exception is not determinative of the legislature’s purpose regarding a statutory exception.
State v. Robarge (450 So. 2d 855) (internal citations omitted).

Then, in 1987 Florida changed its law to create a statewide licensing system for concealed carry.  This did away with the former law that based the licensing of concealed and unconcealed carry with County Commissions. This was the famous “Shall-Issue” law that made Florida the prototype for concealed carry laws nationwide.  Today nearly 1-million people have current Concealed Carry Licenses under this law.

The problem is that when the law was changed, the legislature didn’t use the general rule of statutory language construction that was used in the previous statute.  This gave prosecutors another bite at the apple.  The courts started to ignore the legislature’s intent and instead, just looked to the technical structure of the updated concealed carry statutes.

Now the courts are saying that anytime you carry a firearm you are committing a crime.  If you have a concealed carry license, that just gives you an “affirmative defense” to the charges. 

Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person.

The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an “exception” to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense. Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)

Obviously this result is not what the legislature intended when it was trying to make carrying easier in 1987.  Regardless, the courts have be skipping the intent analysis done by the Supreme Court in 1984 and are instead misquoting the case by using just a small part of the Robarge decision and citing it completely out of context.

See also State v. Robarge, 450 So. 2d 855 (Fla. 1984) v. Robarge, 450 So. 2d 855 (Fla. 1984) (holding that under rules of statutory construction, if an exception is contained in a clause subsequent to the enactment clause of a statute, the exception is an affirmative defense rather than an element of the offense);
Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)

So…  In order for the police to stop and frisk or arrest you, they must first observe facts supporting a reasonable suspicion that a suspect is engaged in criminal activity or have information suggesting the possession of a firearm is unlawful.

Now, under the Mackey decision, any time you exercise your Second Amendment right you are engaged in presumably criminal activity.

Therefore, you can be stopped, searched, and even arrested for carrying a firearm and then be made to present the “affirmative defense” to a judge that you have a valid concealed carry license.


This Mackey case has been appealed to the Florida Supreme Court (SC12-573).  Florida Carry is filing an Amicus Brief on behalf of the law-abiding gun owners of Florida to reverse this dangerous precedent.

Filing fees, printing costs, and other necessary fees are expensive.
We NEED your support so that we can continue to defend your right to carry.

Please Join Florida Carry or Donate Today.

This entry was posted in Guns. Bookmark the permalink.

4 Responses to FL Supreme Court to Decide – Is Carrying a Gun a Crime Even With a Carry License?

  1. Pingback: Sharp as a Marble - Why do we protect the worst society has to offer?

  2. JD Kinman says:

    The judiciary branch of our government (federal, state, local) has now become an enemy of the People as it no longer follows the Constitution.

    JD Kinman

  3. Pingback: Constructing Statutes | Shall Not Be Questioned

  4. Paul says:

    The purpose of this challenge is NOT to decide whether carrying a gun is a crime even with a carry license. The question is whether mere possession of a concealed firearm, absent information suggesting that the possession is unlawful, gives a police officer reasonable suspicion to search you.

    Mackey DID NOT have a concealed carry permit, and he’s a felon. Those are not the matters at contention. The question is whether the cop was right to search him.

Comments are closed.