Lee’s note: Here is an extremely thorough examination of the new gun control law Gov. Rick Scott signed last week, from our good friend Cindy Clark, a Sarasota attorney who’s incredibly knowledgeable about gun trusts, estate planning and elder and firearms law. I haven’t seen a better analysis.
Bad Law: Marjory Stoneman Douglas High School Public Safety Act
So, after three weeks of media hype and a circus-like spectacle, Governor Rick Scott signed this bill into law. Politics aside, the bill was horribly written and will likely face many court challenges over the next few years. Weeping teens and hysterical, uninformed parents demanded action. “Do something!” they screamed. So, our legislators did something – they passed this fig leaf of a law and kicked the can to the courts.
Article III, Section 6 of the Florida Constitution says: “Laws—Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” Get that? One subject and matter, briefly expressed in the title. If you haven’t actually read the new law, read all 105 pages now.
The first ten pages merely describe what the law does in general terms – before the bill even gets to the name of the law! And does the title – Marjory Stoneman Douglas High School Public Safety Act – briefly express the subject and matter of the law? What exactly does “public safety” mean? Well, as anyone who’s studied Constitutional Law can tell you, that’s the back door that state and local governments use to pass pretty much any laws they want. Calling something a “public safety” concern is magical – it almost always gives the government broad, sweeping powers to trample on individual rights.
And what exactly is the “subject and matter properly connected therewith?” Apparently, it’s everything but the kitchen sink:
- allowing certain school employees to voluntarily train for school “guardian” programs (the word “marshal” was too scary, so it was changed);
- allowing retired law enforcement officers to be re-hired as school resource officers (a couple of pages were dedicated to discussing how govt. retirement benefits would be treated);
- giving more money to rape crisis centers (huh?);
- making a new law regarding prohibitions against firearm ownership that are already covered under federal law (under 18 U.S.C. § 922(g)(4), people adjudicated mentally defective or committed to mental institutions already can’t buy or own guns);
- allowing law enforcement officers to forcibly take a person and any weapons found on the person when a judge issues an ex parte order (that’s an order given by a judge based solely on the testimony of the accuser – the accused hasn’t yet had a chance to defend himself) that that person is a threat to himself or others;
- allowing law enforcement officers to request that a person subject to such an ex parte order voluntarily give up all weapons on the premises and elsewhere, and if he doesn’t, the law enforcement officer can seek a “risk protection order” from the judge to take them forcibly (the accused has to prove to the court by clear and convincing evidence that he’s NOT a threat before he can get his guns back);
- dumping more responsibilities onto an already over-burdened and under-staffed Dept. of Children and Family Services (that failed miserably with Cruz);
- creating a new Office of Safe Schools division in the Dept. of Education;
- broadening the existing law prohibiting threats to kill to include threatening a mass shooting, and posting such threats on social media or other generic platforms (not just directly to the potential victim or his family);
- creating yet another government commission;
- raising the age to buy a rifle or shotgun from 18 to 21;
- making anyone who possesses a bump-fire stock or similar accessory a felon as of October 1, 2018;
- creating more school district administrative positions;
- authorizing the hiring of outside contractors to create “risk assessment” tools and other projects for school districts;
- extending the current 3-day waiting period between purchase and pickup to all firearms, not just handguns;
and lots more…
Other than the school guardian program and maybe the law prohibiting threats of mass shootings, I don’t see anything in this law that would have changed a thing at the recent school shooting. And there’s not one word in there about hardening schools, or removing the “gun free zone” laws.
While the newly expanded authority given to judges and law enforcement officers to eliminate an accused person’s Second Amendment right without due process horrifies me and raises the little hairs on the back of my neck, the laws involved are complicated – even lawyers and judges argue over them. So I’m only going to address three of the new laws: raising the age to buy guns from 18 to 21; banning bump-fire stocks; and extending the 3-day waiting period to rifles and shotguns.
Raising the minimum age to buy firearms to 21
The way the current version of the law is worded, it’s now illegal for 18, 19, and 20-year-olds to buy any firearms. Period. (There are some exceptions for law enforcement, correction officers, and active duty military, but not young veterans). But it’s not illegal for those same people to possess firearms or to obtain them as gifts.
So, now a 19-year old single mother who wants a shotgun for home defense (remember, Uncle Joe Biden told us that’s all we needed for home defense), or the 20-year old wounded veteran who wants to buy a .22 rifle for target shooting or a .308 bolt-action rifle for hunting cannot buy one legally.
This part of the law might be unconstitutional under state and federal law, as it arguably strips certain Floridian adults of a Constitutional right. In fact, the NRA filed a lawsuit against the State of Florida before the ink was dry. Other than the right to vote at age 18, we’ve never really established a definitive legal age for the constitutional protections of our God-given or natural rights. It’ll be interesting to see how this plays out in the courts.
Banning bump-fire stocks
If you’re not aware of what a bump-fire stock is, it’s an accessory that can be temporarily attached to a semi-automatic rifle. It causes the gun’s recoil to reset the trigger without you moving your finger, and as you pull forward on the gun the next bullet fires, and so on. It sort of mimics a full-auto rifle experience for those of us who can’t afford the $20,000+ price tag for a legal machine gun (yes, machine guns are legal). Interestingly, there are some people who can achieve this same full-auto effect without using a bump-fire stock.
A bump-fire stock has never been used in a school shooting. In fact, most people had never even heard of it until one was allegedly used in the Las Vegas shooting.
The bump-fire stock ban may face court challenges. First, the law not only bans the importation, sale, or gift of any bump-fire stock in Florida, it will make thousands (if not millions) of law-abiding Floridians instantly criminals when it becomes effective October 1, 2018. That’s because there’s no grandfathering period – merely possessing a bump-fire stock that was legally purchased years ago will be a third degree felony as of October 1.
If this is taken to court, one argument would likely be that it’s an ex post facto law, which is prohibited to the federal and state governments by the US. Constitution. Basically, the idea is that a law which makes a legal action retroactively illegal is unjust – especially when property or freedom are at risk of forfeiture.
Also, the definition of the types of accessories covered by this ban is broad and vague. Perfect for litigation. Many women and older people have trigger modifications done on their firearms to reduce the amount of force needed to pull the trigger. Will such common modifications somehow fall under this law?
Finally, the Trump administration also caved under political pressure and is trying to use the regulatory process to ban bump-fire stocks at the federal level. That’s a legal minefield in itself since the ATF determined back in 2010 that bump-fire stocks don’t fall under the National Firearms Act, and now the Justice Dept. is now trying to say they do. Many people think this end-run around Congress will ultimately fail, but it could mean years of legal battles over a mere accessory.
But, as with all things related to the law, nothing is cut and dried. There’s not a lot of political support for a fight against the ban because too many people focus on the item being banned instead of the importance of defending important individual rights protected by our Constitution.
3-day waiting period
Florida currently has a 3-day waiting period for handgun purchases through licensed dealers. This law extends that waiting period to rifles and shotgun purchases made through licensed dealers. Exceptions to the waiting period apply to Floridians who 1) have a valid concealed carry license (handguns and long guns), or 2) have a valid hunting safety course certificate or hunting license (long guns only), or 3) are law enforcement officers, corrections officers, or active duty military members (long guns only).
There is no waiting period for private transfers or gifts.
There’s also no indication that Cruz or any other school shooters used a gun for a school shooting immediately after buying it from a licensed dealer.
Maybe the groups that support Second Amendment issues will take this one to court as it essentially leaves people who pass the NICS instant background check defenseless for 3 days. But the Supreme Court has been very reluctant to step into gun rights cases. In fact, in February 2018, when the Court refused to hear the case against CA’s 10-day waiting period, Justice Clarence Thomas called the Court out on its decision, saying it treats the Second Amendment as a “constitutional orphan.”
So, that’s my take on Florida’s newest gun-related law. I see most of it as feel-good legislation that won’t substantively change anything, but will impose unnecessary restrictions on the rights of law-abiding Floridians. Individual rights – so precious to our country’s founders that they were willing to risk life and fortune for them – are being given away, little by little, to an ever-expanding government bureaucracy in the utopian pursuit of perfect safety.
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