Legal Q&A with Jon Gutmacher, Author of Florida Firearms: Law, Use and Ownership

LEGAL Q&A

(If you are looking for the ANALYSIS OF PROTECTION OF PERSONS AND PROPERTY BILL, it was moved; click here.)

Question: I've been reading your book, but I am confused on the "Preemption Law" issue where Hillsborough County has enforced a waiting period of (3) three days to purchase a rifle at my local Wal-Mart.

Answer: Article 8, section 5(b) of the Florida Constitution reads: "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."

This totally senseless section was adopted to close the non-existent "gun show loophole". Try to remember this next time someone asks you to sign a petition to amend the Florida Constitution -- which needs amendment like a hole in the head.

Anyway, the amendment was meant to apply only to a sale that was made in whole or partially on public property (convention center, etc.). It does not apply where the public does not have a right of access, i.e., any private premises, such as a gun store. Technically, a civil rights action for injunctive relief could be filed to declare any county ordinance unconstitutional that was in conflict. Of course, that would likely mean funding such a legal challenge, or getting arrested and challenging it within the criminal prosecution. Hope that answers your question.

This column is not rendered as legal advice. If you have a specific factual situation that affects you, an attorney skilled in this area should be consulted. Return to Legal Q&A list

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