Publicola

This is more or less a response to a debate about Florida's Concealed Weapon Law, Florida's Constitution, Rights, & accountability. It's a slow news day so I thought I'd include it here.


As to the Florida constitution, you refer to the 1998 constitution revised in 1998. Let's walk a little down memory lane shall we?


Florida Constitution of 1838

Article 1

Section 1. That all freemen, when they form a social compact, are equal; and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property and reputation; and of pursuing their own happiness.

Section 21. That the free white men of this State shall have the right to keep and to bear arms, for their common defense.

Section 27. That to guard against transgressions upon the rights of the people, we declare that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or to the following provisions, shall be void.



Florida Constitution of 1861

Article 1

Section 1. That all freemen, when they form a social compact, are equal, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property and reputation; and of pursuing their own happiness.

Section 21. That the free white men of this state shall have the right to keep and to bear arms for their common defense.

Section 27. That to guard against transgressions upon the rights of the people, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate; and that all laws contrary thereto, or to the following provisions, shall be void.



Florida Constitution of 1865

Article 1

Section 1. That all freemen when they form a government, have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.


Section 26. That, to guard against transgressions upon the rights of the people, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or to the following provisions, shall be void.

Notice anything different? An omission perhaps? Here’s the explanation:

Article 16

Section 1. Whereas, slavery has been destroyed in this State by the Government of the United States; therefore, neither slavery nor involuntary servitude shall in future exist in this State, except as a punishment for crimes, whereof the party shall have been convicted by the courts of the State, and all the inhabitants of the State, without distinction of color, are free, and shall enjoy the rights of person and property without distinction of color.

Florida Constitution of 1868

Article 1

Section 1. All men are by nature free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.

Section 22. The people shall have the right to bear arms in defense of themselves and of the lawful authority of the State.


Section 24. This enunciation of rights shall not be construed to impair or deny others retained by the people.

Its back, but section 27 of the previous constitutions had been omitted in favor of section 24 above.



Florida Constitution of 1885

Declaration of Rights

Section 1. All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and obtaining safety.

Section 20. The right of the people to bear arms in defense of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.

Section 24. This enunciation of rights shall not be construed to impair or deny others retained by the people.

Article 16

Section 24. All marriages between a white person and a negro, or between a white person and a person of negro descent to the fourth generation, inclusive, are hereby forever prohibited.



Amendment to the Florida Constitution 1962

PREAMBLE



We, the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order to secure its benefits, form a more perfect government, insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all, do ordain and establish this constitution.




Florida Constitution of 1968


Declaration of Rights

Section 1. Political Power. All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.

Section 2. Basic Rights. All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, po ssess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race or religi on.

Section 8. Right to Bear Arms. The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

Section 12

Section 10. Preservation of Existing Government. All provisions of Articles I through IV, VII and IX through XX of the Constitution of 1885, as amended, not embraced herein which are not inconsistent with this revision shall become statutes subject to modification or repeal as are other statutes.



Amendment to the Florida Constitution 1998


DECLARATION OF RIGHTS


Section 2. Basic rights.

All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability handicap.


Here’s the link to the Florida Constitution Revision Commission where I found the above specific links.


Now the first 2 constitutions stated that the free white men of Florida have the right to bear arms. 2 things stick out: the most glaring is the idea that this right would only apply to free white males, thereby excluding free white females, non-free white males, & all black people, Indians, etc…
The other thing is the omission of any language qualifying the carrying of arms as something subject to legislation.
Further the preamble & section 27 states that rights are necessary for individuals as well as society & there are some things that are not to be subjected to the whims of the legislature. In other words, they are out of government’s control.

In 1865 the omission of the arms clause can be explained by a desire to keep weapons out of the hands of newly freed slaves. But the sections declaring that some rights were off limit from the legislature were kept intact.

Now in 1868 we have a return to the clause about arms, minus the free white male clause. & the preamble is similar, stating that inherent rights are retained by the individuals. But the clause stating that certain things were off limits to the government was replaced by a clause that simply said rights not enumerated are just as valid as the enumerated ones.
That brings us to 1885, where the language about the manner in which arms are carried may be regulated appears.The1885 constitution also contains a constitutional prohibition on interracial marriage.
They amended the preamble in 1962. It differs a bit from the previous one, but the main reason for inclusion is to show that the 1885 constitution was still in place, as well as show what the purpose of a constitution is.

The 1968 version restates some things we have seen in earlier versions such as: that because a right is not listed specifically does not mean it does not exist; life liberty & property, among others & the defense of those are inherent & inalienable. It also states that certain provisions of the previous constitution would revert to a status of law & be continued or repealed at the legislature’s whim. This would include the prohibition upon interracial marriage, which at that point should have been a state law rather than a constitutional provision.
I could not find any amendments repealing the prohibition on interracial marriage prior to 1968 so I assume it was still in the constitution & in 68 reverted to being a law. I’m sure it was repealed at some point between 1968 & now, but I’m too lazy to search through pages of statute law looking for the exact date. Then again, there’s the possibility that it has been overlooked & is still valid law in Florida.
It also includes the language concerning the manner of carry to be up to the state.

& in 98 again it reaffirms that certain rights are inalienable, such as enjoyment & defense of life, liberty & property.


Why do I point all this out you may ask? To show you that a constitution can be just as flawed as a law, & that some laws as well as some parts of the constitution should not be obeyed or enforced even if they were established legally.
At a point in Florida’s history, the right of self defense & the tools necessary for it were viewed as available to white men only. But during that period they had no qualms about how those arms were carried. It was only when black people achieved freedom & were subject to the same rights as white men that they added a qualifier. The language itself states that it’s an infringement to regulate the method of carry, but one they’ll allow.

“The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”


“…shall not be infringed, except…”

It says that it will infringe upon a right but in a limited way. It doesn’t say that legislating how arms may be carried is not an infringement, but rather an infringement they will allow.

Up until very recently the Florida constitution viewed interracial marriage as a criminal offense. Now most of us realize that denying marriage to people on the basis of skin color is not a very defensible practice, yet until at least he 1960’s it was unconstitutional to marry outside your race. Despite the other parts of the constitution that mentions inalienable rights & the equality of all under the law, this prohibition was upheld.

The point of all this is that rights are inherent. They don’t happen upon us by the grace of a government or a constitution. They just are. Constitutions as well as laws as supposed to acknowledge & protect those rights. But as you see sometimes they are in direct opposition to them.

My claim that requiring a permit to carry a concealed weapon is unconstitutional is partially correct, & partially incorrect. If you go strictly by the language concerning arms, then constitutionally Florida may prohibit carrying concealed or carrying openly. But if you look at the constitution as a whole, & at the basic reasons for having a constitution then they cannot infringe upon your right to carry a weapon for defense in any way.

Further if you look at the probable reasoning behind the Florida constitutions allowing an infringement of your right to carry, then that should make it even more suspect. I don’t think it a coincidence that when white males were the only ones allowed to own & carry arms there were no restrictions permissible by the state, but when black people had the same claim to rights the white men did, first they omitted bearing arms as a right altogether then they put a qualifier on it.

Now in 1865 do you think that bearing arms was less of a right because it wasn’t mentioned in the constitution of Florida? Do you think prior to 1865 it was an infringement for the government to deny arms to black people? Then do you not think that it’s possible for the practice of legislating how arms can be carried to be a violation of your rights?

The constitution of any state or nation is not the final word on rights. Neither is any court or any group of people. All a government or court can do is protect rights or harm them. They cannot make them go away, nor legislate them into nonexistence. Rights will exist as long as there are people who recognize them, exercise them, & fight for them. Inclusion or exclusion from a government document, even a constitution does not alter rights, only their treatment.
So I submit to you that carrying a weapon concealed is a right, just as carrying a weapon openly is a right, just as owning a weapon in your own home is a right. Anyone who diminishes that right, or attempts to deny it to the individuals who possess it, is guilty of perhaps the gravest sin man can commit against man. From the drafters of a constitution to the legislators to the governor to the justices to the attorneys to the cop on the beat, any who violate another’s rights have no defense that should excuse them.
It is said that ignorance of the law is no excuse. Can ignorance of persons’ rights be any different? Are rights to be held up to a lesser standard than the law whose purpose it is to protect rights?

These are some of the reasons why I am against concealed carry permits. They are also some of the reasons that I do not approve of those who support & enforce them. If I am in error feel free to correct me.