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Stupid, but Legal: Nikki Fried Suspends Concealed Carry Permits of Accused Capitol Rioters

The Bill of Rights (Wikimedia Commons )

Nikki Fried, Florida’s agriculture commissioner and the only statewide-elected Democrat in the state, announced this afternoon that she has suspended the concealed-carry permits held by 22 Floridians (Fried’s office has regulatory authority in this area):

My first reaction to this was: Doesn’t Fried mean “allegedly involved”? As far as I can tell, not a single one of those 22 people has been convicted of anything. Irrespective of whether one thinks that the events of January 6th were the worst thing that has happened in America since the Civil War or a complete non-event, we should be able to agree that it is a bad idea to bypass the presumption of innocence as Fried does here. “Insurrectionist” is a pretty serious charge for a public official to throw out at the best of times — especially without reference to a jury.

My second, related, reaction was: Given that the 22 people in question have not yet been convicted of anything, how on earth can Florida’s government be empowered to suspend their concealed carry permits?

Unfortunately, it turns out that it is. Florida’s state constitution explicitly protects the right to keep and bear arms. But it also explicitly permits the state to regulate the bearing part. Here’s the relevant section:

(a) 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.

And, as it turns out, the law in question, 790.06, allows the state to revoke a carry license on the mere presentation of charges (bolding mine):

(3) The Department of Agriculture and Consumer Services shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department of Agriculture and Consumer Services shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years. The department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license under this section, until final disposition of the case. The department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.

What is “a crime that would disqualify such person from having a license under this section”? Here’s the list:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:(a) Convicted of a felony in the courts of this state;
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;
(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;
(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or
(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.

Which means that, providing that the 22 people in question were “arrested or formally charged with a crime” and that their crimes were either “against the United States which is designated as a felony” or “an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year,” Fried is acting within her powers.

Naturally, these provisions are not the only ones in play. Like the Fifth Amendment to the U.S. Constitution, Florida’s state constitution also holds that “No person shall be deprived of life, liberty or property without due process of law.” In order for a successful challenge to be brought on those grounds, however, the plaintiffs would have to establish (a) that a constitutional right is being denied without due process, and (b) that concealed carrying is a constitutional right.

As it stands, that second element would be pretty tough to demonstrate, given that Florida’s constitution carves out an exception for regulation, and that neither the Eleventh Circuit (which covers Florida) nor the Supreme Court have ruled on the question of concealed carry either way (it will soon in New York State Rifle & Pistol Association, Inc. v. Bruen). If the material question here were whether the state can restrict gun ownership per se on the basis of mere criminal charges, a plaintiff challenging Fried’s decision might have a fair shot at overturning the rule. (Notably, in her Kanter v. Barr dissent, Amy Coney Barrett concluded that, historically, only “those who pose a threat of violence to the community” could be disarmed by the government — yes, even if they had been convicted of a crime.) For now, however, carry tends to be treated differently by the courts than is simple possession.

None of this justifies Florida’s statute, which could easily have been written differently, and which should make everybody who cherishes the presumption of innocence feel a little uncomfortable. As a matter of basic political hygiene, it is a bad idea to condition constitutional rights upon the absence of a mere accusation, and the fact that we are dealing here with two things (guns and the alleged Capitol rioters) that the establishment press tends to loathe makes the case against such provisions stronger still.

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