Melbourne, FL asked in Civil Rights and Constitutional Law for Florida

Q: Can I sue the Florida Legislature if conseal carry no longer has to register. Does it endanger my civil rights?

I think both laws not registering a gun and not registering conseal carry endangers my domestic tranquility not knowing who is packing. The 2nd ammendment is more important than the preamble. Same can be said for assault rifles. Seems like the use of such guns are for mass shootings in public places. Again, is the 2nd amendment more important than my worry for my life when attending an outdoor festival? My fear of a someone shooting me if he feels I wronged him. We see schools are no longer safe. How can I be assured some crazy with a gun is not going to shoot my daughter at school? Is the 2nd ammendment that important in this day when we do not have native American attacks or the Brits, French, and Spanish as next door neighbors, as when the constitution was written and no standing army. Washington himself talked about the dangers of people not part of a trained militia having guns after Shay's rebellion. That's why "a well regulated milita," is there. WHERE ARE THE REGULATIONS?

2 Lawyer Answers
Terrence H Thorgaard
Terrence H Thorgaard
  • Freeeport, FL
  • Licensed in Florida

A: No. The legislature doesn't have the duty to enact whatever law you want it to. If you feel that strongly about it, your remedy is to encourage the legislature to change the law.

Charles M. Baron agrees with this answer

Charles M.  Baron
Charles M. Baron
  • Consumer Law Lawyer
  • Hollywood, FL
  • Licensed in Florida

A: I agree with your general point of view and believe the Second Amendment should be modified, if not repealed, due to the Supreme Court's 5-4 decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), in which just 5 Justices (in 5-4 decisions) overturned precedents spanning many decades to expand the reach of the Second Amendment, disregarded the logical meaning of the "militia" clause, and, for the first time in U.S. history, applied the 2nd Amendment to curb State and local authority, not just Federal authority, in the realm of firearm regulation. On the latter issue, Justices who decry judicial "activism" became as activist as they could possibly be, expanding the 2nd Amendment beyond the actual text of the Constitution. Since the 2nd amendment likely will not be modified or repealed in our lifetimes, the Supreme Court's recent "interpretations" will likely continue to be the law of the land unless there is a future change in the make-up of the Court that creates conditions conducive to re-litigating such issues (such as the change, on the other side of the spectrum, that induced re-litigation of the abortion issue).

However, the 2nd Amendment is pretty much IRRELEVANT to your question of whether there's something you can legally do if a majority-barbarian legislature (with the approval of a barbarian governor) passes a law easing gun restrictions. The 2nd Amendment can be used to constitutionally challenge a gun regulation, not challenge the repeal of a gun regulation. Legislators might verbally cite the 2nd Amendment as a reason for their asinine stances, but such pronouncements are irrelevant to their power to make dumb laws that create higher risks to the public safety - and the stricter laws they wish to repeal would likely withstand any 2nd Amendment court challenge (and probably already did).

As Mr. Thorgaard indicated in his response, you cannot force the legislature to enact laws that are sane - or prevent them from repealing laws that are sane. If the legislature passes a law that is unconstitutional or arguably unconstitutional, you can file suit to enjoin the enforcement of the law. If there are no grounds for a constitutional challenge, the only avenue of relief would be to change the minds, or the make-up, of the legislature.

If we do one day get enough legislators to ban assault rifles in Fla., and a constitutional challenge gets up to the Supreme Court, the Court, even with its current make-up, would probably uphold the ban (NOT overturn the ban), due to Justice Scalia's language in the Heller case majority opinion leaving an opening to approve such a ban. Since some other States are enacting such bans, I imagine we'll eventually get a Supreme Court decision on that point.

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