Arthur Herbert, Assistant Director
BATFE – Enforcement Programs and Services
99 New York Avenue, N.E.
Washington, D.C. 20226
Re: Open letter to all federal firearm licensees
Dear Mr. Herbert:
As an attorney specializing in the area of firearm laws and regulations, and a writer in the field, I have recently had a number of inquiries concerning the above “open letter”, and its correctness under Florida law. It is my opinion that the “open letter” is incorrect, and should be withdrawn or corrected on the ATF website on the following basis:
Fla. Const. Art VIII, section 5(b), allows a county to pass an ordinance requiring a criminal history records check and waiting period between 3-5 days on any “sale” of any firearm within such county – only where “any part of the transaction is conducted on property to which the public has the right of access.” (emphasis added). The history of the provision indicates it was primarily intended to apply to gun shows conducted on public property.
Of course, the public has a “right of access” only to public property. Sales of firearms conducted wholly on private property do not grant the public a “right of access” – as such would ordinarily contemplate a trespass unless there was an (actual or implied) invitation or license to enter. Thus, while a retail store is normally “open to the public”, there is no public “right” of access. Only a limited invitation to enter as a licensee or invitee – and in conformity to whatever regulations the retailer might require.
While there is no Florida appellate case concerning this issue at this time – it is also my opinion that enforcement of such an ordinance against a retailer would be a violation of Florida’s preemption law, and subject the county to liability for damages, costs, and attorney fees. Of course, the ideal method to determine the issue would be a declaratory action before the Florida courts – but until and unless that happens – the “Open Letter” of November 28, 2011, should be withdrawn – or at the very least – it should be noted that the issue is unresolved as to whether it applies to sales wholly conducted on private property.
Jon H. Gutmacher