Can Florida Felons Possess Antique Firearms?

  • Apr 21 2020

As an Olympic team skeet shooter, Attorney Valiente is passionate about guns and is a strong advocate for the rights of gun owners. As a criminal defense attorney, it is often his job to counsel his clients on gun crimes, and gun ownership issues. 

One question he gets asked a lot is about the lawful possession of firearms after a felony conviction. Florida has a gun-loving populace with a rich history of hunting and sport shooting, so this is a concern for many convicted felons, people accused of felonies, and their family members.  

A Gray Area

In general, felons are prohibited from possessing guns. 

Section 790.23(1)(a) of the Florida Statutes provides:

(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;

Even after a felon has been released from prison, he or she cannot legally possess a gun unless they have had that right specifically restored. 

However, there is a bit of gray area in this law. The statutes don’t prohibit gun ownership, they prohibit firearm ownership, and firearm is a specific term. 

Section 790.001(6) of the Florida Statutes defines “firearm” as follows: 

(6) “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

This makes it seem like it would be acceptable for a felon to possess an antique firearm so long as they are not using it to commit a crime. 

Section 790.001(1) of the Florida Statutes defines “antique firearm” as follows: 

(1) “Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

This seems relatively straightforward, but there has been a fair amount of litigation over the possession of antique firearms by felons, and the law has become murky. Pre-1918 guns seem to be generally acceptable. Replicas of pre-1918 guns are a bit riskier to own because there is disagreement over the definition of the word “replica.” 

In the most recent case on this issue that went up to the Florida Supreme Court, the majority ruled that it was okay to attach a modern scope to a muzzleloader, but a couple of justices disagreed. 

A Risk No Matter What

It is always possible that the court will change its mind the next time a felon in possession case comes up, and change the law. Or, our state legislature could pass a new law changing one of these definitions tomorrow. Because of this, and because law enforcement officials are more likely to arrest first and ask questions later, felons should always be cautious when they are anywhere near a gun. 

A Law Firm You Can Trust 

At a time when society as a whole is growing more skeptical of 2nd Amendment rights, it is important to have an attorney that respects the Constitution and the Bill of Rights on your side. If you are facing a weapons offense, the experienced attorneys at Valiente Law may be able to help. Please contact us today to schedule an initial consultation.  

Posted in: Criminal