Florida Supreme Court Guts Right to Open Carry

By Dean Weingarten

Dean Weingarten
Dean Weingarten

Arizona – -(Ammoland.com)-
In Norman v. Florida, the central issue was whether the Florida ban on the open carry of firearms violated the Second Amendment of the United States Constitution, or the weaker provision of the Florida State Constitution.

The case seems strong on its face. Open carry is specifically mentioned in the District of Columbia v Heller decision. Heller mentions it in showing that open carry of firearms has long been protected while the concealed carry of weapons has been regulated or banned since about 1830, in many jurisdictions.

The Supreme Court of Florida found the open carry of firearms was *not* protected by the Second Amendment. They then found, unsurprisingly, that the Florida Constitution does not protect the open carrying of arms, because the Florida Constitution specifically allows the state to regulate the carry of arms.

Right to Bear Arms

(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.

It is difficult to argue that an amendment that explicitly grants the state the power to regulate the manner of bearing arms, does not give the state the power to ban the open carry of arms.

The Supreme Court of Florida decision was 4 to 2 against the right to bear arms openly. They did this in two steps. First, they found that open carry outside the home was *not* a core part of the Second Amendment, and was therefore not subject to strict scrutiny.  Second, they claimed to apply intermediate scrutiny, but actually applied an interest-balancing inquiry that is specifically prohibited in the Heller decision.

The Court was bolstered in this decision by several other decisions that have gradually undermined the Heller decision in other appellate courts.  From the decision:

For instance, the Ninth Circuit in Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016), conducted a historical examination of the Second Amendment and, based on this historical analysis, held “that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.

Several other cases in appellate courts that upheld extreme restrictions on carry outside of the home were cited. The unwillingness of the Supreme Court to take those cases has allowed the appellate courts free reign to chip away at Heller.

A strong dissent is included in the decision. The dissent rejects the notion that open carry outside the home is not a core part of the Heller decision. It shows how the majority of the justices ignore precedent and the Heller decision. The dissent argues that the Majority makes an “interest balancing” decision, which is prohibited in Heller, not an “intermediate scrutiny” decision.  From the dissent:

But the majority here, while purporting to apply intermediate scrutiny, evaluates the challenged law in a manner that is not materially different from rational-basis review.

The majority decision may be appealed to the 11 Circuit. It is unclear if an appeal will be attempted.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 11 thoughts on “Florida Supreme Court Guts Right to Open Carry

    1. Geez, I’d.. for guns must be taken before rights hate to compare credentials with you guys. Fortunately I don’t have to. A mere glance at history shows gun control, then confiscation, is always the way of government. All government. For guns must be taken before rights.
      The gun grabbers know exactly what the second amendment says and means. They simply don’t like it, and wish to change it via what Scalia called argle bargle. Bullshit. Obfuscation.
      Want to read a fantasy. Check out Justice breyer’s argument in Heller vs Dc.. I found myself laughing out loud.
      Unfortunately, the bill of rights was written before the art of indeterminate language. That is, it doesn’t matter what something says. It only matters what one can convince a judge it says. And it doesn’t hurt if the judge wants the same thing as the arguer.
      Unfortunately, there will always be people trying to twist the language of the constitution to serve their opinion.

    2. “It is difficult to argue that an amendment that explicitly grants the state the power to regulate the manner of bearing arms, does not give the state the power to ban the open carry of arms.”

      Actually it is very easy to argue “why?” The provision is there for the same reason it was was added to the Kentucky State Constitution, to give the state the authority to prohibit concealed carry. As the Supreme Court pointed out in Heller and McDonald, it is necessary to look at the history and tradition of the law which is why Heller said that concealed carry is NOT a right even though “bear” means to carry openly or concealed.

      This is an appeal from a judgment of a state court of last resort. If it is to be appealed then a cert petition to SCOTUS is its last stop. I hope a cert petition is filed. Justice Scalia and Thomas lashed out at the Court for not granting the cert petition in Jackson v. San Francisco for lack of a circuit split. Well, now we have a SCOTUS Rule 10 split. The Florida Supreme Court just published a decision which creates a split with every Federal appellate circuit and with every state court of last resort, pre and post-Heller.

      If SCOTUS denies the cert petition in Norman, it will not because of a lack of circuit splits.

      1. @Chas N, What you write is just more propaganda to talk people out of their God given Civil Rights. There is no qualifier the “bear” in the Second Amendment. Evern a third grader can read the Second Amendment and have a clear understanding of it. Everything else is just flotsam to fool people. Put those judges names on the list.

        1. Wild Bill – You hit the nail right on the head. Too many people, like you, never got beyond a third grade level. Fortunately, the US Supreme Court has correctly held that concealed carry is not a right and it is the opinion of the justices which counts.

          “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

          “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

          “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

          1. @Chas N, You are pointing to dicta, and there, still, is no qualifier the “bear” in the Second Amendment. I just love it when people insult me by attacking my credibility. Lets compare education and accomplishments. I’ll go first. Basic Combat Training, Ft. LeonardWood. There that should not be too hard to top. Now, Charles, it is your turn.

            1. Wild Bill – You are right, it wasn’t too hard. Anyone with a high school diploma or GED tops your list of education and accomplishments.

            2. @Chas N, Well, of course I have a HS diploma so I’ll add that to the pot. High School grad and Basic Combat training are in the pot. I have not read any of your educational credits or accomplishment, yet. Ante up or shut up, Chas.

            3. Wild Bill – Some of my academic credentials are stated in my lawsuit. Perhaps you might read the pleadings and briefs before bloviating?

              Of course they were not a complete statement. I omitted the fact that I had completed all the law courses required for me to write the bar in the late 1970s, nor did I mention my three degrees and nearly two years of post-graduate studies in computer science and engineering, nor did I mention my prior employment developing software for super computers, computers which Intel uses to develop its microprocessors.

              But none of these are relevant to the pure questions of law before the court. The 9th circuit court of appeals has already held that concealed carry is not a right under the Second Amendment, basing its decision on three US Supreme Court decisions which held that concealed carry is not a right: Baldwin, Heller and McDonald, not to mention nearly two hundred years of American case law which also held that concealed carry is not a right under either the Second Amendment or their state analogs to the Second Amendment.

              Of course if you were to read the cert petition in Peruta v. California, you would discover that the petitioners do not claim that there is a right to carry a weapon concealed under the Second Amendment. The question the petitioners present is whether or not there is a right to carry a handgun concealed when the Open Carry of a handgun is prohibited.

              The respondents correctly point out in their Brief In Opposition that the question presented to the court of appeals by Peruta and the question decided by the court of appeals is whether or not the Peruta plaintiffs were entitled to concealed carry permits as they explicitly chose not to challenge any of California’s Open Carry bans.

              Play stupid games and you win stupid prizes. A fact you no doubt have great personal experience to which you could attest, should you remain sober long enough to do so.

              As Open Carry is a question that the petitioners present for the first time on appeal, the Court will not address that question, it will deny the cert petition. See Justice Thomas’ concurrence to the denial of cert filed today in LISA OLIVIA LEONARD v. TEXAS 580 U. S. ____ (2017) .

              Your belief that your high school diploma and basic training in the military somehow makes your opinion on the Second Amendment controlling whereas the decisions of the US Supreme Court are not speaks volumes about you.

            4. @Chas, Well, you are right none of it is relevant. “I omitted the fact that I had completed all the law courses required for me to write the bar in the late 1970s, nor did I mention my three degrees and nearly two years of post-graduate studies in computer science and engineering, nor did I mention my prior employment developing software for super computers, computers which Intel uses to develop its microprocessors. But none of these are relevant to the pure questions of law before the court.”
              I’ll match your three degrees, and raise you my Juris Doctor, admission to my state Bar and the Federal Bar Assn., Command and General Staff College, my publications regarding Federal Income Tax Law, and a USDOJ/INS Adverse Decision Report that formed the Basis of the USDOJ/INS S. Ct appeal. And you fail to Shepardize. And finally, there is, still, no modifier to the word “bear” in the Second Amendment.

            5. Wild Bill – You forgot to mention that you are an astronaut as well. Such is the nature of the Internet. Trolls like you can hide behind their anonymity and claim to be anything and anyone. I haven’t hid my identity. Why don’t you come out from beneath your rock and reveal who you are?

              It is simple enough to do. Simply copy our exchange here to a page on your legal office website.

              You do have a legal office website do you not? Because anybody can buy a J.D., through the mail and although any moron can pass a bar exam, you haven’t proven anything other than you can be a troll on the internet.

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