Florida Open Carry Case Appealed to U.S. Supreme Court

By Dean Weingarten

 

Dean Weingarten
Dean Weingarten

Arizona -(Ammoland.com)- The Dale Norman open carry case in Florida has been appealed to the U.S. Supreme Court. Most cases that are appealed to the Supreme Court are refused.

 The case started back in 2012, when Dale Lee Norman walked down the street with his pistol showing.  He had recently obtained his concealed carry permit, and did not realize that his firearm was completely exposed.

 

He was convicted of the open carry of a firearm.  His case was appealed to the 4th Circuit court of appeals. The state Advocate General fought very hard to keep the case from being appealed. The case made it all the way to the Florida Supreme Court which ruled against Norman, 4-2, in a mixed decision.

From news4jax.com:

The petition to the U.S. Supreme Court came slightly more than four months after the Florida Supreme Court, in a 4-2 decision, upheld the longstanding law. Monday’s 35-page petition contends the law violates the Second Amendment and conflicts with U.S. Supreme Court rulings about gun rights.

“The issue is whether a prohibition on peaceably and openly carrying a lawfully-owned handgun infringes on `the right of the people to . . . bear arms’ protected by the Second Amendment to the United States Constitution,” said the petition, posted on the website of the group Florida Carry, which has helped represent Dale Norman, the man arrested in St. Lucie County.

The case was decided on the controversial basis of “intermediate scrutiny”.

The lowest form of scrutiny of law by federal courts is “rational scrutiny” virtually all laws are held to be Constitutional under that basis. The only requirement under “rational scrutiny” is that the legislature could have believed the law had some rational purpose.

In U.S. v. Heller, the Supreme Court held that mere “rational basis” could not be used as the level of scrutiny in basic Second Amendment cases. Some appeals courts have bypassed that prohibition by calling their level of scrutiny “intermediate scrutiny”.

In practice, “intermediate scrutiny” is “rational scrutiny” with a different label.  Those courts have used “intermediate scrutiny” to deny Second Amendment rights to defendants. That is what the Supreme Court of Florida appears to have done.

From the petition for ceritorari:

Florida law provides for licenses to carry handguns concealed, but prohibits carrying firearms openly. Petitioner, who had such license, was convicted of openly carrying a firearm on a public street. The majority of the Florida Supreme Court upheld the ban under intermediate scrutiny based on conjecture by counsel about why the legislature may have banned open carry. 

The issue is whether a prohibition on peaceably and openly carrying a lawfully-owned handgun infringes on “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution. That issue also involves the extent to which a restriction on a constitutional right may be upheld, under a proper standard of review, on the basis of a post hoc argument of counsel with no foundation in the legislative or factual record.

Very few cases that petition for ceritorari are accepted by the Supreme Court. This case joins the ranks of several others that deal with the Second Amendment right to carry arms outside of the home. At some point, the Supreme Court will need to deal with the issue.

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

Link to 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.

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Barry Hirsh

I don’t think SCOTUS will take this one, Dean. If it did, I suspect it would hold the FL statute constitutional, because a means to carry in public is available through the concealed carry process. You know and I know and everybody knows that the permit issue is a sticky wicket – strictly speaking, one cannot be forced to ask government’s permission to exercise a constitutional right (“The enumeration of constitutional rights necessarily takes certain policy choices off the table.” – D.C. v. Heller), but in the continuum of SCOTUS jurisprudence, I don’t think we’re there yet.

Mike0369

I’d like to know the circumstances of the arrest.
It seems to me there was obviously a problem with the attitude of cops who arrested him. The cop(s) were looking another arrest, particularly a gun related arrest. When it became apparent this was a law abiding citizen with a permit who simply made a mistake, and/or didn’t understand the law, that didn’t matter. This is a perfect example of the modern difference between LEO and “Peace Officer”.

Jim Macklin

A few decades ago the Federak Gun Free School Zone law was declared to be unconstitutional in the Lopez case [if I recall correctly]. The reason the Court stated was that Congress did not state why it was a federal issue since schools have always been locally controlled. Congress added a few paragraphs of claims about the fear of guns making kids not study and other drivel and passed basically the same law. Obviously that was a rational level of scrutiny years before Heller required strict scrutiny. Today with almost any degree of scrutiny it can be shown that the… Read more »

nicephotog

INTERESTING , LAW IS ALIKE THAT! About why Australia is a fascist country not a democracy (and any of its associate countries)… Download these two PDF links first, then i will explain. https://www.casa.gov.au/file/139186/download?token=XtXcIPy9 https://www.bobtait.com.au/files/pdf/supplements/Part61-AirLaw.pdf In these documents you will notice the expression “fit and proper person” , in the main definition handbook pdf, you will see it explain that while it gives a definition , it also states there “is no actual definition”.This “definition” is for the Private Pilot License (PPL) Commonwealth of Australia.However, if you did not know, with a “forklift” (PIT) Powered Industrial Truck as used in warehouses,… Read more »

Tionico

HEY, you just did a cut and paste of this exact same text in the aritcle about moving to conservative states. How’s about simply addressing the subjet matter of each post instead of flooding with irrelevant issues? Create new and specific content for each response? I saw this same post a few days back, too…… stop being so lazy!!!!

nicephotog

In some form, the discussion here is about power, right , authority and legislation, “Try reading it all” to understand Australia and Britains commonwealths are no example and are totally mis-defined somewhat dishonestly and represented dishonestly to ever be claimed to be a democracy or a safe example from their experiences and that someone continually banters “Australia” as an example of AKA “democracy” in USA gun law issues as though there were any relevance to liberty freedom and fairness! AND here is a cut and paste of the other comment answer too! Difference between “democracy and Republican” is interesting, I… Read more »

nicephotog

AND quote from this article:
…”In practice, “intermediate scrutiny” is “rational scrutiny” with a different label. Those courts have used “intermediate scrutiny” to deny Second Amendment rights to defendants. That is what the Supreme Court of Florida appears to have done.”…

And in my other first main post on this page” Example of Two faced operation of law” !!!
https://www.casa.gov.au/file/139186/download?token=XtXcIPy9

They appear to have extremely similar operation!