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.

  • 7 thoughts on “Florida Open Carry Case Appealed to U.S. Supreme Court

    1. 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.

    2. 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”.

    3. 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 prohibition does not increase student or teacher safety and in fact helps create body count.
      I wonder if the SCOTUS will follow the HELLER requirement of strict scrutiny if they reviewed LOPEZ or grant cert og teh Florida case?

    4. 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, the license is known as a “High Risk Work License” classification (meaning it endangers its operator and colleagues when used).A forklift license can be “cancelled” outside of work hours for non work related misbehaviour by the relevant forklift licensing authorities.As too , can be a Private Pilot License,and NOT by a court, that is to say , “torn up and destroyed there and then in the public street” by departmental authorities.Once before, i mentioned an action of jailing people called “Governors pleasure”. It is not a statutory criminal charge, carries no sentence, and does not require to be a criminal offence to lock the person away.They are only let go upon the jail governors decision when he wants , days maybe years or decades!
      So it has nothing to do with having court hearing and summons (Although that would be the impression from the “guideline document” for a foreigner such as an American). While such matters may meet a “court of arbitration”, the ruling is (as you would expect) arbitrary.
      https://www.legislation.gov.au/Details/F2011L01341

      This is because the definitive line of criminal offence in guilt or innocence is actually both, kept indecisive by legislative definition guideline in a “two faced system” as explained above, and no actual true power to call authority of any form to account its actions/en-action is allowable and neither given ability to reach “effect by the people” (would be silenced long before dissent were visible surrounding the issue) meaning effectively while stated in the Commonwealth statutory obligations of the governments and authorities of the peoples well-being, the processes to use are a guideline only AND NOT actual rights!

      You can only understand the “Commonwealth bill of rights” to be a piece of paper for waving at the (UN) United Nations for the Commonwealth to self say they conform to the Human Rights standards laid out by the UN !
      Too again, this bill of rights was the obligation of Idi Amin , the prime minister of South Africa , John Howard of which if we take a look at Australia, its’ system is not massacring machete armed groups as SA , or , electrocuting people in a puddle as Uganda, but slipping people through the cracks from the authorities misunderstanding and choosing some course of action that is not effective.
      Australia has only around 6 million total whites most of whom are “nobody(the same rank as an immigrant while total British heritage)”, and around 50 percent are immigrants and their progeny at present in the total 24 million.

      Of governments and the example they purport of their nation, here’s a story of Australia (a country only second to Siberia for distances to travel and the most harsh environment on the planet second to none).
      In the early 1970’s in Brisbane Queensland, a young man took a .22LR semi-automatic rimfire small calibre rifle and rampaged shooting dead a number of people and taking hostages,
      Australia as it ever did had at least 70 percent of its homicide methods all through history (and to this day) as hands-fists-feet, knife or some other blunt instrument weapon!
      We can safely say though the murder rate was never as much as double figures e.g. 10 or more p/100,000
      BUT there is a real reason for that !! two points
      1. Most of Australia’s population is immigrant e.g. 200,000 permanent migrants a year for the past 30 years!
      These people are heavily assisted and watched and account millions incapable of proper crime activity as they would be well aware before being granted status and moving here!
      2. As per se the population of Australia is quite small somewhere near 25, million at present and a vast expanse of distributed colonisations of the territories.
      This affords them a more social nature at points anthropologically although the condition is not a certain point to crime not becoming motivated by isolation.
      HOWEVER, here is a story of numbers below 10 per/100,000 for homicide,
      BUT the population of Australia was only 5 million in 1970.
      The story of cars and road accidents in Australia does not stack up as a balance of caring about human life by the governments that were in power or followed.
      In 1970 a news article was published telling that it was safer to be a soldier in Vietnam than it was to be driving a car in Australia.
      The yearly road toll on Australian roads was 128 per/100,000 or over 6000 people killed (fatality) on Australian roads each year (now only 4.1 four point one p/100,000).
      Two main highways between Sydney to Melbourne (Hume Highway), the other to Brisbane (Pacific Highway) in 1970 were in immense disrepair and would remain so until the mid 1980’s and early 1990’s (and later for the Pacific Highway).
      These highways were near 700-800 mile stretches of which most of was only two opposing lanes (like an ordinary small road)
      The highways did not bypass towns or small communities, in fact, “they ran straight through the middle as their main streets” !!!
      By around 1980 the construction of bypasses of the towns for the new road surface and multi-lane highways had either occurred or was occurring and the rate of fatality on the roads was falling to around 54 per/100,000 by around 1985-90.
      But it gets madder , Before they built these bypasses there were a massive number of people being killed in highway main streets anyhow as it reflects in around 1985 the statistics of homicide at present over there in US Chicago.
      So, from this, you can understand that crime in Chicago may have been kinder than Australian roads to 1985-90.
      Every day you would hear the ambulances in the towns the highways passed through as much the screaming and screech of brakes that brought it. People on those routes were more like stray cats than humans.
      In all that time and with 12,000 a year at present hospitalised because of road accidents and fatigue and speeding, no government ever helped Private pilots license or light aircraft !!!

      Just remember, until recently for over a decade, the land of at least “never used guns much” had the olympic gold or cup for massacre with a firearm (Port Arthur) and as the point states it now probably holds the gold for massacre without firearm, at least the female medalist (Cairns QLD)!!!

      1. 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!!!!

        1. 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 cite that no different complexity to the difference between democracy and elite-ist fascism (monarchy is simply the hereditary version) as shown by Britain and its commonwealths.
          Democracy CAN change legal policy by voted power , however, that is not possible in Britain and its Commonwealths because the “essence” of being a government minister is having a degree in economics or in company “law” , other degrees make them extremely unlikely to ever be either a minister or prime minister, but it is in effect the Governor General has the power to dissolve or sack the people elect government or refuse or cancel any bills with or without advice from the ruling monarch, so any legal(AKA) power a statutory authority or government has is worthless and so too any “so called” power people have by voting !
          In fact , truthfully it is no more than a Soviet Citizens power and value and quite likely probably less !

        2. 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!

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