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Florida Supreme Court Guts Right to Open Carry

Posted 03/06/2017 5:56 am by

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.


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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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