The Florida Supreme Court will hear Norman v. State, the case that challenges the constitutionality of Florida’s open carry ban. It may or may not be a coincidence that the court’s decision to hear the case was published a day after a bill to allow open carry passed the Florida House Criminal Justice sub-committee. On the legislative side, the bill passed the committee 8-4. From the sun-sentinel.com . . .

The state representative who filed the bill, Matt Gaetz, R-Fort Walton Beach, called the right to bear arms one “granted not by government but by God.”

The initial brief to the court was filed a week ago on November 25th, 2015. Here is the summation of the arguments from the INITIAL BRIEF – MERITS (PDF):

Florida’s ban on the open carrying of firearms, is unconstitutional under the Second Amendment to the United States Constitution as well as Article I, Sec. 8 of the Florida Constitution, Declaration of Rights. The current ban was passed as an ill-conceived emergency measure, without committee hearings, public comment, or time for deliberations.

The Florida Constitution allows for regulation of the manner of bearing arms. From the Florida Constitution, Article I, Section 8:

(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.

Prior to 1987, Florida allowed for unlicensed open carry, while highly restricting concealed carry. Janet Reno‘s lobbying created the open carry ban – in the same year that the legislature passed a “shall issue” concealed carry law.

The state has not submitted its reply to the initial brief on the merits. The local press has run some coverage of the issues. From tcpalm.com:

As for the Supreme Court case, Friday argued in the brief that the “Open Carry Ban severely restricts the right to bear arms.”

The brief goes on to cite similar state cases from Georgia and Tennessee, where open carry laws were found unconstitutional. It goes on to explain that laws governing concealed weapon permits are also unconstitutional, equating the right to carrying a gun as the same right that protects the publication of pornography.

“Mr. Norman’s arrest and prosecution were unconstitutional from beginning to end,” Friday wrote in the brief. “The gunpoint detention of Mr. Norman, a lawfully armed person, clearly shows that the current interpretation of firearms law is suspect and dangerous.”

While the case to throw-out the open carry ban is quite strong on its merits, we have seen judges who are quite willing to ignore logic and fact in order to reach the conclusions that they favor. It will likely take months for the court to reach a decision.

©2015 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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42 Responses to Florida Supreme Court to Hear Challenge to Open Carry Ban

  1. Grease ’em up, my Florida friends, because you’re about to get back-doored by a Court that cares a lot about tourist dollars and very little about your rights.

  2. But didn’t SCOTUS decide this already? Something about needing to provide for some kind of carry, where if ccl was banned open carry must be permitted? I seem to recall some grumblings about how open carry was actually legal for several days in Chiraq because of this.

    • SCOTUS never said that Open Carry must be permitted if concealed carry is prohibited. SCOTUS said that Open Carry is the right guaranteed by the Constitution and that concealed carry can be prohibited. Not a single case cited in either the Heller or McDonald decisions even suggests that there is a right to concealed carry and there is certainly not a single court decision or historical authority which remotely suggests that states can “prefer” concealed carry over Open Carry until the now vacated 2-1 decision in Peruta v. San Diego.

      Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

      http://CaliforniaRightToCarry.org

      “[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

      “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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.

      • “Concealed carry is of no use to me, I don’t carry a purse.”

        Will you please stop with this illogical nonsense?

        You put this in most of your comments, and it’s just plain stupid.

        Here’s a hint: I stop reading there. If this is the kind of logic your legal commentary uses, why should I waste my time reading something devoid of logic?

        It is extremely difficult to take seriously anything you say, anything at all, when you include this nonsense like it is some profound proclamation we should all be impressed by.

        • JR_in_NC it is no doubt unfortunate for your family and friends (assuming that you have any friends) that you lack the intelligence to understand what the US Supreme Court said about Open Carry being the right guaranteed by the Second Amendment and moreover, that concealed carry is not a right and can therefore be banned.

          By the way, it wasn’t just the five justices in the majority which concluded that concealed carry can be banned, so did all four justices in the minority.

          “But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851

          The only advocates for concealed carry are criminals and cowards and of course those who have a “tendency to secret advantages and unmanly assassinations” like yourself.

          “[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

  3. The one thing I would like to hear the OC crowd explain, intelligently, is how is the manner of carry, is ruthlessly infringing on your right to carry? The way I see it, as an actual Floridian,..that carrying is carrying, even if it is concealed. What is it about you OC types that assert that the society, or state, has no right to determine how a firearm may be carried in that state? Florida is not just a tourist destination, it’s a tourist destination for the world. Maybe, just maybe, we don’t want firearms carried openly. Maybe since Florida is marketed as a “family friendly” state, we don’t want to see your firearms on display for the visiting families trailing a clan of crumb-crunchers? They don’t come here for the Wild, Wild West. They come here for Mickey and Minnie, and our sandy beaches. Not for those who feel a burning need to show-off to everyone that they’re packing heat. Frankly, I find the incessant need of those who wish to OC their gats, troubling. You OCer’s seem to have a burning NEED to show everyone that you’re carrying, because you wanted to be perceived as though you were equal to the police. If concealed carry is too burdensome for you, or you aren’t receiving the required notoriety you think you deserve, then maybe you don’t posses the proper psychological aptitude to be carrying in the first place. You OCer’s sound like you’re a hairs breadth from brandishing. Look at me, look at me….I’m carrying a gun…respect me. I want, I want, I want, and whoever doesn’t like it, well, you can GFY!

    • You seem overly concerned with how Florida is marketed and devoted to fulfilling that marketing. Please explain this. Why should a tourist’s feelings dictate what rights you are allowed to keep? Does this extend to other rights? Should we be forbidden from openly speaking our religious and political views on the grounds that it could offend a tourist? Don’t worry though, we can still have our free speech so long as we conceal it.

    • Out_Fang_Thief,

      You of all people should know that is extraordinarily difficult to conceal during Florida’s hot weather months. Either you look like a slob with a tent size untucked T-shirt, you sweat your fool head off wearing a lightweight sport jacket over your T-shirt (ala Sonny Crockett in Miami Vice), or you carry a tiny (subcompact) pistol in a pocket holster.

      I for one like to tuck in a form fitting shirt and look nice. It looks better, feels better, and provides a barrier between sweaty skin and your handgun. Furthermore, I like to carry a full-size handgun in case I run into Jihadi John and Jane like we just saw in San Bernardino. In that scenario a subcompact handgun was basically useless. And while a full size handgun is inferior to a rifle, it sure beats using a micro .380 or 9mm pistol … or a 5-shot snubbie.

      What if someone claimed that the tourists and people of Florida despised Jews? Would we prohibit them from openly wearing yamikas on their head? Would we force them to wear a baseball cap over their yamika to hide it? Neither should we tell someone that they must hide their handgun when they are conducting themselves honorably and respectfully toward others.

    • Thanks for sharing your opinion, but remember opinions are just that. While I am not a resident of Florida, I both open Carry and conceal carry. It is not about looking at me, most people don’t realize your open carrying anyways. Your more than welcome to keep your micro pistol in your pocket, I’ll carry what I want the way I want. Another point and I may be wrong, but isn’t Florida a state where printing is/was a no-no? If you have open carry then that doesn’t matter. So please take your GFY and swallow it.

    • You sound like a bad person projecting your own insecurities on others.

      Did Florida get raped by carpet baggers ripping up their Constitution after the civil war like Texas did? It reads eerily similar.

    • Well, somebody is very cranky today. Or the commenter is a simply a tr0ll. My money is on the latter, and I only bet on sure things.

    • Tr0ll starts with: “The one thing I would like to hear the OC crowd explain, intelligently, is how is the manner”
      and ends with: “whoever doesn’t like it, well, you can GFY!”

      OC/CC has been discussed dozens of times here. Look it up. Or not, doesn’t matter. You are not interested in an intelligent discussion.
      In tr0ll language you’ll understand: Rights > your feelings every. single. time. You’re not persuadable. Whatever you think of OC doesn’t matter.

    • “They don’t come here for the Wild, Wild West. They come here for Mickey and Minnie, and our sandy beaches.”

      I hate to break the news to you, but US and International tourists frequent the local rental gun ranges and spend quite a bit of money…

    • Out_Fang_Thief – Because concealed carry is cowardly and criminal. More to the point, Open Carry is the right guaranteed by the Constitution and concealed carry is not a right. Concealed carry is used for surprise attacks, what your kind calls a “tactical advantage.” Open Carry gives fair notice to those around you that you are armed so that they may respond accordingly.

      “The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant’s innocent intent does not make a concealed weapon any more visible.” People v. Mitchell, 209 Cal. App. 4th 1364 – Cal: Court of Appeal, 4th Appellate Dist., 1st Div. (2012) at 1371.

      Concealed carry is of no use to me, I don’t carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

      http://CaliforniaRightToCarry.org

      “[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

      “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had 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.

    • How do you propose concealed carrying when wearing swimwear on those sandy beaches?

      Seriously, who gives a toot how someone else chooses to carry his wallet, gun, newspaper or purse? Talk about simple petty meddling in the lives of others. If you want to carry concealed, carry concealed. Done. If you notice someone else carrying open, stop snooping on people like some creepy pervert.

      • Who gives a hoot?
        Apparently, Janet Reno. That name should be brought up as often as possible when debating OC restoration bills.

    • All of the above, plus:

      “What is it about you OC types that assert that the society, or state, has no right to determine how a firearm may be carried in that state?”

      The right to keep and bear arms is a natural, civil and Constitutionally protected right not subject to the democratic process or arguments of social utility.

      If a state determines that concealed carry satisfies the requirements of the Second Amendment, which it doesn’t, see comments on “…shall not be infringed.”, it would have to authorize the absolute unlicensed/unpermitted carry of concealed weapons, otherwise it is unconstitutionally infringing on the right to keep and bear arms. The very concept of means testing and taxing the exercise of a Constitutionally protected right is infringement.

      Short of pure, true, uninfringed Constitutional Carry, open carry is their only option. Texas still got it wrong in that they are only allowing open carry by persons who have jumped through their unconstitutional permitting hoops.

      Oh, and by the way, if I feel like open carrying, which I do sometimes, and that bothers you, screw you. My rights are not subject to your opinions, nor to the opinions of local Chambers of Commerce who are afraid of lost tourist dollars. And as an historical note I used to work security at Orange County airport in California, before TSA. One of the biggest issues we faced, almost daily, was tourists arguing with us about their kids carrying toy guns onto the planes that they had bought at Frontierland in Disneyland. That was a long time ago, maybe Disney doesn’t sell toy guns anymore. That would be too bad.

    • A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arm shall not be infringed.

      Try bearing arms of any size and type necessary to the security of a free state without bearing them openly. I say that it cannot be done. Openly bearing arms is an individual right which also serves as a deterrent to tyrants and other criminals. I want to live in a state of freedom, don’t you?

    • While I would likely continue to carry concealed, I try to look at the issue from an outside point of view.
      Our right is to keep and bear arms.
      Currently, bearing your arms requires that you get a license from the state to exercise that right, at which point it is no longer a right.
      Open Carry with a license is not any better, but it is progress, and can help erode the knee-jerk ‘guns are bad’ narrative that has been force-fed to the public for so long.

      The caveat is that every individual that decides to OC becomes a defacto ambassador for gun rights, they will be asked questions by a curious and often misinformed public as well as become a prime target for those with an agenda.
      I would ask that OC practitioners study up on the law, know their facts, make an effort to be presentable when carrying, and understand that they will be held to a higher standard and their actions scrutinized.

    • As a floridian, i am for striking down the OC ban. Not that I am going to OC, i wouldnt. Atleast intentionally. And that is what is currently wrong in florida and that is what the Gaets bills (father in senate, son in house) are trying to resolve. Innocent floridians were arrested and prosecuted becuase of brief exposure while still in their holsters. This despite a law to allow CCW carriers the flexibility for brief exposures. That law didnt work. So now they are going after it in the legislature. Its a two pronged approach. Whether you like it or not, open carry is coming to florida. There is enough support in the legislature if Norman v State fails to achieve the desired result. It just will take longer.

  4. The Florida state Constitution seems pretty clear: the state has the authority to regulate the manner of bearing, with the caveat that citizens have the implicit Constitutional right to bear them. Ipso facto, the state can’t really be said to be regulating the manner of bearing when they’ve completely banned the ability to bear them openly.

    • Open carry is not completely banned in the state. Still legal to OC while camping, hunting, or fishing. FloridaCarry (the group behind Norman v State). Routinely holds Open Carry Fishing at piers around the state.

  5. LOL. This will end badly. Kangaroo court will come to only one conclusion and it doesn’t include open carry.

  6. Until then, I shall open carry while going to, during, and on the way back from said activities: fishing, camping, hunting or target shooting.

      • I thought he was a new permit holder taking his first CC walk near his house, wearing an A-shirt.
        His attorney claimed his shirt rode up and his pants (without a proper gun belt) sagged down, exposing his sidearm. The prosecution claimed that his clothing wasn’t capable of concealing, therefore he must have lied about the OC being accidental. A jury convicted. I do not know what instructions Judge Cliff Barnes gave the jury.

        • I must of been thinking about the event where the man was Open Carrying while fishing in Florida and the cop tried to sneak up and steal his gun from him.

  7. I carry a RIA 3.5 inch 45acp every day. All one needs is a good gun belt and a well made IWB holster.
    My daily wear consists of jeans and a t-shirt. Tucked in while commuting on my bike or trike.
    When at work I just untuck my plain old cotton t-shirt and Im good to go for 20 out of 24 hours a day 365 days a year.
    Open carry wont make a bit of difference to most concealed carriers.
    I just wont have to tuck in my t-shirt while on the bike.

    As far as tourism………Who knows who cares?? Dade County is a 3rd world country as is. Miami has a few miles of hotels and beaches.
    Whos going to open carry a gun in a speedo on a sandy beach??Mickey Mouse city or Orlando. Cant see it there much myself.
    Meanwhile 1.3 million concealed permits already in the state. Open carry wont even be noticed.

  8. There’s also the matter of the fact that a Florida Concealed Firearm license costs $119.00 plus the cost of an approved training course, which seem to get more expensive every year despite the fact that the NRA Basic Basic Pistol course is all you need to satisfy state law. If Florida wants to mandate concealed constitutional carry, there might be some merit to keeping the ban on open carry, but not much.

    Carrying a concealed firearm in Florida w/o a license is third degree felony, and there lies the rub. Having to pay for the right to bear arms means it’s no longer a right. I also don’t like the fact that I can’t carry more than an S&W J-Frame without layering up, and looking like a slob.

    Fvck the troll and his crumb catchers. I don’t give a shit what the tourists think. It’s my HOME, not their playground.

  9. And the campus carry bill remains to be scheduled for the Senate Judiciary Committee after passing all previous stages with flying colors. Again. Still.

    https://www.flsenate.gov/Session/Bill/2016/0068/ByVersion

    That’s good content for an article.

    This is the second year a single senator (Diaz De la Portilla) has refused to schedule it and let it die at his feet. We need to bring awareness to this.

  10. The County Court judge also did not fully consider the Second Amendment or the Right to Bear Arms under the Florida Constitution; denying those motions to dismiss the case because the question of the right to bear arms “is for someone above the level of this court.”ut

    Why do they make you swear an oath to uphold the federal and state constitutions if constitutional questions are above your pay grade?

    The County Court did however certify the constitutional questions directly to the 4th District Court of Appeals as questions of great public importance.

    At least the judge took steps to have somebody look at the constitutional questions.
    I’m a little unclear as to how Norman could be convicted in the county court before those questions were answered, however.

  11. Good Luck

    Unlicensed Open Carry would a lot better as “only” licensed open carry if the bill passed ( i hope all 3, so campus and the deadly force reform bill too in package)

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