In the matter of Dale Lee Norman v. State of Florida, a divided Florida Supreme Court affirmed the Sunshine State’s general ban on the open carry of firearms, even by persons holding a Florida Concealed Weapons License.

In an opinion drafted by Justice Barbara Pariente, the Florida court conducted a rather lengthy historical analysis of the right to keep and bear arms in America. It correctly pointed out that the U.S. Supreme Court left a number of issues open after D.C. v. Heller and McDonald v. Chicago, for which Federal Appellate Courts have effectively (and not to the Second Amendment’s benefit) been filling in in the gaps. The plurality opinion followed their lead, holding as follows.[1]

(1) The Florida law was not an outright ban on possession of firearms, therefore it wasn’t unconstitutional on its face like the D.C. law in Heller. Because of this, the Court decided to apply intermediate scrutiny (as opposed to the high ‘strict scrutiny‘ standard often applied to first amendment issues, or the low ‘rational basis‘ test that the majority in Heller ruled should not be applied to the Second Amendment,) to decide if the open carry ban was unconstitutional.

(2) Florida’s shall-issue licensing regime gives everyone who completes the objective requirements (background check + training) the legal ability to carry a firearm in public.

(3) Intermediate scrutiny requires the state to show that the challenged law must further an important government interest by means that are substantially related to that interest.

(4) Firearms are dangerous and can be used to further crimes; the state’s interest in public safety and reducing violence are important interests under intermediate scrutiny.

(5) Florida’s ban on Open Carry is substantially related to that interest. Florida continues to respect the right to keep and bear arms — since anyone who isn’t a prohibited person can obtain a license–it’s simply channelling it into concealed carry. The Florida Court quoted favorably the brief filed by the State of Florida:

An armed attacker engaged in the commission of a crime…might be more likely to target an open carrier than a concealed carrier for the simple reason that a visibly armed citizen poses a more obvious danger to the attacker than a citizen with a hidden firearm.

Further, the Court said, “deranged persons and criminals would be less likely to gain control of firearms in public because concealed firearms — as opposed to openly carried firearms — could not be viewed by ordinary sight.”

Therefore, the plurality held, the Florida ban on Open Carry does not violate the Second Amendment.

There are two points of criticism that I have to offer for the decision.

Justice Charles Canady

The first was explained quite well by Florida Supreme Court Justice Charles Canady in his dissenting opinion. The plurality’s opinion on why the ban is ‘substantially related to the state’s interests’ is based on unfounded speculation. As Justice Canady points out, the real rationale for the open carry ban was never safety, but simply the campaign of fear that the opponents to Florida’s “shall issue” law were running when the law was passed back in the 1980s. He said:

Such speculative claims of harm to the public health and safety are not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights…. The suggestion that someone committing a crime ‘might be more likely to target an open carrier than a concealed carrier’ is subject to the rejoinder that a criminal confronted with the presence of an open carrier may be more likely to leave the scene rather than face the uncertain outcome of exchanging gunfire with an armed citizen…. Likewise, speculating about the disarming of individuals who are openly carrying firearms by ‘deranged persons and criminals,’ is a grasping-at-straws justification….

[I]t is highly unlikely that these feeble proffered justifications had anything to do with the adoption of the statute banning open carrying…. The ban on open carrying is best understood as the Legislature’s response to the public concerns swirling around adoption of the…law…. [They] decided that the sacrifice of open carrying was…[an] appropriate response to the public opposition generated by the passage of the concealed-carry law….

This truth should be acknowledged: opposition to open carrying stems not from concrete public safety concerns but from the fact that many people are (sensibly or not) made uncomfortable by the visible presence of a deadly weapon.

Justice Canady also correctly notes that while Heller admonishes that laws that implicate the Second Amendment should not be subjected to a balancing test to determine constitutionality, the Circuit Courts and now the Florida Supreme Court have done exactly that. They’re applying a balancing test appropriate for rational basis review, using that to get their preferred policy position past a constitutional test, and labelling it ‘intermediate scrutiny’ as as smokescreen.

Justice Canady goes on to note that the few cases relating to Second Amendment analogues ratified into the Bills of Rights of various states in the 18th and 19th century appeared to validate the idea that the Second Amendment protected a right to openly carry arms, citing in particular Nunn v. State of Ga. and State of La. v. Chandler.

There’s another point that I feel compelled to mention.

Because of Justice Scalia’s historical analysis of the right to keep and bear arms in the Heller decision, subsequent courts have made a point of revisiting that history (in great detail in some cases) when they issue a decision. It is commonplace for judges of all stripes to comment on various restrictions that existed at the state level in the 18th and 19th century even after ratification of the Second Amendment, and adoption of Bills of Rights with Second Amendment analogues in state constitutions.

The Norman case is no exception, and for its explication of the history of the Second Amendment, the Florida Court relies heavily on an article from Saul Cornell, a history teacher at Fordham whose academic pursuits include fighting against the right to keep and bear arms.

What none of these courts appear to understand is that the recitation of post-ratification legal history from state legislatures and courts in the 18th and 19th centuries does not really inform our understanding of the Second Amendment.

The Bill of Rights are pretty absolute commands. In fact, they’re far more absolute than the Courts ever give them credit for being. I expect that this was known and understood at the time by the people who drafted them, and the people who voted to ratify them.

This isn’t because the founding fathers were a bunch of paleo-libertarians who spent their time on philosophical arguments that would’ve been at home with Ayn Rand or Milton Friedman. One only needs to look at the laws being passed at the state level to understand that they were comfortable with restrictions on personal liberty that we’d find offensive today.

The reality is that that Bill of Rights uses some pretty absolute language because it was only intended to apply to the federal government.

Sure, the Several States passed all manner of laws concerning carriage of firearms back in the day. They also passed law respecting the establishment of a religion. Connecticut had an established church until 1818; Massachusetts until 1833. New Hampshire required state legislators to be Protestants until 1877.

“But First Amendment!” you cry? “Horse-hockey,” I reply! The Bill of Rights did not even apply to the states until the Fourteenth Amendment was ratified in 1868, and even then, the courts did not start actually start applying them to the states until (in fits and starts) 1897. And the Second didn’t get its place in the sun until 2011. So, yeah, lots of laws were enacted until that point. So what?

Now, Justice Scalia did do quite a bit of historical analysis in Heller, but most was to determine what the words of the Second Amendment meant at the time of ratification. The fact that some states had enacted restrictions on firearm possession or carriage is an interesting detail from the annals of the American Republic, but is no more relevant to present Second Amendment cases than the fact that parts of New England had laws to ensure conformity to their religious ideologies as late as 1877 informs our analysis of the First Amendment today.

The purpose of the constitution, after all, was to ensure that the power of the federal government remained limited. As Yale Professor Akhil Reed Amar points out in his 1998 book The Bill of Rights, the first ten amendments — in particular the First Amendment — were conceived not as ways to protect the voices of unpopular minorities. Instead, they suggest . . .

an even stronger kind of majoritarianism…. The body that is restrained is not a hostile majority of the people, but rather Congress…. [C]ongressional majorities may in fact have ‘aristocratical’ and self-interested views in opposition to views held by a majority of the people.

Thus, although the First Amendment’s text is broad enough to protect the rights of unpopular minorities (like Jehovah’s Witnesses and Communists), the Amendment’s historical structural core was to safeguard thje rights of popular majorities (like the Republicans of the 1790s) against a possibly unrepresentative and self-interested Congress.

See Akhil Reed Amar, The Bill of Rights (1998) at p. 21.

From a framer’s perspective — even from a ‘strong government’ sort of guy like James Madison — it’s easy to make a series of absolute commands to one branch of government, especially when you think that the other parts of the government will fill in the gaps. We’d never get such clear, decisive language in any putative Bill of Rights drafted de novo today, because anyone walking in the door to draft them would expect the federal government to do a mess of things that just weren’t contemplated in 1789.

At the end of the day, if the people needed — or wanted — laws touching on speech, religion, press, firearms…well, those would be handled by their local legislators in their local governments. The local representatives in the state legislatures, after all, were their friends and neighbors, the people they went to church with, who showed up at weddings and drilled with them for militia duty. In 1790, the population of Pennsylvania as a whole, for instance, was a third of  the 2010 population of Philadelphia alone. The people were free to elect representatives who would pass a Bill of Rights analogous to that in the federal constitution. Or not.

What happened?

Well, the Fourteenth Amendment really messed things up. The fact that it arrived in the interim and upset a bunch of (presumably) carefully-crafted laws regulating all manner of morals and mores that the States had enacted may be too bad for them. But whatever those laws said, and however they were interpreted, they ought to be irrelevant to our analysis of the words in the Bill of Rights.

Ultimately, what matters is what was said and meant in 1789, and at that point, they were commands to the federal government, not a description of what the citizenry could do without fear of federal harassment. If we’re really applying them to the states as written and intended, it’s actually a pretty broad proscription on every level of government. If you don’t like the absolutist language, well, there’s a perfectly serviceable way to amend it.

Now, that said, I’m not going to recommend that you try that argument in Court at this time. The Courts are already headed in a specific direction, and for the Second Amendment, that’s called ‘intermediate scrutiny.’ It will take a Supreme Court decision or a Constitutional Amendment at the federal level to knock them off that track.

Or, perhaps, a push in the several states for Vermont-style Constitutional Carry. Eliminate the law at the local level, then it doesn’t matter what the federal courts think is permissible for all levels of governments.

Notes

[1] I say ‘plurality’ because it appears that only Justices Pariente, Labarga, and Quince signed on to the opinion. Of the others, Justice Lewis concurred in the result, but didn’t write a separate opinion explaining where he differed. Justices Canady and Polston dissented, and Justice Lawson did not participate in the decision. (Hat tip: Eugene Volokh, Volokh Conspiracy.)

54 Responses to Florida Supreme Court Affirms Open Carry Ban

  1. Regarding points #2 and #5…An 18,19,20 year old can legally possess a firearm in the state of Florida and is not eligible for a CHL there (21+). Resubmit case with an 18,19,20 year old who has standing 🙂

    • The NRA tried that with a couple of cases out of Texas. By the time they filed their cert petitions the plaintiffs had all become 21 years of age or older.

      Of course the NRA could have filed a motion in the court of appeals to add new plaintiffs so that it would have standing once it went to SCOTUS but it did not.

      Another fatal error brought to you by the $1,300/hour NRA lawyer Paul Clement.

      • Sounds like what NRA did in the Otis McDonald case. Alan Gura got no support from NRA, McDonald was funded by SAF. Like two months before Gura’s date in front of SCOTUS, NRA hired insider former Solicitor General Paul Clement to barge into the case and steal ten minutes from Gura’s oral argument time. This way NRA can send fundraising appeals to the retards claiming they supported Otis all along.

        We know NRA doesn’t really care about black people like Otis McDonald, because Chris Cox & Chuck Cunningham at ILA let their lobbyist Todd Vandermyde put Duty to Inform w/ criminal penalties in Illinois’ 2013 concealed carry bill.

        DTI doesn’t concern NRA members in all-white small towns, it’s just population control for blacks in Chicago and Cook County, and the racist hicks don’t really care about that. After they use blacks like Otis and Shawn Gowder for plaintiffs, they get flushed down the toilet in the bills.

        Liars, rats, and scum: what a team we have at NRA HQ.

        • Roe was capable of becoming pregnant again which is why it was capable of repetition. All of the natural born plaintiffs in McGraw had reached the age of 21 and would never again be younger than 21.

          The only thing your post proves is that lawyers should not be allowed to even possess firearms, let alone carry them in public.

  2. It is the scrutiny thing that concerns a citizen. Who are they to judge us. I’ve never understood these people who consent to be judges. How inflated an ego do you have to have to live like that. Look in your eye and leave me alone.

    That being said, I’ve long thought it was better to conceal my intent. No need to open carry. Cover your rig. Don’t scare the city people who can only focus on the implement, and not the ethical behavior problem.

  3. The Gunshine state seems a little cloudy.
    I too cannot believe that a group of so called “educated” judges can’t open a dictionary and comprehend the definition of the word infringe.

    • Send in your life membership to NRA, and they will hire lawyers and lobbyists to “fight for you” in this case. That should create at least five years of job security for NRA in Florida, if their membership base doesn’t die off before then.
      We can hope.

      • I’m an Endowment Member, my wife a Life Member, to be honest I really don’t know who to trust, remember this “Every Organization, No Matter It’s Original Intent, Eventually Exists For Itself”. Ive seen this with my Union, CWA who does nothing for retired Members & several Pro-Second Amendment organizations, the LEAA in particular……

        • NRA Illinois state lobbyist Todd Vandermyde was lobbyist for William Dugan, when Dugan was president of the Intl. Union of Operating Engineers local 150 in Countryside, IL, before Dugan was convicted by Chicago U.S. Attorney Patrick Fitzgerald in 2010.

          In 2011 Illinois Secretary of State business records show Vandermyde as a registered lobbyist for NRA, but not for the 150 union.

          Apparently Chris Cox & Chuck Cunningham at NRA/ILA are not capable of conducting a background check on the character and associations of their employees. Maybe that’s why Vandermyde is a contract employee paid by 1099, it gives NRA plausible deniability.

          NRA can claim they have no idea what their lobbyist is doing, so they are not responsible for his actions. In fact they do not have any idea whatsoever.

  4. “(4) Firearms are scary and scare the tourists; the state’s interest in tourist revenues and Walt Disney Company money are important interests under intermediate scrutiny.”

    FIFY.

  5. I think it’s safe to say that the legislature in Florida needs to reexamine its attempts to pass open carry. At least three times it has been attempted and hasn’t been able to make it out of committee, the last time was because urban representing Republicans weren’t on board with the idea. At the very least there should be an attempt to pass legislation allowing open carry outside the city limits of major cities in the state (Miami, Orlando, Tampa, etc.). I imagine a good portion of the population that would like to open carry would not be burdened.

    • Big part of the problem is those cities you mentioned, and I’d add Tallahassee & most of West Palm to the lot. These places have been flooded by yankee libtards which are causing Florida to experience the “California effect” (Maryland, Oregon, Washington and Colorado are examples as well). Basically libtards eff-up their living area and just move to the next one to start the process all over again.
      Doesn’t help that for the last 15 years the politikos had done whatever they want redoing congressional districts. The 2010 referendum is a perfect example of how badly fucked up this state has become.

      • “….These places have been flooded by yankee libtards which are causing Florida to experience the “California effect…”

        I agree, big time. I moved to Greenacres, FL in 1977 (at age 18). Before the libtards started their real invasion and their demands for more cops, more sidewalks, more schools, etc., PIP auto insurance was $49/6 months, real estate taxes were $230/year and gas was .49/gallon. Now, they complain about their high taxes, high insurance rates, etc. They’re like locusts. They swarm, destroy and move on to the next target.

  6. We have enough F-ing laws! Give me a fricken break. I don’t care what state did what in 1814. Every single amendment in the constitution needs to be viewed in the exact same way. You can’t pick and choose for whatever reason ones going to be strict interpretation and the next looser than Nancy Pelosi.

    • My response to the frequent argument that the Bill of Rights applied only to the federal government is simple – can state and local authorities conduct warrantless searches and have the results stand up in court? Can the governor of your state demand that you allow National Guard troops to live in your house, whether you want them there or not?

      Can local authorities shut down newspapers or television news programs they do not like for political reasons? Does your 5th Amendment protection against self-incrimination not apply in State or local courts? What about the “Rights of the Accused to a speedy and public jury trial and to have the assistance of counsel in his (her) defense?

      If none of those things can be tolerated from State and local government agents, then how is the Second Amendment protection of your right to be armed to fight against tyranny only apply to tyranny on the federal level?

      A natural right is a natural right and as such applies no matter who attempts to legislate it out of existence, at whatever level of government. A tyrant is still a tyrant, even if it’s just your local mayor or sheriff.

      • Yeah, I posted the same thing a few days ago. Since the Bill of Rights does not apply to the states, the states can impose excessive fines and try someone as many times as it takes to get a guilty verdict. Oh, and they can take your stuff — ALL OF YOUR STUFF — if you so much as look cross-eyed at a state or local politician.

      • Amendment 1: “Congress shall make no law…”
        Amendment 2: “…shall not be infringed.”

        Now, what can we see is different about these two amendments? A state passing laws favoring a majority religious view was not only common at the time of ratification, but seen as a crucial element to maintaining a state’s unique independent identity and unity (how quaint the notion of seems today, huh?) Firearms controls were never meant to be a significant burden, at any level of government, but at the time of ratification, the federal obviously lacked the power to dictate terms to the member states. Still, such a broad declaration on the heels of a war fought in part because of disarmament efforts by the British made it pretty clear that the only gun laws on the books in this brave new America would be very limited and locally-derived (as opposed to dictated by states, let alone federal). And that’s why, until Reconstruction and all the abuse of power that Pandora’s Box unleashed, gun laws were almost all seen at the city level or lower, and rarely at state let alone federal levels.

        • “A state passing laws favoring a majority religious view was not only common at the time of ratification, but seen as a crucial element to maintaining a state’s unique independent identity…”

          It was all too common, and often detested.

          Thomas Jefferson fought almost his entire political career to do away with slavery and State-sponsored religion. He was especially annoyed by Virginia requiring tithing to the Anglican church by every citizen, whether or not they belonged to that church.

          The Congress of Virginia, which was home to Jefferson and Madison, was the source of much of the genius we see in the Declaration of Independence and in the Constitution. In the Virginia Declaration of Rights, adopted in 1776, we see:

          Articles 7–16 propose restrictions on the powers of the government, declaring the government should not have the power of suspending or executing laws, “without consent of the representatives of the people”;
          [13] establishing the legal rights to be “confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage,” and to prevent a citizen from being “compelled to give evidence against himself.”
          [14] protections against “cruel and unusual punishments”,
          [15] baseless search and seizure,
          [16] and the guarantees of a trial by jury,
          [17] freedom of the press,
          [18] freedom of religion (“all men are equally entitled to the free exercise of religion”),
          [19] and “the proper, natural, and safe defence of a free state” rested in a well regulated militia composed of the body of the people, trained to arms, that standing armies in time of peace, should be avoided as dangerous to liberty;
          [20] Article 8 protects a person against “being deprived of his liberty except by the law of the land” which later evolved into the due process clause in the federal Bill of Rights.

          Article 12 is the first ever codification of the right to a free press and was an important precursor to the First Amendment to the United States Constitution.

          https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

          Also, note this well:

          Article 1: “…all men are by nature equally free and independent, and have certain inherent rights of which . . . they cannot deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety,”

          RIGHTS WHICH THEY CANNOT DIVEST OR DEPRIVE THEIR POSTERITY. That is the definition of a “natural right”.

  7. So, the argument lies upon the government taking authority over public safety, and the carriage of firearms in an openly displayed manner is a danger to public safety, supported by an argument of what may occur (targeted for criminal activity) but lacks any actual data.
    So if the government presumes to enact and promote legislation based upon the interest of keeping the populace safe, who in this buerocratic chain of command gets shitcanned if the law fails to provide any safety for the public?
    It could easily be argued that these varied laws throughout the states promote violence by disarming citizens, encouraging those with ill intent to predate upon the citizenry, leaving no recourse for defense other then relying on the state, this is highlighted most in America’s biggest cities, where you are disarmed in all but the most benign of areas, yet your chances of becoming victim rise exponentially just by being there.. the state takes responsibility but is not held accountable, ensuring that no matter what happens, the state will always have a job, this looks like the courts are just ensuring job security.

    • “…who in this buerocratic chain of command gets shitcanned if the law fails to provide any safety for the public?”

      A government job means never having to say you’re sorry. Chicago police detective Jon Burge systematically tortured suspects and extracted false confessions to put people on death row, but he is pulling his C.P.D. pension right now in federal prison. I believe he is housed in Florida.

      Meanwhile the cop suckasses and brain dead NRA members from Hooterville continue to embrace the Massad Ayoob fantasy that “the police are our friends.” It’s less frightening to the retards and old farts to pretend that America is stuck in 1972. Maybe NRA will shrivel up and blow away along with its membership.

      • Or maybe you’ll finally stop shit-spamming the NRA in EVERY. SINGLE. POST you make on this site.

        I hope Bloomberg is paying you well, since NO ONE obsessively hates the NRA like you do without being a Democrat.

        • The pain between your ears is called cognitive dissonance. The realization that NRA is a faceless bureaucracy run by unelected staff that are actively working to sell you out to police unions causes you discomfort. I understand. Wayne LaPierre is the father figure you never had, and you want him to take care of you and nurse you like an infant.

          Picture Wayne up in the heavens flying over your trailer park at 50,000 feet in his private jet. Picture his face filling the heavens above you, beaming down on you with self righteousness. As you look up to witness the contrails of his jet streaming by, the moist effluvia that blankets your face is as fresh as the morning dew.

          Really it’s the overflow from his gold-plated lavatory being jettisoned over your trailer park. That’s the closest you will ever get to touching the hem of his garment.

    • Yup, basically the same justification and chain of thought that kept Japanese-Americans interned for the duration of WWII despite the lack of charges and the fact they were American citizens; they looked like Tojo’s dogs, therefore they were dangerous to let out in the daylight.

  8. But just north of our good southern neighbors here in GA open carry is legal. So where is the blood in the streets in GA? Anyone? *crickets*

    • I’m a Florida resident staying in GA., for a while. I carry my 45 cal. open here its like walking around with a cup of coffee NO ONE PAYS ANY ATTENTION TO It. WHATS THER BIG EFFING DEAL?????????????????? Libtard assholes it all it is. I had 2 people thank me here in GA. for open carrying. an elderly lady told me thank you, I feel safer seeing that. I thanked her.

  9. I agree “Shall Not Be Infringed” means just that, NO law can be passed that infringes on our right to own & carry firearms BUT, no where does it state concealed or open carry. I live in NY, I see the way people look when an Armor Car Guard walks into McDonald’s, it is with fear & suspicion. I personally prefer people carry concealed, so as to NOT turn more ignorant’s against us. For the record, we now have over 22,000 Federal, State County & City gun laws, ALL Un-Constitutional

  10. Excellent. This is the next Caetano. Counsel for Norman should have a field day at SCOTUS with this matter.

  11. How did NRA sabotage this lawsuit? I smell a rat again at NRA HQ.

    Accept any sort of licensing regime maintained by police and you already lost before you started. Berron v. Illinois State Police in Illinois was just turned down for cert review by SCOTUS. The 7th District Federal Appeals Court in Chicago basically said that since the applicant submits to the licensing process, “preponderance of the evidence” is okay for the standard of review.

    That’s the same “standard” of evidence as Chicago red light cameras! Hence John Berron was denied his carry license because the local fuzz “feel” he’s a bad guy.

    This is why NRA, Inc. only advances licensed concealed carry, and sabotages open carry. A complicated licensing scheme controlled by cops gives NRA lobbyists permanent job security to “fix” the shit bills they put up in the first place.

    • I smell a rat at TTAG that prattles on endlessly about how the NRA is the worst thing to happen to gun rights since JFK’s brain made a quick exit…

      • That smell is the raccoon you have hanging up in your barn. While it is easier to skin for the hide after aging, do not let it sit out too long, or it will spoil.
        Do you prefer to use headlights or a hand-held when poaching coons?

      • I just don’t read Demo Man’s posts. If you read one of his posts, you’ve read them all. NRA and Todd Vandymere entered a demonic pact along with police unions to benefit lawyers. You really don’t understand how attorney fees are awarded win you think lawyers losing a case is a good business strategy for the NRA making money.

        • Apparently you can read, but you can’t spell. Illinois state NRA lobbyist “Todd Vandymere” is spelled correctly above, as well as in other posts which you don’t read. Or can’t read? I hope your briefs show better spelling and reading comprehension skills than what you exhibit here.

          What sort of hack has the time to post as much as you do here? Who are you employed by? Part-time as city attorney for a dusty little burg in Texas? Law West of the Pecos? Only a government employee could have this much time on their hands. Tell us how it all works.

          Lawyers, lobbyists, and cops have a lot in common. All parasites that produce nothing.

  12. Every time that twatwaffle Pariente comes up for a retention election, I vote her down. It’s been two cycles that I recall, and she still infests the bench.

    If the NRA wants to keep Florida free(life member talking here) we need to target judicial retention elections and remove these idiot judges.

    • “If the NRA wants to keep Florida free…”

      The unelected staff and advertising agency that control NRA want no such thing. Crummy case law like this gives them job security for the next ten years “fighting for you.”

      Which apparently they did not do in Texas’ open carry bill last year. Instead NRA sided with the police unions to require a concealed carry license before open carrying. Great work as always.

  13. Excellent news! I don’t need to see your gun when I go shopping, to the library, have lunch, or to the beach.

  14. What none of these justice’s mentioned is FL CCW imposes a poll tax if you wish to bear arms. Permits are not free. There is a fee (tax) and it’s a recurring tax. The ONLY way to excercise your right legally in this state is to pay for it.

    • And that would have to be the basis of the legal challenge. However, I imagine the plaintiff challenged Florida’s open carry ban on Second Amendment grounds rather than poll-tax grounds.

      Someone in Florida needs to bring a new lawsuit demanding that Florida do any or all of:
      (1) provide zero cost licenses for concealed carry
      (2) provide zero cost licenses for open carry
      (3) eliminate licensing requirements all together

      • 2nd Amendment legal analysis from the Illinois residents that sold out Otis McDonald. What legal strategies do you and the rest of the ISRA clowntards have in mind for the IGOLD March of the Hicks- 2017 in Springfield? Bold moves like “improving” Illinois 2013 concealed carry bill by allowing the rednecks to buy ammo at HickMart with just their CCL instead of FOID card?

        That was a great tradeoff with the IL state police in SB836. Phelps and Vandermyde traded off forcible gun seizure for ambulance drivers and cops, so you could buy ammo with just the one I.D. card. What huge victory is next from Larry the Cable Guys?

  15. The S.C.O.T.U.S. ruled in Scott v. Sandford (1857) that if persons of African ancestry were citizens they would possess the same rights as Whites did. Chief Justice Taney, writing for the majority, then proceeded to list some of those rights:

    “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
    https://www.law.cornell.edu/supremecourt/text/60/393#writing-USSC_CR_0060_0393_ZO

  16. Nonsense. Can every non-prohibited person carry a concealed weapon legally? Plainly not. Non-residents and those who have not had a chance (or the funds) to get a conceal carry permit come to mind. Not to mention there are firearms which are difficult if not impossible to conceal, particularly in hot weather.

    Once again we have a court that spends pages upon pages in the pursuit of ignoring the clear and plain meaning laid out in the Constitution. Conceal carry can be regulated using a much stronger argument, but of course that’s not enough…

  17. Kentucky has been an open carry state since its inception and beginnings in 1815. It has been a constitutional open carry state since 1815. Never has open carry been an issue in Kentucky like stated by the Florida supreme court judges. It is laughable to see judges go thru this dumb founded arguments about open carry being more dangerous than concealed carry. Why did they not look at the criminals committing crimes in open carry states to see if criminals took weapons from open carriers in those states? Because they would not find many at all, if not none.

  18. They’re applying a balancing test appropriate for rational basis review, using that to get their preferred policy position past a constitutional test, and labelling it ‘intermediate scrutiny’ as as smokescreen.

    That’s it, in a nutshell. I wonder, did anybody remind the liberal justices, before they eviscerated intermediate scrutiny, that gender discrimination is also an intermediate scrutiny topic?

  19. Justice Scalia, who wrote the Heller decision, said that if you asked the man on the street in 1791 if the Second Amendment protected his right to keep and bear arms he would have said “Yes!”

    The Supreme Court in 1833 said the Bill of Rights is limited to the Federal government. The 14th Amendment was enacted to make it apply to the state and local governments. A series of Supreme Court decisions in the 1870s gutted incorporation and as a result, we have been subjected to piecemeal incorporation of the Bill of Rights ever since. The right to a trial by jury in civil cases still has not been incorporated against the states.

    The 2010 McDonald decision fully incorporated the Second Amendment against all state and local governments via the 14th Amendment. Incorporation brings with it all prior case law as it applied to the Federal government. The McDonald decision did not have to, but it did, explicitly hold that the Second Amendment right defined in Heller was incorporated against the states.

    No reasonable man can argue that where the Heller decision said that concealed carry is not a right under the Second Amendment that it meant the opposite. And it certainly did not say that states can choose between what it said was the right guaranteed by the Constitution, Open Carry, could be substituted for something which is not a right, concealed carry.

    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 and it certainly will not be because the Norman decision doesn’t conflict with Heller, McDonald, Caetano and Baldwin.

  20. One passage in the article kind of says it all: “Florida continues to respect the right to keep and bear arms — since anyone who isn’t a prohibited person can obtain a license–it’s simply channelling it into concealed carry.” Uh if you have to ask permission of the Governmnet i.e. “obtain a license” it is no longer a Right, therefore Florida does not respect the Right to keep and bear arms.

  21. As a law student and pro-gun person, I generally cringe when reading articles which analyze 2A in court cases (while saying in my head “that’s just not how any of this works”)… this article was a refreshing change of pace.

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