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.
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.)