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Appeal Court Upholds Florida’s Ban on Open-Carry, But Case Appears Headed For Supremes

| February 18, 2015

Legal in most states, but not in Florida and five other states. (Paul Weaver)

Legal in most states, but not in Florida and five other states. (Paul Weaver)

Two years ago—on Feb. 19, 2012—Dale Norman, a resident of St. Lucie County, was walking on a sidewalk in Fort Pierce when he was quickly arrested at gunpoint by police officers. They’d noticed his gun holster, clearly visible at his waist. He had a valid concealed weapons permit. But he was charged with violating Florida’s ban on openly carrying weapons, a second-degree misdemeanor. A jury trial found him guilty. A county judge fined him $613.


The case drew the attention of open-carry advocates, including Florida Carry Inc., the gun advocacy organization that lends legal support in gun-rights cases (Norman is represented by Florida Carry’s chief attorney, Eric J. Friday) and Norman challenged the constitutionality of the Florida ban. The court in St. Lucie denied his various motions, but certified three questions to the 4th District Court of Appeal  in West Palm Beach, including a direct question about the constitutionality of the ban and its perceived vagueness.

Today (Feb. 18), the court unanimously upheld the ban.

In a 26-page decision that analyzed two relatively recent, key U.S. Supreme Court decisions defining and expanding the individual right to bear arms along with a discussion of Florida law and the history of gun rights in the state, the court concluded that “Florida’s ban on open carry, while permitting concealed carry, does not improperly infringe on Florida’s constitutional guarantee, nor does it infringe on ‘the central component’ of the Second Amendment—the right of self-defense.”


Florida is one of just six states where open carry is prohibited.


To buttress its point, the court noted that the state’s licensing requirement doesn’t restrict the right to bear arms, particularly when the state’s very permissive licensing requirements are compared to New York or California. Under the California licensing regulations as of September 2011, there were only 35,000 authorized gun-permit holders in a population of more than 37 million. New York City had issued just 5,700 permits as of December 2010, in a population of over 8 million. In comparison, Florida counted 1.54 million active permits at the end of 2014, in a population of 19 million, while the state had issued concealed weapons permits to more than 2.7 million people since 1987.

“No empirical evidence suggests in any way that Florida concealed carry permits are unduly restricted to only a few people, such that a citizen’s right to lawfully carry a firearm is illusory,” Judge Mark Klingensmith wrote for the court. She was joined by judges Melanie May and Cory Ciklin.

The court was also emphatic in its defense of the Legislature to regulate how and where firearms may be carried. “While the right to carry outside the home has been established by the highest court of the land, no decision interpreting the Second Amendment can be cited for the proposition that a state must allow for one form of carry over another,” the court ruled. “Because the Legislature has the right to enact laws regarding the manner in which arms can be borne, it is likewise permitted to forbid the carrying of arms in a particular place or manner which, in its collective judgment, is likely to lead to breaches of the peace […] provided a reasonable alternative manner of carry is provided.”

The court left the door open for the Legislature to adopt an open-carry law, and ironically, Florida, considered one of the most gun-friendly states in the nation, is one of just six states—Texas, New York, Illinois, South Carolina and California—where open-carry is outright illegal. The majority of states, according to the Law Center to Prevent Gun Violence, allow open carry with neither license nor permit.


Watch Dale Norman’s Arrest

“What is clear is that the state cannot enact legislation that effectively prohibits both open and concealed carry at the same time,” the court ruled today. Citing the relevant Florida law, the court concluded: “In our opinion, section 790.053 does not effectively enjoin responsible, law-abiding citizens from the right to carry a firearm in public for self-defense. Rather, it permits the typical responsible, law-abiding citizen the ability to bear arms in public, albeit with constitutionally permissible restrictions, for the lawful purpose of self-defense. Florida’s licensing scheme is not unduly restrictive, and is consistent with the valid use of its police powers and the dictates of the Constitution to promote safety for both the firearm carrier and the community at large. Further, open carry is not the only practical avenue by which Defendant may lawfully carry a gun in public for self-defense. Through its ‘shall-issue’ permitting scheme, Florida has provided a viable alternative outlet to open firearms carry which gives practical effect to its citizens’ exercise of their Second Amendment rights.”

Florida Carry indicated that it would appeal the decision: “We’re going to the Florida Supreme Court and we need your support to get there,” it stated on its Facebook page Wednesday.

4th Circuit Court of Appeal Ruling on Florida’s Open Carry Ban (2015)

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12 Responses for “Appeal Court Upholds Florida’s Ban on Open-Carry, But Case Appears Headed For Supremes”

  1. Dennis says:

    I have had an CWP since fl issued them. I am not in favor of open carry. The last thing we need is some guy walking into Walmart or a supermarket carrying an ar15 strapped to his back. All this will do is cause people calling law enforcement and run out the stores. This will cause all kinds of problems. If ur fishing or hiking I don’t see any problems with it. But all this will do is cause panic. I carry everyday and no one every knows this is how it needs to stay….

  2. Chuck Smith says:

    If you read the statute as I do, the following is provided.. Statute 790.053 (Open Carry Provisions) and Statute
    790.026 (Concealed Carry Provisions) do not apply as per Statute 790.25 (Lawful Ownership, Possession and Use of Firearms). Specifically 790.25(3)(h).. a person fishing, camping, or lawful hunting, or going to or retuning from fishing, camping, or lawful hunting expedition. As I understand it, if you are at a lake fishing (legally) you can carry, concealed or otherwise I have seen this happen many times and most are not aware of it. Any Lawyers out there?

  3. Ron R. says:

    Can someone please explain to me why it is so important to be able to display one’s firearm openly?

    Why is it not enough to be able to carry a concealed firearm?

    • ExNuke says:

      Have you ever been to Florida in the summer? Like Texas, you can be arrested and fined hundreds of dollars for “printing” or if your gun is accidentally exposed even if you have paid the “poll tax” and begged permission from your political masters. For example, the guy mentioned in this article who filed this law suite.

  4. downinthelab says:

    Shall NOT be infringed

  5. confidential says:

    No to bullies carrying guns! That is why we pay taxes have law enforcement to protect us! Or are we going back to the times of the good old far west? What a miss interpretation and distorted understading of the second amendment!

    • ExNuke says:

      The Police are not paid to “protect” you and the Supreme Court has repeatedly ruled that they have no duty to do so. The Police exist and are paid to arrest you AFTER you have committed a crime (and to collect revenue and keep the peasants in line.)

  6. confidential says:

    I am over 70 years old and I got to this age without the need of owning or carrying a gun and also without the urge of having fun while shooting and killing any wildlife! Also I never had to give up my rights and or summit to the threats of any bully. When one of those antisocial dudes came upon my space and threaten us on any manner in a rare occasion, I just called law enforcement and problem solved…they carry the guns for me and I trust and respect them.
    I believe if not for the greedy NRA lobby that all can carry guns and would be otherwise…many thousands of lives will be saved daily in our country from these pathetic deaths of Americans killing each other! I see that many pissed off Americans with a gun is his/her holster will use it for not sufficient reason!

  7. zach says:

    Can you imagine if a court said it was ok for a legislature to require a license to exercise free speech? The right to bear arms does not apply to concealed carry, it almost never has. This is a poor opinion by the 4th DCA. Unfortunately the courts are so anti gun I don’t see the Supremes doing anything about it.

  8. Anonymous says:

    good point Zach the Second is the only true right we have that many see as one that needs permission from Government to exercise.

  9. Kind of curious result (holding that banning open carry is not protected by the Second Amendment) considering that the Supreme Court reasoned in the landmark Heller decision that open carry was the protected right, and that concealed carry bans were presumptively lawful. 30 states allow the open carry of properly holstered handguns without needing a license; It’s time Florida fully legalize both campus carry and open carry. Learn more about open carry at OpenCarry.org. And carry on!

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