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

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.”

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.

“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)