On Wednesday, in the matter of Norman v. Florida, the Florida Court of Appeals held that banning the open carry of firearms does not violate the constitutional right to keep an bear arms. Defendant Dale Norman, who had a Florida Concealed Weapons License, was arrested for openly carrying a holstered firearm in violation of section 790.053, Florida Statutes (2012). The Florida Court of Appeals held that the Florida law banning open cary does not “destroy the core right of self-defense enshrined in the Second Amendment” as non-prohibited persons have the ability to obtain a Florida Concealed Weapons License . . .
Defendant was not prohibited from obtaining a concealed weapons permit—indeed, he possessed one at the time of his arrest. Likewise, Defendant did not argue that he was somehow precluded from the ability to lawfully carry his weapon in a concealed fashion. He was able to lawfully possess his firearm, albeit while concealed, for self-defense purposes as recognized by the Second Amendment, the Florida Constitution, and Florida Statutes. The course of conduct he chose, that of openly carrying his firearm for protection, was not the only option available to him to exercise his rights.
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.17 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.
(Citations omitted).
The Court of Appeals did allow that there were limitations on the legislature’s power to enact restrictions. In fact, it calls out New York, specifically, as it does so:
We stress, however, that the Legislature’s discretion in this area is not limitless. For example, the federal court in Kachalsky upheld New York’s prohibitive licensing scheme using an intermediate scrutiny analysis that gave too much deference to the legislature, without considering the fact that the licensing scheme in question rendered the right to bear arms outside the home virtually non-existent. See Kachalsky, 701 F.3d at 97 (stating that “[i]n the context of firearm regulation, the legislature is ‘far better equipped than the judiciary’ to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks. Thus, our role is only ‘to assure that, in formulating its judgments, [New York] has drawn reasonable inferences based on substantial evidence.’” (alteration in original) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994))). A right is essentially “destroyed [if the] exercise of [that] right is limited to a few people, in a few places, at a few times.” Peruta, 742 F.3d at 1170. The degree of legislative deference exhibited in cases such as Woollard, Drake and Kachalsky goes too far, and would serve to validate expansive restrictions inconsistent with those rights guaranteed by the Second Amendment and the Florida Constitution.
(Emphases added).
(The Kachalsky decision referenced above can be found here, for the curious; in it, the 2d Circuit held that New York’s handgun licensing scheme does not violate the Second Amendment by requiring an applicant to demonstrate “proper cause” to obtain a license to carry a concealed handgun in public.)
This is a disappointing decision for those who were hoping for a judicial remedy on open carry in Florida. Although I personally don’t openly carry a firearm except to and from the range, it seems to me that the issue ought to be primarily one of aesthetics and tactics. And even if the right to keep and bear arms is technically followed to the letter because the concealed carry option remains available for most people, Florida’s ban on open carry strikes me as a typical bit of nanny-state regulation that serves no discernable purpose that I can figure.
Assuming that this decision isn’t overturned on appeal, people who advocate open carry still have the a path to remove Florida’s ban through the legislature, and I suspect that they’ll at least have an even chance of being able to push it through at some point. Such things are always open to the vagueries of politics, though. It sure would be nice (and here, I admit to a great deal of influence from the estimable Randy Barnett, who makes the case more eloquently than I could,) if courts would concern themselves more with identifying and restricting the powers of the legislature to the letter of the law, and less doing likewise with people’s rights.
Florida, that Bush country?
The 2nd is just so darn hard to understand.
OK, some of you constitutional lawyers out there help me. I’m thinking that you cannot deny a Constitutional right to someone because they are indigent, at least in some cases. For example, the right to counsel in a criminal case has been held to include the right to “free” counsel if you are indigent. Continuing with the Fla court’s rationale here, could someone not claim that as an indigent, he cannot be excluded from the right to bear arms for self-defense because he cannot afford the expenses associated with obtaining a CHL? Just thinking out loud here. I’m still seeing a right being treated as a privilege in this decision. EDIT: Just saw the hole in my own argument: if I can’t afford the cost of a CHL, how am I supposed to get a gun–right? Still annoys me, the way the state insists on licensing a fundamental right.
“EDIT: Just saw the hole in my own argument: if I can’t afford the cost of a CHL, how am I supposed to get a gun–right?”
That was your Grand-Pappy’s gun, remember?
REMEMBER???
Good!
Good, got that out of the way. What about the rest of the argument, then? Have I missed something?
Not as far as I can see, but I ain’t no Con Law lawyer.
The idea appeals to me as we can probably phrase the argument the same way the left argues voter ID laws.
What am I missing on that angle?
Hand me down from Dad or Grandpa.
No reason to edit. A gun could very well be lawfully given to you free as a gift. Or it could be inherited, or you could even make a primitive one.
Honestly? The law is exceptionally clear. Any infringement whatsoever upon the right to bear arms is unconstitutional, and consequently stands in violation of the supreme law of the land. The right is placed in wording that is not conditional, with the strongest possible phrasing. Any prevention of an individual from possessing or carrying a weapon is in some way, an infringement.
The problem lies in that the supreme court has, over the past 200 odd years, interpreted the constitution in a very flexible manner, upon -all- amendments. I have the right to say whatever I wish, whenever I wish, without reproach or censure from the state…except when I’m a minor, on school(read: state) properties, when the material is deemed obscene, when a gag order is filed against me…ecetera.
I have the right to a swift and speedy trial, unless of course there’s a backlog and the courts are going to take two years to catch up to my case.
I have a right against cruel and unusual punishment, unless I happen to go streaking. Then I go on the sex offender list for life.
I have the right to have my lawsuit tried before a jury, unless of course I’ve signed a mandatory arbitration agreement, in which case I have abrogated that right.
I could go on, of course, but the crux of the point is that our respect for the constitution is in a sad state in this day and age. Despite the fact that it was specifically described as being both supreme in its domain, and exceptionally difficult to alter, all three branches of the government like to try and quietly bend and push at its edges.
“the law is very clear”. huh.
It is very clear. It’s also very clear that traitors and tyrants are ignoring it.
Dustin, you be sure to let Antonin Scalia and John Roberts know that they are traitors and tyrants, and that their understanding of what the word “infringed” means is all wrong.
Except that telling people they may not disturb the peace by OPENLY carry firearms is not infringing on your right to carry them. At all. This is how it goes…if you can carry a gun…your right has not been infringed. Once they start telling you when you MAY NOT carry and where you MAY NOT carry, then they have infringed upon your right to keep and bare.
Merely bearing a firearm openly is not disturbing the peace. One would have to do something other than simply bearing arms openly.
I’m a fan of constitutional carry, but in its absence I think permits/licenses to carry should be available at no charge to all who are qualified. The cost should be born by the taxpayers generally, much like the cost of operating polling places, rather than only being a burden upon those who choose to exercise their right to carry.
Why would you even have a permit/license if it was free and available to everybody?
That defeats the whole purpose of having a permit/license, which is to be a revenue stream for the State and a means of restricting the right.
Yup. That’s why I would like to see it attacked on equal protection/indigency grounds.
An entire industry has grown around the required training and accouterments for the necessary for lawful concealment of firearms. There are websites and magazines centered around CONCEALED carry. This adds to the pressure against constitutional carry. Additionally, some individuals feel somehow more special than others because they have obtained a license. There are a lot of groups with interest in pushing privileged carry over constitutional, rightful carry. About the only group that I can think of who are pushing for constitutional carry is comprised of those who understand the value of true Liberty and dangers of tyrannical government.
A firearm can be gifted to someone. When I was able to afford to do so, I gave firearms to those who couldn’t afford them and I loaned firearms to those who couldn’t afford them right away. Even now, I retain loaner firearms for those who cannot afford to purchase immediately. Thankfully, I’ve never had a borrowed firearm not returned in a timely manner.
Another Robert,
As others stated, the wording of the Second Amendment does not allow for any restriction, period. Even if we ignore that fact, concealed carry licenses are still unconstitutional because they cost money and government is not allowed to charge money before people can exercise any other right. Why doesn’t government require a free-speech license or a free-religion license? Because they know the courts would immediately issue an injunction against enforcement. How about forcing people to purchase a license before they can exercise their Fourth Amendment right to due process or their Fifth Amendment right to be free from self-incrimination? Oh, I know, let’s charge people a license to ensure that government does not quarter troops on their property in violation of the Third Amendment.
It is illegal for government to charge a fee before people can exercise any right. That is exactly the grounds under which the defendant in Florida should be challenging the case. That would force either free open carry or free concealed carry. Unfortunately, the courts would probably still allow government to require a license even if it was free.
And how do we know that government is treating our right as a privilege? Mr. Farago exposed that with his statement above, “Such things [Florida legislature passing open carry legislation] are always open to the vagueries of politics, though.”
“illegal”. huh. why don’t you drop John Roberts a note and let him know the errors of his ways.
Arguments for carry restrictions and carry via State-issued licenses are brought to you by the same people who argue that requiring a photo ID in prder to vote constitutes a poll tax and disenfranchises the poor and minorities.
So no freedom of speech on TV because radio is available.
Gotcha.
/sarc
Excellent analogy. The Second Amendment doesn’t say the right to keep and bear arms “shall not be destroyed”, it says “shall not be infringed”. “Infringe” is a synonym for “weaken”, not “destroy”.
You have a right to free speech… but only with a license and you must conceal whatever it is you’re saying. Other than that, it’s a free country – as in free welfare, food stamps, unemployment, paid non-employment, free housing, free phone, free cable tv, free medical care and education — all free, unless you work and choose not to be a parasite, but you are free to be a slave to the parasites.
Yes, precisely. My thoughts exactly. That’s what’s so damned annoying about it.
“The Florida Court of Appeals held that the Florida law banning open cary does not “destroy the core right of self-defense enshrined in the Second Amendment”
Darn… all this time we were misreading the amendment… the right to keep and bear arms shall not be destroyed.
So, if we don’t infringe on this portion of your rights, it is clear that “shall not be infringed” means that we CAN infringe on every other possible interpretation of your rights. Say what? If the tables were turned around, these dimbulbs would be beside themselves deriding such “logic”. They would think it laughable, idiotic, moronic. It’s just that liberal blindness which allows them to not see what they don’t want to see.
Look for a right to privacy in the constitution, then look for a right to keep and bear arms. Try to do the math for yourself.
Ok, did Dale lose his right to own firearms along with the case?
Regardless of how anyone feels about the law, Mr. Norman clearly violated it. I have seen where there were claims that the gun was accidentally exposed, they are false claims. I watched the video of the violation and arrest. Mr. Norman was clearly walking in public with a holstered handgun fully exposed. I do not know the facts pertaining to his reason for open carry, but clearly, he is a dumb ass.
” I do not know the facts pertaining to his reason for open carry, but clearly, he is a dumb ass.”
He’s a dumb ass for exercising his natural right to bear arms that is specifically enumerated in the Bill of Rights? Gotcha.
Look…unrestricted carry is called “Constitutional Carry” for a reason….that’s the only carry that is truly Constitutional.
What you are saying is that everyone should always obey unconstitutional laws…else be labeled a “dumb ass” on the Internet and get what they deserve in their arrest.
If that were the case…no unconstitutional case would ever go to court get declared unconstitutional.
I smell the utter disgusting stench of a pure Statist…
Or just someone who assumes getting arrested–even unconstitutionally–is a dumbass move.
Careful not to impute a motivation to the condemnation, without further evidence that that is what this individual is thinking. I read the entire comment as being, “he quite deliberately violated the law and arrest was the consequence.” That’s true–whether or not the law is a just law (and this one is not).
” I read the entire comment as being, “he quite deliberately violated the law and arrest was the consequence.””
It is true that he may well have deliberately violated the law and got arrested. That alone does not make him a “dumb ass.” There is the possibility, in this case or another, that such an individual does that precisely to get a case into court…or at least is willing to do so.
The tone of that post was very derogatory as I read it. Ah…the written word…
I smell a sh*t-house lawyer who’s opinions mean f*ck-all when somebody gets arrested for open carry where it is illegal.
It is obvious and clear that you don’t get the bigger picture of what is going on around you. Things are not always about “me me me” and this one guy getting arrested.
Well, why don’t you enlighten me, if you have some sort of magical insight that mere mortals fail to possess.
It was an accidental exposure. He didn’t know it was showing.
So, he was a dumb ass if he did it deliberately and/or the OP can say he’s a dumb ass if he just merely printed?
This is why laws against OC are inherently crap.
I completely agree with you. anyone who open carries against the law is a dumbass. all of their sh*t-house lawyer friends egging them on aren’t gonna be of any help in jail.
Does this mean anything positive for NY???
No legal effect on NY at all, if that’s what you mean.
This was a state appeals court ruling.
This was a Florida state court. The next step is to ask for a rehearing in the 4 DCA and hope that the whole court would side with the defendant. It was just a 3 judge panel. 2 of which were Gov Scott appointees. So this outcome was somewhat shocking to me.
An otherwise law abiding citizen is going to have to be arrested for CCW without paying the tax and asking permission before this has a chance of becoming constitutional carry. Making the only way to carry a weapon here in Florida require a license is an infringement and forbidden by the 2nd. If states are forbidden to require a tax to vote they are most certainly forbidden to require a tax to bear arms.
some people keep saying this or that is forbidden by the 2nd amendment, when SCOTUS has ruled otherwise.
like it or not, your opinion on this topic is irrelevent.
SCOTUS neither wrote nor ratified the Constitution. SCOTUS is wrong to interpret any form of infringement on the right to keep and bear arms as constitutional. All SCOTUS can do is wrongly justify the power of the State to enforce unconstitutional laws that infringe upon the right to keep and bear arms.
Those laws remain unconstitutional, regardless of what SCOTUS says.
your opinion is irrelevent
I wasn’t asking for your assessment of relevancy of my opinion. My assertion was a statement of fact, not opinion.
Chip, I’ve enjoyed reading many of your posts. But in this one, you are wrong. You don’t get to decide what the Constitution means. Your “fact” is but an opinion, and it means f*ck-all in court.
You are correct. The meaning of the constitution is as plain as shall not be infringed. They are four words, with absolutely unambiguous meaning.
And I never claimed that my assertion bears any weight in court – in fact, I stated quite the opposite, by recognizing that SCOTUS has given the power of law to their incorrect interpretation of the plain meaning of the constitution.
The distinction is that I’m talking about what is right, not what the State asserts under the power of law.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
-or-
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Basically, these 3 peckerwood judges just said ccw licenses are a right and not a privilege.
exactly. anyone who sees this ruling as anything other than a win is a dumbass.
anyone who complains needs to try any kind of carry in MA.
But it’s not a Right. You beg for permission, pay a pile of money, get photographed and registered, and treated like a child molester for the rest of your life. How is that a Right? The Judges can say it, but that doesn’t make it true.
To my (limited) knowledge, the courts have never interpreted rights to mean what you think they mean.
Yes because it’s a “shall issue” license. They have to find a reason to deny you. Unlike New York where you have to convince your masters to let you exercise your heavily restricted right to bear arms. What is it now, every 8th Tuesday of the 13 month of the year you can carry a muzzle loaded hand gun?
There is no such thing as a “reason” to deny a Right. A Right is a thing the government has no say in. IF there’s a list of possible deniability, then it’s a privilege.
Seems stupid. It’s like free speech is fine, as long as you say it into a paper bag or under your breath.
Sounds like a limp noodle ruling by a gutless judge afraid of making waves.
3 appeals court judges.
that’s how CA screwed the pooch. No concealed or open carry. Now the courts have to sort it out.
yep. if all goes well, california will lose at the big show and then all of the anti-gun states will have to issue CCWs.
Bingo! This is the down side to Peruta’s reasoning, i.e., with no open carry, you must have shall issue concealed carry. And now, that’s being used against us. With shall issue concealed carry, there is no need for open carry.
does not “destroy the core right of self-defense enshrined in the Second Amendment”
Uh, Florida Court of Appeals, the constitution doesn’t simply forbid government from destroying the core right of self defense. It forbids government from even infringing on it.
I suggest you start attending first grade all over again, and as you work your way through school, concentrate on the parts where they teach reading comprehension.
says the guy in the state with magazine bans.
Same thing needs to happen here as I suggested happen to the lawyers in Florida.
How in the living f*ck does my state’s unconstitutional laws make Florida’s better? Logic fail, from the sh*thouse troll who calls everyone else sh*thouse lawyers.
Why don’t you just clean up your own state’s mess first.
First CA lost their OC, then the CCWs became less and less available. Then the safe-n-sane gun list went into effect, then those pistols can’t be sold without microstamping. Which doesn’t exist.
Slippery slope…
except CA has been steadily getting stricter on gun control,and Florida has steadily been getting more free.
De facto legal open carry in FL: just make every errand a fishing or range trip.
Honey Buns , we really should get this new boat..Its a win win situation. I can remain in compliance with the law while I open carry and you won’t have to spend your shopping money on my bail……..LOL
Within the context of established court rulings, namely that a state does have the authority to prescribe the manner in which arms are carried, I can agree with this decision. I know, the entire infringement condition is a bastardization of the 2A and shall not be infringed means shall not be infringed. Nevertheless, stare decisis has to mean something, or else the constitutional cures, and they would be myriad, rapid and ever changing, would quickly become worse than the disease.
Still, this ruling’s reasoning is a little disturbing, as well. One could just as easily argue that keeping arms, unloaded, locked up, disassembled, in an off site location, miles away from your home, doesn’t destroy your right to keep arms, does it? After all, you do still own them, right? Right……..
I think we just have to keep doing what we’re doing: fighting simultaneously in the courts of law and public opinion, and in the political process. We win in one venue, lock in the gains there, then leverage that victory to win in another venue. Some rulings, some elections, and some polls, may set us back, or at least not move us forward; but overall the momentum is with us and infringements are fading.
“I think we just have to keep doing what we’re doing: fighting simultaneously in the courts of law and public opinion, and in the political process. We win in one venue, lock in the gains there, then leverage that victory to win in another venue. Some rulings, some elections, and some polls, may set us back, or at least not move us forward; but overall the momentum is with us and infringements are fading.”
Very well said.
We do seem to be winning. We haven’t won, but we are winning. It’s basically 1943 in World War II–the tide is clearly turning, but there’s a long, long way to go (and no guarantee the tide won’t turn again). We are chipping away at the infringements; maybe some time down the road we can even go after the machine gun part of NFA.
(I love the people who seem to think we should do that first, and/or that no other battle is worth fighting; it’d be like launching an airborne assault on Berlin with the intention of capturing it, in June of 1942, dismissing the value of the suggested North African, Sicilian, Italian, or Normandy campaigns since they aren’t Berlin.)
You’re right. That’s part of the human condition. Some people want to dominate others, some want to be dominated. Others want neither, but vary in terms of what they’re prepared to do about or for the first two.
I always return to the Gettysburg Address, for inspiration, especially the final clause.
At some point, with 44 (soon, 45?) States in which open carry is legal, with no evidence of public harm, the remaining States ought to be able to be challenged on a strict (or even intermediate) scrutiny standard that the prohibition of open carry serves no State interest or public good, while clearly infringing upon a right that is constitutionally protected against infringement.
Florida is one of the most gun-friendly states in the country.
it kind of amazes me that so many sh*t-house lawyers are complaining about this ruling.
February 21, 2015 at 21:25
It’s consistent with established precedent. My issue is with the established precedent. That was established by some actual sh*t house lawyers.
you would prefer previous precedents, which did not recognize an individual right?
This is the best it has ever been.
CC is now law of the land from Arizona to PA. Instead of bashing a predictable outcome in FL, let’s get CA, MD, NJ, NY, and MA free with national reciprocity.
I think you should reread Heller and the state court decisions which are cited and discussed. This country has long history of restrictions on the manner in which firearms are carried, specifically state laws banning the concealed carriage of handguns, all of which were upheld by the various state supreme courts while continuing to recognize a right to bear arms. My memory is a little vague, but I believe the first case is dated 1836, with the rest of the cases also occurring in the 19th century. These laws were upheld on a public policy/public safety rationale, essentially that no honest man would conceal his firearms, and it was therefore tight and appropriate to ban concealed weapons to keep the rogues at bay. Peruta is the same. It recognizes a right to bear, and concludes that the State may restrict the manner of carry, but must allow some manner in which the right to bear may be exercised, and exercised free of a demonstration of “need” or “good cause.”
yep, good info, thanks
Gun-friendly state or not, the ruling stinks. To say it doesn’t simply because it occurred in a “gun-friendly” state is to invoke a complete non-sequitur.
au contraire. SCOTUS already ruled that a state must have either OC or CC, but does not have to have both. That’s settled, like it or not.
Plessy v Ferguson was settled too. Not to mention Dred Scott. None of which is germane to the fact that you are still employing a complete non-sequitur in your, ahhh, reasoning.
Can you cite that Supreme Court decision for me? That was essentially the 9th Circuit’s ruling in Peruta, but the Supreme Court has never taken a concealed carry case. And Peruta’s decision is not binding on a Florida court in any way.
You are correct, I mixed up circuit court rulings with supreme court rulings
” settled”
Your aggressive attitude in on this page and this assertion that law is “settled” belies your complete and total ignorance of how our legal system works, particularly in regard to interpretation of the Constitution.
Nothing is “settled” any longer than the next case that brings up the question. 2A issues come up several times a year. The results of Heller could be overturned (any aspects) with the next SCOTUS ruling on the topic.
If you think this stuff is somehow written in stone, you are, to put it quite bluntly, wrong.
I was mistaken about SCOTUS ruling on this topic. However, when SCOTUS does rule on a topic, I’m pretty sure there is this little thing called a “precedent” that gets established that tends to bind future supreme courts unless they have a really good reason to overturn it. Oh yeah, and there is also this little thing where supreme court rulings also bind lower courts. So it does become “settled”.
“If you think this stuff is somehow written in stone, you are, to put it quite bluntly, wrong.”
I’d say he is a sh*t house lawyer.
And so it begins. The ability to bear arms as a right is being replaced by a privilege. I have faith that liberty loving Floridians will not allow this ruling to stand for long.
And even if the right to keep and bear arms is technically followed to the letter because the concealed carry option remains available for most people, Florida’s ban on open carry strikes me as a typical bit of nanny-state regulation that serves no discernable purpose that I can figure.
You are wrong, sir. Carrying with government permission is not the same as the exercise of a right. It is the exercise of a privilege. It’s bad enough that we’ve allowed background checks and other infringements to move the exercise of the right towards the exercise of a privilege. But people who ought to know better shouldn’t minimize the fact that this process is destroying the exercise of a right. This isn’t just a “typical bit of nanny-state regulation.” It’s clear cut infringement and a violation of constitutional restraint on government.
I sincerely hope that you will reevaluate your minimization of the infringement and realize just how dangerous to individual Liberty such infringements really are. Replacing the exercise of rights with privileges is deadly to Liberty. Please don’t downplay that danger.
When one realizes that the Second Amendment really doesn’t have much to do with hunting, collecting, defense against ordinary crime, etc; these rulings fall apart. If it is primarily about defense against ordinary crime then these rulings make more sense. Hunting, collecting, and defense against ordinary crime would’ve been commonly understood reasons for keeping and bearing arms. Deterrence and defense against enemies, foreign and domestic, is the important point of the 2A. I firmly believe that the gun rights movement’s over-focus on crime is a trap. Would any real liberty loving individual give up their RKBA if it was statistically proven that increased gun ownership played a role in driving crime rates up? I know that I wouldn’t because defense against ordinary crime is not the only reason that I keep and bear arms. I no longer hunt and was never a collector. I don’t enjoy target shooting and I don’t engage in competition shooting. Self defense and as a deterrent against tyranny are the two reasons that I keep and bear arms**.
(**I fully support and defend the right of the individual to also hunt, collect, target shoot, compete, etc.)
This is in line with most caselaw which has found that as long as you are able to bear arms (by their definition meaning ‘to carry’ not display) the state (with more power in this area than the federal government) can decide to ban open or concealed carry… but not both.
To get around this you would have to find a plaintiff who cannot obtain a conceal carry license but is not otherwise restricted from owning guns. And even then the court would likely make a narrow ruling.
There are more important battles to be fought.
Requiring the attainment of a license is privileged keeping and bearing. It certainly is not the exercise of the right to keep and bear arms. Background check laws exist. Prohibited persons laws exist. However, in many places there are ways around the former. (Of course, they are still infringements.) With this permit-less OC vs permitted CC argument, there is no way (except while fishing or hunting in FL) to carry as a right. Equivocating a privilege to bear arms with a right to bear arms is trading the exercise of a right with a privilege. It’s a trap.
If this sort of decision, privilege is possible so the right can be denied, stands and spreads; the ability to bear arms as an individual right will be destroyed. This is a critical matter that cannot be ignored or minimized. This is a huge issue that cannot be allowed to fester.
To get around this you would have to find a plaintiff who cannot obtain a conceal carry license but is not otherwise restricted from owning guns.
That was already tried in Colorado. An individual from Oregon (no reciprocity) could not carry a gun at all in Denver because Denver (and only Denver) bans OC. Colorado also does not recognize permits if you don’t live in the issuing state (so much for avenues like Utah). In other words there are any of a number of (each and every one of them in fact unconstitutional) laws that could have been overturned to satisfy the complaint.
Instead, the court threw it out.
Hallelujah and hooray for this Judge, as Florida will remain a concealed carry state.
All I ever hear from the OC thumb-suckers is, I want, I want, I want! When you can’t have what you want, you throw a fucking tantrum about how your rights are supposedly being trampled because you can carry, but just not as conspicuously as you want. Too fucking bad for you. Go cry in your blanky with the rest of the other OC cry babies in Texas. Your self-righteous indignation over your inability to open carry is beyond childish….it’s infantile. Please, show me where in the Declaration of Independence, the Bill of Rights, or the Constitution where it says you have the immutable right to open carry a firearm, in public, wherever, and whenever you want. You can’t, can you? The 2nd amendment says nothing about it. It says you have the right to keep and bear arms. Well, the last time I checked, concealed carry is the keeping and bearing arms the Constitution protects. To be perfectly blunt; and contrary to what you might believe, you OCer’s are the problem, not the solution. Ironically, you display the same rigid inflexibility as those who are trying to take our guns away. What up wit that? I live in Florida, and have carried concealed for 25 of my 30 years here, and I have yet to see a single OCer make a logical or cogent argument as to why concealed carry isn’t good enough….for them.
What I can’t help wondering is, why do you OCer’s want, or feel the need, for everyone to see that you have a gun? It all sounds like you people are simply begging for attention. That’s the wrong reason to carry a gun, and if carrying concealed just isn’t good enough for you, then maybe you just don’t have the proper mentality to be carrying in the first place.
If the situation was reversed, CC requiring no permit but the exercise denied and OC being allowed by permit, then I would hold a very similar position. There are differences but the main issue is that a licensed privilege cannot be allowed to supersede the free exercise of the right to bear arms. The problem isn’t about openly carrying or concealed carrying. It’s about a privilege being held out as equivalent to the exercise of a right.
Who died and made you the arbiter of rights? The second amendment says “shall not be infringed “, not “shall not be infringed unless our_fang_thief thinks it is good enough”.
Why are you even commenting here? Isn’t the ability to write in your pen-and-paper journal a “good enough” means to exercise your right to free speech?
I carry concealed, and I consider people like *you* to be part of the problem, because you believe that you have the right to dictate your own preferences to others in the exercise of *their* rights – and worse, you are perfectly happy to let the State use its power to enforce your preferences.
He sounds like a type of Fudd. Good job trolling.
What if you don’t own a pistol and only have a rifle for protection? What if you are fighting a tyrannical government? Are you supposed to do that with your concealed pistol?
If you are fighting a tyrannical government, then the gun laws no longer matter, do they.
Are you a bootliker by choice or necessity?
As a new Floridian I hope this ruling is overturned. Florida gets hot in the summer, I am not a big person, and I don’t like mouse guns (for a myriad of reasons but the main one being this is all I would be able to carry to keep it “concealed”) nor being fingerprinted, registered, etc. to exercise a right which has kept me from pursuing a CCW permit because I find it offensive to go through the process to obtain one being treated like a criminal until proven otherwise. Then you have people like that cop in Maryland going through records to obtain records of CCW holders in other states which really pisses me off.
Maybe if Florida passes a law making it illegal for out of state government agencies to look at my CCW without a warrant like Virginia is trying to pass then maybe I would be more inclined but I like my privacy thank you. To all of those saying “they know you have guns from this website” they still have to work to find what I exactly have or if I really do own such things rather than removing all doubt.
All of you that think I am a dumb ass for saying Mr. Norman is one for his open carry and subsequent arrest, I guess you are the smart ones with so much common sense. So, if you all are so smart, stop being the arm chair warriors and do something yourself. Get yourselves arrested for open carry somewhere it is not legal. Have yourselves taken to the ground or possibly worse. Have yourselves placed in jail. Make your first appearance in court and tell the judge how smart you are after he rules there is enough probable cause to hold you. Put your families through hell. Post bond and then go to trial and loose spending every penny you have on a defense. Yes, I am the dumb ass here!
gregory is correct. and since the supreme court already ruled on this issue, you ain’t gonna get anywhere by preaching to your fellow inmates that you were wronged “by da man”.
“since the supreme court already ruled on this issue”
Will you stop with that. Court Rulings are not permanent.
Proving over and over again your own ignorance does not help your argument…or Gregory’s.
well, first, I’m in error, the supreme court has not ruled on this issue. However, I don’t understand the relevance of your statement “court rulings are not permanent”. NOTHING is permanent, but a supreme court ruling is about as permanent as anything can be. And you are much better having a court ruling in your favor than not.
Mr. Norman = Rosa Parks!
+1
This ruling sucks and is not friendly at all.
So you have to have a $100+ license to exercise a right.
Secondly, If you move out of the U.S. and want to come back to visit, you can’t carry because FL won’t issue to you.
Thirdly, non-immigrant aliens are denied a CWFL. How is it that illegal aliens have rights to education and welfare but a non-immigrant aliens are denied a CWFL in FL.
These restrictions clearly show that in FL a CWFL is not a “right”. If these issues were brought up in court with the proper plantiff(s) then they either would have had to strick down some of these CWFL restrictions.
Not many lawyers look at this in a critical manner like I just described. They make it too easy for the courts that are somewhat friendly to make a BS “pro gun” ruling.
“Shall not be infringed.”
Did the Court of Appeals forget how to read????
It’s the fox watching the hen house. Being part of government, courts will always tend to push for as much government interest as it can bury in rulings and caveats. IMHO, too many members at bar remain on their knees in the face of it.
This terrible ruling creates a circuit split in Florida and will probably be heard by the FL supreme kourt.
There are many bad and misguided opinions above and some good ones. Mr Norman was right and the kourt was wrong. Florida needs to allow a method of unlicensed general carry. They do not. In fact, this opinion maintains that there can be a complete ban on carrying long guns, permitted or not. A privilege is not a right. A license is permission to do something that would ordinarily be illegal and a right is not illegal.
There is a way to carry in FL and other states. Go Hunting!
That is what makes this whole argument absurd. You can purchase a hunting license here in TN, and carry almost anywhere. Its the intent of the carry.
Get a hunting license and be hunting if asked. Keep in mind the the SCOTUS has ruled that Law Enforcement can not pull you over for possession of a weapon unless the officer believes that the weapon has been or will be used in the commission of a felony. States have animals that are considered varmints. All varmints are open season, most 24-7-365. Education is key.
No legislation can address every scenario. That is a fact! Let the libs attack hunting, and we shall see the end of the debate.
When will the Government require a permit to exercise the right of free speech? We the people must stand for our RIGHTS. Rights can not be taxed etc……
Being a Florida lawyer, this presents some interesting issues.
Heller was fairly clear that the mode or manner of carry in a state can be mandated to be either open, or concealed, or left unrestricted. This is more of a left-side/ right-side driving kind of governmental decision. In other settings, that would be the kind of ordinary police regulation the federal government has no role in. The problem is that the militia clause limits States’ authority over peacably armed people (= “militia,” per George Mason in the Virginia ratification debate). Congress has the power to provide for “arming” the militia (and no power granted for “disarming” them). It seems to me there is at least arguably a dormant militia power preemption, like the dormant commerce power preemption, that might prohibit State regulation that intrudes upon the domain of Congress, who has pointedly left the matter open.
Open or concealed carry is not the kind universal rule that is so necessary to public safety like left or right side driving that it must be unfailingly uniform. At the same time, driving violations are not normally criminalized (as in the Norman case) unless there is recklessness or actual damage or injury. Driving violations are ordinarily civil regulatory infractions — not crimes. That seems the more applicable Constitutional rule to analogize. After all, automobiles kill more people than even illegally used firearms, and vastly more people than lawfully carried firearms.
But driving is a privilege, not a right. So the analogy to driving breaks down– but in favor of self-protection. This is the line of argument to attack. A CW license takes several weeks to obtain (even here, and they are pretty darned efficient — I even wrote them an appreciation letter, FWIW — so UNLIKE the DMV). If one cannot lawfully carry to protect oneself at an immediate and unanticipated appreciation of danger on a given day without a license, then the right of carry for actual self-defense is, in fact, illusory. But Norman was charged with open carry. He was not charged with carrying concealed without a license. The latter would be the case to challenge. It is the licensing scheme itself (or at the very least the nature of the penalties — civil infraction versus crime) — not the carry mode — that is most open to challenge in Florida.
This decision proves my position that judges should be drug tested. Any judge, and in this case three, who say that when the US Supreme Court said that Open Carry is the right guaranteed by the Constitution and that concealed carry can be banned, what the High Court was really saying was that Open Carry could be banned, is a judge who suffers from a mental disease or defect most likely brought on by alcoholism or drug abuse.
Take enough drugs and/or alcohol or take them for long enough and the brain damage is irreparable.
http://CaliforniaRightToCarry.org
“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
How did the first ten amendments come to be included in the U.S. Constitution? They got there because they were demanded by various states-to-be. In other words, the original Constitutional convention didn’t even think of these rights. The original Constitution was rejected and that forced the inclusion of these rights. Thats all you have to know about “consent of the governed.” But one also has to consider reaching a consensus as a precondition for passing a law or constitutional amendment. That’s caused problems from the beginning.
And, with this court decision in Florida, we’re right back to facing the need for consensus on how we’re going to live in that state – with or without the court’s limitation?
I found when considering this kind of thing it’s helpful to look at other state constitutions. That’s because, many state legislatures have tried to fix the original Second Amendment by clarifying what is being protected. I have Michigan’s version which is: Sec. 6.
Every person has a right to keep and bear arms for the defense of himself and the state.
Now that’s more like it: there’s no more confusion about the reason for the right to keep and bear arms. It’s NOT just to satisfy a military need. (I think several other states have very similar or the same wording.) The reason for the change was that law makers already had observed the problem with (just) the need for a well regulated militia. But we can see we’re not done. There’s still the dispute as to whether or not we have a real need to carry openly in order to defend ourselves or the state.
We can guess what will happen because it happens every time the subject comes up. Those insisting on open carry will not be able to validate the need so they’ll revert to the “resisting the state” argument. This trashes hope of a consensus. So our main goal (a consensus) gets trashed by use of an absolutist argument.
In Michigan, there’s no such problem: open carry is most often tolerated by law enforcement and the courts. But some businesses use their right to deny access via Michigan’s trespass law. So businesses have the power to erase the right to carry openly (in shopping malls, for example). And Michigan still has school gun free zones which are enthusiastically embraced by many school authorities and even by public universities.
We are a long way from the Promised Land, my friends.
Slight correction here. No state ever rejected the Constitution. Several states ratified the constitution, while at the same time asking for changes to it. The Bill of Rights was a reaction to the demands of the several states and was proposed by Congress. The states then ratified most (but not all) of the proposed amendments.
Neither the Constitution nor the Bill of Rights grant any rights. They can’t be granted. They are natural and God-given. That, of course, does not prevent governments attempting to trample on them, even when they are clearly delineated in the Constitution.
” Because the Legislature has the right to enact laws regarding the manner in which arms can be borne,”
People have rights. Legislatures do not.
+1
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