Dale Norman, a Florida man arrested for openly carrying a firearm in 2012, has petitioned the U.S. Supreme Court to overturn his misdemeanor conviction on the grounds that it infringed his right to keep and bear arms as protected by the Second Amendment to the United States Constitution.
Norman — who possessed a valid Florida Concealed Weapons License — was arrested because his otherwise legally-carried handgun became visible as he was walking down a sidewalk in Ft. Pierce. He was convicted of a second-degree misdemeanor and fined $300.
Norman appealed his conviction, but as we reported, he was slapped down by the Florida Court of Appeals in 2015, and again by a deeply divided Florida Supreme Court in 2016. Backed by Florida Open Carry, Inc., however, he’s now asking for relief from the Supreme Court.
In this age of racially conscious politics, it’s seems surprising that Norman — an African-American pushed face-down into the pavement by police officer — hasn’t gotten more attention. Indeed, Norman’s attorney — the estimable constitutional law expert Stephen Halbrook (below) — spends some time in the petition describing the racist history of gun control in America.
At the Founding, no restrictions existed on the peaceable carrying of arms either openly or concealed. The open-carry restrictions invalidated in the above cases appeared in the nineteenth century. However, slaves were prohibited from carrying arms at all, and “Blacks were routinely disarmed by Southern States after the Civil War….”
Mr. Halbrook also references the Congressional debate for ratification of the Fourteenth Amendment, which singled out 19th century Florida in particular. Much of which applies equally to all citizens in 21st century New York and California.
Florida makes it a misdemeanor for colored men to carry weapons without a license to do so from a probate judge, and the punishment of the offense is whipping and the pillory. South Carolina has the same enactments…. Cunning legislative devices are being invented in most of the States to restore slavery in fact.
I’m sure the California regulators think themselves quite cunning for their efforts to ban the so-called ‘bullet button’ rifles.
There’s also this:
A Florida enactment passed around the turn of the century making it unlawful, without a license, to carry a pistol or repeating rifle “was passed for the purpose of disarming the negro laborers” and “was never intended to be applied to the white population and in practice has never been so applied.”
Open carry has not historically had the emotional and legal baggage that came with concealed carry. I say this not as an advocate, but as a historian — laws could often be found in the 19th century banning concealed carry, but not the open carriage of firearms across the several states.
Efforts to ban open carry typically were part of an attempt to disarm disfavored communities — newly freed black slaves in particular. For that reason, the Court might consider open carry bands to be more constitutionally suspect.
When you throw in the general optics of this case in particular, and the historical analysis of racist gun control laws from Mr. Halbrook’s brief . . . well, there could be a greater chance of Supreme Court review here than in Peruta, which focused on concealed carry.
Perhaps the Court will be slightly more willing to entertain the notion of a general right to open carry. Or perhaps not. The Court has disappointed gun rights activists before.
If Peruta didn’t get cert I don’t have a lot of optimism for this one. Somebody needs to get busted OCing in FL and take that to the Supremes.
That’s what this case is about. The decision from the Florida Supreme court upholding the conviction also creates a Rule 10 split. Most courts have always held concealed carry was a privilege, so I expected SCOTUS to take that out in deciding not to grant cert.
I like to think that the Court denied cert on Peruta just to give Gorsuch a chance through his dissent to telegraph his pro-2A position, as he did. Such a communication could serve as an invitation to bring an even better and more sweeping 2A case to the Court where it would receive a warm welcome.
I’m not arguing that that’s what’s actually going on, mind you, just that I like to think that.
That… doesn’t make sense. “The Court” is made up of 9 people who don’t agree with each other. The ones that wanted to deny cert had absolutely no such motive and the ones that voter FOR cert… voted FOR it, not against it.
Peruta asked whether there was a right to bear firearms for the purpose of self-defense “in some fashion.” Although the case began in the trial court as a challenge to the Sheriff of San Diego County’s concealed carry permit criteria (only special people qualified), California enacted a complete open carry ban in all urban areas while the case was on appeal, and the question raised on appeal was broadened, since the trial court decision was explicitly predicated on the then existing right for “open unloaded” carry as being sufficient. The Ninth Circuit en banc panel intentionally ignored the question, ruling instead that there was no right to carry concealed, leaving the question of open carry unanswered. Cert was denied, Justice Thomas issuing a dissent, joined by Justice Gorsuch. while it is true that no one knows how the vote went, there is a suggestion that the four members who signed on with Scalia are no longer a bloc, the rumor being that Roberts is the waffler, and that maybe the two others of the former Heller majority would rather pass than risk losing the 2A to a liberal majority on the court. This will not change until someone dies or Justice Roberts retires–which will not be for another year.
This does not bode well for a grant in Norman, even with the clear racist roots of the Florida laws.
Nope. The potential “waffler” from the Heller/MacDonald majority is Kennedy, not Roberts.
Smart money is that while Alito and Roberts didn’t vote for cert, that was a tactical move to avoid the possibility of Kennedy joining the other side on the merits. Remember, it only takes 4 votes to grant cert.
I have to agree with you on this. The denial of cert most likely was due to the fact that the Conservative wing could not be assured of Kennedy’s stand and feared that a 5-4 loss would bring a draconian opinion from the likes of Sotomayor or Ginsberg. That said, it’s better to bide one’s time and wait out Kennedy and/or Ginsburg’s retirement or disability than risk a virtual overturning of the Second Amendment.
We’ll know for sure if Kennedy retires, is replaced by someone in the mold of Gorsuch, and 2A cases keep getting kicked to the curb anyway.
“If Peruta didn’t get cert I don’t have a lot of optimism for this one.”
Peruta kept being re-listed in the hope Kennedy would retire.
Kennedy has reportedly stated he is *considering* retirement at the mid-term election.
I see it like this – SCOTUS wouldn’t have bothered keeping Peruta indefinitely re-listed like they did if they had no intention of *potentially* granting cert. on it. Since Kennedy hasn’t officially announced retirement, SCOTUS did the smart thing and let Peruta slide until they are confident on having the votes.
I see that as very positive on the potential for a 2A public carry case being heard, WHEN IT HAS A CHANCE TO SUCCEED…
My .02 and worth every penny…
The re-listing could have been to give the dissenting justices time to write an opinion. I know the opinion wasn’t long and probably didn’t take long to write, but it probably did take a while to get to.
If the court had no interest is seeing a 2A case, would they not have simply denied cert. outright?
Agree w/TX Lawyer – that’s a big reason why cases get relisted multiple times in a row like that. I hoped Peruta was being relisted just to let Gorsuch get his feet on the ground, but that was me just mentally putting wishes over knowledge.
Disagree with Tx-lawyer. Thomas’ dissent is not much more than what he’s done before. The ostensible reason for the relists may have been “I’m not finished with the dissent,” but the realpolitik was that everyone was waiting to see if Kennedy announced retirement. Had he done so, you can be sure that Robert and Alito would swiftly changed their votes, and cert would have been granted.
Hmm.
Sounds a bit like planning your chess moves three turns out…
Here’s my question: if the objective is to get a rock solid case before a friendly court, what about the two justices definitely UNFRIENDLY to 2A cases? Surely those two would have a few moves of their own to throw a wrench in that plan? Or was voting to deny cert all they could really do?
Wow, what an airtight case. If another regressive “judge” retires or dies and is replaced by an honest judge, then national open carry could be law of the land. That would be amazing.
Time to throw a little reality into your rose colored world view. If you ever think that places like New York and Connecticut will allow that you are out of your mind. CT technically has OC but go ahead and try to do in any city in the state. They will arrest you for disturbing the peace. They proudly admit they will too. I hope you have years and a safe full of gold bars to fight the case too.
Oh, I’m sure there will be resistance, just like there was in Chicago after the decision striking down Illinois’ ban on carry. I also think pressure to legalize open carry could make places like Ca and Ny move to shall issue concealed carry with reasonable requirements. After all, guns are scary and they may want to encourage people to hide them.
The Ninth Circuit has a pure open carry case now pending in Nichols v. State of California, but as to that as well, I cannot imagine that will find that there is an unqualified right to open carry. It will simply ignore the “shall not be infringed” language and replace it with an “intermediate” scrutiny ” analysis that allows for “reasonable restrictions,” and will further conclude that a total ban of all open carry in all urban areas in the state is a “reasonable restriction in the interest of public safety.” Maybe it will even adopt the “feels” language of the Seventh Circuit in the Highland Park AR ban case (which the Supreme court also declined to review), that “the people have a right to “feel secure” and this is enough to support the ban.
Thanks for the mention but my case does not seek “an unqualified right to open carry.” Not in the district court and not on appeal. The scope of my lawsuit is very narrow which the state’s attorney representing Governor Brown and Attorney General Becerra conceded in their court filing dated April 6, 2017, which said in part:
“The AGO does not contend that Mr. Nichols’s appeal is defective because it seeks a ruling on the question of whether people not barred by law from possessing firearms have the right, under the Second Amendment, to carry firearms openly in public. The AGO has emphasized the narrowness and specificity of the question presented, but has not contended that the way that Mr. Nichols has framed his case is improper.”
The State of California bans the carrying of firearms, openly and concealed, in many places. The state bans the mere possession of firearms in places as well. And then there are places where one must have both a license to carry a concealable (but not necessarily concealed) firearm AND permission to enter those places with the firearm.
And my lawsuit does not challenge any Federal law.
If I win my appeal then a person who is not prohibited from possessing a firearm will be able to walk outside the door of his home openly carrying loaded and modern unloaded firearms for the purpose of self-defense onto his own property. He will then be able to leave his property while openly carrying firearms and walk around the block or down Main Street, CA. He will be able to drive across the state and around town with a loaded long gun in his vehicle and a loaded handgun openly carried in a belt holster.
Provided that his home is not located on a military base or school that is.
So you only want open carry except in “sensitive areas,” is that it? Well then the right you may win is worthless in urban areas because of the GFSZ Act, under both state and federal law, which prohibits the carriage of unlicensed individuals within 1000′ radius of a school. There is a case that concludes that if your yard is not fenced, it is a quasi-public area, and thus if you live within 1000′ of a school, you couldn’t walk out your front door without violating the Act. I’ve seen maps that demonstrate that it is literally impossible in many cities in California to even cross town without entering such a zone, and thus violating the law. For years, the only way to do so legally is with a CCW.
I don’t recall anything in any of your briefing suggesting that the state can appropriately license open carry (so as to avoid conflict with the GFSZ Act)–and if that concession is made, aren’t we right back to where we are with CCW licensing in almost all large urban areas? Or does another suit have to be brought–if you win–to establish that those laws are unconstitutional?
Mark N. – It seems that you have never read the briefs or operative complaint filed in my case and you certainly don’t understand how either the Federal or California Gun-Free School Zones work. Putting aside the fact that there have been only four prosecutions for violating the Federal GFSZ Act and three of those prosecutions were against people who were prohibited from possessing firearms, the State GFSZ Act of 1995 is the real obstacle and it does not apply to long guns so long as they are not carried on school property.
Both the Federal and California GFSZ Acts require a license to carry a modern handgun in a Gun-Free School Zone. Neither prohibits the carriage or discharge of a firearm on private property and neither requires a license to carry or discharge a firearm on private property.
California law prohibits the *reckless* discharge of a firearm within 1,000 feet of a K-12 public or private school unless one has a license to carry, which my lawsuit seeks to make shall issue.
I sense that you are faulting me for not directly challenging both the Federal and State of California Gun-Free School Zone Acts?
How about this? You go and file your own lawsuit and then come back and tell us how successful you were.
Sorry Charlie, your contentions are laughable. Penal code section 626.9. (b) specifically provides: “Any person who possesses a firearm in a place that the person knows, or reasonably should know, is a school zone, as defined in paragraph (1) of subdivision (e), unless it is with the written permission of the school district superintendent, his or her designee, or equivalent school authority, shall be punished as specified in subdivision (f).” To suggest that long arms are exempt from the Act is simply wrong. And to suggest that the Act only applies to “reckless discharges” of firearms is also incorrect; it specifically applies to mere possession. The only way to transport a firearm in a school zone is unloaded and in a locked container for hand guns, and according to state law with respect to long arms. (Although the Act does not specify how long guns are transported under state law, it is undeniable that they cannot be carried openly or loaded.)
As to carrying on one’s own property, the limited authority says that a gated yard or rear yard is private property, and you are free to carry there. But an ungated front yard or driveway is not (this a decision of the Appellate Dept. of the Superior Court that I would gladly agree is simply wrong, but it is what it is.) But who gives a damn about carrying on one’s own property? What we care about is carrying out in the street, and the only way to do that is to attack the GFSZ Act, because almost anywhere in any city is within a “school zone.” Heck, I live in a small town and I can’t leave my neighborhood without violating the act without a CCW. because I pass within 1000′ of at least one school no matter which way I go. So even if I have a right to bear arms, it does me little good unless the GFSZ Act is also found unconstitutional.
Nor do I have any great interest in filing a lawsuit against the Act that I am sure to lose.
Mark N. There is an old saying that it is best to remain silent and thought the fool than to speak and leave no doubt. You should think about it.
You are confusing California Penal Code section 25850, 26350 and 26400 with California Penal Code section 626.9, California’s Gun-Free School Zone Act of 1995. PC626.9 makes no mention of “public places” or public streets and makes no distinction between incorporated cities and unincorporated county territory.
The State of California does not dispute the fact that California’s Gun-Free School Zone Act does not prevent one from openly carrying a loaded long gun or modern unloaded long gun outside of an incorporated city and within 1,000 feet of a K-12 public or private school.
Had you bothered to read my briefs then you would know that the basis of my in-home challenge is that I am prohibited from stepping one inch outside the door to my home into the curtilage of my home with a loaded firearm and that prohibition is not because of either California’s or the Federal Gun Free School Zone Acts. Neither of those laws prevents me from carrying loaded, unloaded, antique, modern, handguns and long guns on my own property.
California Penal Code section 626.9 exempts long guns. “(c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances:”
“This section does not prohibit or limit the otherwise lawful transportation of any other firearm, other than a pistol, revolver, or other firearm capable of being concealed on the person, in accordance with state law”
California Penal Code section 626.9 exempts persons who have a license to carry a concealable weapon. “(5) When the person holds a valid license to carry the firearm pursuant to Chapter 4 (commencing with Section 26150) of Division 5 of Title 4 of Part 6, who is carrying that firearm in an area that is not in, or on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, but within a distance of 1,000 feet from the grounds of the public or private school.”.
I wish there was some way we could prohibit persons such as yourself from even possessing a firearm.
I confuse nothing. “Firearm” as defined in the GFSZ Act includes long guns and hand guns. They are prohibited. There is nothing ambiguous about the language. Further, one cannot look at one statute and ignore the rest. There are exceptions for transporting firearms through a GFSZ, but no more. Handguns must be unloaded and locked up in a case or your trunk. FOPA requires the same for all firearms. Penal code section 26400 requires long guns to be unloaded, and prohibits carrying such outside a motor vehicle. The exception, 24605(c) provides: “(c) When the firearm is either in a locked container or encased and it is being transported directly between places where a person is not prohibited from possessing that firearm and the course of travel shall include only those deviations between authorized locations as are reasonably necessary under the circumstances.” Which means that if you are not in a vehicle, your rifle or shotgun, must be unloaded and locked up, and cannot be generally carried, but only between “authorized locations.” All of these restrictions apply within a school zone, a statute you do not attack.
And if you’d bother to read what I wrote, there is virtually no place in most cities that is not within 1000′ of a school zone. Since most people would wish to carry a pistol and not a long arm, your lawsuit will not provide them an opportunity to do so, even if your attack on some other penal code provision succeeds. Second, and to repeat, there is no law precluding carry on one’s own property, openly or concealed, with the exception of case law which deems portions of your curtilage to be “public areas,” and therefore off limits for carry. Nor do I think that there are a whole bunch of Californians who want to go down to the local store with a rifle slung over their shoulder, loaded or unloaded.
Mark N. – The California Attorney General disagrees with your interpretation of the California Gun-Free School Zone Act of 1995. Moreover, by failing to dispute my interpretation as stated in the district court and in my statement of uncontroverted facts in the trial court, the state waived its right. Also, by not disputing my interpretation in its Answering Brief, the state has again waived any right to argue that my interpretation is wrong on appeal. Finally, the state’s attorney filed a post-briefing letter stating that there are no standing issues and that my arguments are properly formed and so even if the state had challenged my interpretation of the California Gun-Free School Zone Act on appeal, which it did not, it has affirmatively waived that challenge.
9th circuit procedural law and the Federal Rules of Appellate Procedure are binding on the court of appeals.
Your personal opinion on the law and 50 cents won’t even buy you a cup of coffee.
But feel free to continue to explain to the world why both the State of California and I got it wrong. The 9th circuit court of appeals won’t care but I am sure you will find members of the tinfoil hat brigade to support you.
If the Supreme Court were actually to plainly declare that OC was covered by 2A, and various local constabularies then thumbed their nose at it in the manner you posit, the individuals involved would be wide open to all sorts of federal lawsuits — in which no qualified immunity defense would be available, because the right at issue would be “clearly established” in the most unambiguous way possible.
Trust me, the likelihood of ringing up the local po-po for civil damages would mean that there would be plenty of test cases brought. And after a local police official gets hit personally for damages (see, e.g., the recent spate of cases involving recording the police in public), the rest will fall into line.
Having said that, until Kennedy or a member of the anti-2A bloc is replaced, we’re not likely to see a full-throated declaration regarding open carry. We might get a good result here, but I suspect the price of Kennedy’s vote will be that the pro-2A language will be qualified a-la Heller.
What I said is what the Ninth is likely to do at this point in time, unless and until the Supreme Court steps in. I do not posit that anyone will ignore a Supreme Court opinion, but it is also true that up to now, the court has ignored direct challenges to its Heller decision.
Mark N. — My comment was in response to Vhyrus, not you.
@vhyrus
I believe you are incorrect here vhyrus. CT is open carry, there is nothing technical about that.
There is also a well distributed memo from the state police to police departments explaining that open carry is legal and does not automatically constitute a public disturbance.
I occasionally open carry in CT and have not met resistance, I personally prefer concealed carry myself. I have witnessed others ocing and never saw the sirens coming after them.
I also have lived in 2 non gun friendly towns. One police officer told me outright the town isn’t big on guns so don’t expect much action on your form 1. The other town took 7 months to approve my permit in clear contravention to the law.
I don’t hold any rosey outlook about the police or them playing fair, just look at the video of the state police figuring out what to make up to charge that dui stop protester with who I also believe was ocing as all the evidence you need.
But it’s legal and it should be well known by now to be legal giving you proper recourse if the police decide they want to keep there head up their ass that day.
SCOTUS won’t strike down Heller and Heller and its progeny allow gun control laws.
Heller does allow regulation of individuals bearing firearms, but in terms of laws prohibiting felons and the mentally ill from possession, or laws forbidding the carrying of firearms in “sensitive” places like schools and government buildings. I don’t see how that would extend to a man licensed by the state and open carrying down a regular street.
Why should someone need a license to open carry, and what about the 1000′ exclusion radius for school zones?
The Court only heard evidence in HELLER and McDonald on the limited questions.
Justice Scalia did not say that other gun laws were or were not constitutional. He warned that until a particular law was challenged and ruled upon, the plethora of gun control laws were still in effect.
At some point these laws will be repealed by legislatures or ruled unconstitutional by the SCOTUS. Until then do you want to be a test case?
Of course courts don’t hear cases at random, somebody has to be a test case.
“Until then do you want to be a test case?” No. A lot of people don’t really seem to factor this point into their arguments on the law.
A statement of intent (such as: I want to make a selective-fire rifle for noncommercial purposes without getting a permit by ATF first) in the opening brief challenging a particular statute should be sufficient. Obtaining standing only through actually violating the law and possibly risking years of imprisonment is clearly a non-starter (and unnecessary).
This might be one of those cases that has far reaching implications. Anyway…
“In this age of racially conscious politics, it’s seems surprising that Norman — an African-American pushed face-down into the pavement by police officer — hasn’t gotten more attention.”
It’s not surprising at all. The victim is the right demographic chromatically, but as a legal gun owner is the wrong demographic culturo-politically, for this to receive national spotlighting by the mainstream media mafia.
Castile and the lack of an NRA response has received national attention.
But Castille was perfect for their agenda in no less than three ways
1) NRA saying nothing proves that they are white supremecists
2) Police hate the black community and that can be used to incite further anger and violence. Which the left believed would advance their agenda and positions of power in the gov, although it horribly backfired in Nov
3) They’ve been shouting that gun ownership is a danger to the public at large but now they can (falsely) claim that it is an even bigger danger to your own health
It’s literally a gun control agenda handed over on a silver platter
I’m not holding my breathe on. This one. We thought the state court would go with us. It didnt.
Carry should be made available everywhere. Preferably some form of carry that does not have taxes or fees. I don’t pay for the right to free speech, requiring such a payment would immediately be struck down in courts. Fingers crossed Trump gets two more SC seats to fill and puts in more justices like Gorsuch.
I don’t really like Trump…. but I’d take him over literally everyone else if the only thing Trump ever gets right are picks to the Supreme Court. So far he’s batting a thousand there.
Timothy,
A metric crap-ton of people have the same view … including myself, my spouse, and several friends and family. In fact is was almost the SOLE REASON that many people voted for Trump. As you stated, so far he has upheld his end of the reason for why so many people voted for him.
Me too. Trump was just about my last choice in the primaries. I’m very pleasantly surprised by his performance so far. If only he could just stop saying really stupid shit (which is probably 90% off the cuff).
Amen.
The issue in Florida is the ONLY way to carry legally is by paying for the privilege. That right there smacks of unconstitutional law. Rights protected by the Constitution do not come with fees, period. If FL wants to require a permit for concealed carry when open carry is constitutional carry then that would fly. Not in my book but maybe as the courts go. However when a right is reduced to a privilege that comes with a fee and permission slip I will ignore that part of the law. I don’t ask for or pay for rights I already have.
” Rights protected by the Constitution do not come with fees, period.”
Get a bus-load of people together and drive into Washington, D.C. and hold a protest on the plaza without a permit.
You will be arrested, and it will be held as constitutional…
People really need to study 1A law to get a good idea of what our best case scenario is going to be. Those laws might be a bs overreach, but as you pointed out, violate them and enjoy your arrest and final conviction.
You’re conflating “organizing” with individuals’ right to peaceably assemble.
Would nice to force florida to unlicensed open carry but in reality i am not optimistic ………
It s more an wet dream and shall issue open carry is hard enough to get there (anitere flores must removed) 🙁
By the way that happened in Fort Pierce FL not Ft. Myers.
Thanks for pointing that out. As a guy from “The Fort” the mistake jumped out at me.
Luckily I also have editorial ability, and I’ve corrected the oversight.
Thanks, Matt.
We need one more positive Trump appointment on the United States Supreme Court before they can straighten out Second Amendment cases.
Could be argued we need a positive appointment, and that Gorsuch was a neutral appointment because we didn’t get any progress out of him.
Once again, it’s realpolitik: it all boils down to whether Kennedy is likely to side with the pro-2A wing of the Court. If that wing (Thomas, Roberts, Alito, Gorsuch) are reasonably confident that they’ll get his vote, cert will get granted. If not, it’s a rinse and repeat of Peruta.
I’m a bit more optimistic here than I was in Peruta. Kennedy seems to be big on virtue signaling these days, and this case gives him a good opportunity to do so.
If they do accept cert, I’m hoping Thomas writes the opinion and brings the sorry history of gun control laws into the spotlight.
I’ll agree that this one has a better chance because of “but racism” logic.
The subtext in all concealed carry, open carry, or constitutional carry objections is always the same. Some of those in power are made nervous at the thought of others with less power having the right to arm themselves. Even the most “commonsense” or “reasonable” gun-control laws fundamentally exist for the purpose of disempowering otherwise free citizens. By imposing gun-control laws, powerful people via the state, seek to abridge our constitutional rights by limiting the liberty and freedom of less powerful people. There really is no better definition for gun-control.
The original Norman case was that the wind had blown his shirt up, unknown to him, exposing his gun to public view. He was not trying to make a statement about open carry. We have plenty of folks here in Florida doing that daily while fishing. In Florida, you can open carry under the authority of a fishing or hunting license. You just have to be doing one of those activities.
To be clear, not just while actually hunting/fishing/boating/hiking, but it also enables you to open carry while travelling to/from those activities. Which is why in several places we’ve organized “Open Carry Fishing Derbies”. Meet up at a known location, and walk (while open carrying) to a local fishing spot (pier, lake, etc). We require all participants to have fishing gear in-hand to keep us all legal-eagle. We usually try to coordinate with local law enforcement beforehand to prevent misunderstandings.
Given the poor quality of the petition, there is no way this case makes it even through SCOTUS’ cert pool, let alone a Justices’ conference.
The Florida Supreme Court defied 200 years of established precedent with its decision, thus creating multiple circuit splits overnight – yet attorney Halbrook never mentions this very obvious fact even once. But such a Rule 10 Split is the single most important reason why the Supreme Court – a court of review, NOT of first view – should hear a case.
Halbrook’s argument effectively comes down to “SCOTUS should grant cert because when viewed through the Heller lens, the Florida Supreme Court decided Norman wrong”. While opposition to standing High Court precedent is possibly a reason to grant cert (not as good as a split of authority, however), this argument would have then needed further explanation of the possible detrimental effects on other areas of constitutional law: In Caetano, for instance, defying Heller, the court below claimed that stun guns can be banned because they did not exist at the time of the Founding. SCOTUS vacated that ruling on appeal because had the then eight Justices let that decision stand without comment, it would have likely encouraged loose-cannon judges the country over to apply that same bizarre kind of reasoning to other protected rights as well; protections from unreasonable search and seizure do not apply to modern houses because such did not exist in the 18th century; speech via telephone or the internet is not protected under 1A because such devices did not exist back in the day, etc.
Had Dale Norman’s counsel managed to plausibly argue that the Florida Supreme Court ignoring Heller could lead to similar ramifications, the strategy of challenging the decision in question on the grounds of lack of respect for High Court precedent would have been sound.
But like that, the cert petition remains weak and confused. It’s sad that such golden opportunities like this case have to go to waste just like that.
The entirety of pages 23 to 25 of the petition have a section (E.) titled “A Long Line of Precedents by this Court and the State Courts Recognize the Core Right to Carry Arms Openly”.
And yet Halbrook does not draw the most important conclusion from this fact and explicitly state it, namely that there is an unbridgeable split of authority as deep as the Grand Canyon to resolve by the Supreme Court, and as quickly as possible at that.
What’s more, the Florida Supreme Court has not only created a Rule 10 Split with ALL federal courts of appeals and nearly ALL other state courts of last appeal on the question of open carry but also several splits on the more fundamental question of public carry (in any form). Pages 23 through 25 of the cert petition don’t even come close to underlining these vital facts.
And since the Justices cannot consider arguments which have not brought explicitly before them except through bending over backwards and playing the role of both plaintiff and judge at the same time, there is little to no chance SCOTUS’ cert pool will forward this case to the Nine’s desks (save for perhaps Justice Gorsuch’s since he allegedly has his own case selection process and does not participate in the pool). The petition does simply not meet the basic formal criteria for that to happen.
A lot of people commenting see a win on this case as resulting in unlicensed open carry. That’s a possibility. If no one played politics, voted their beliefs, and we won, then I think it would end up in a plurality opinion resulting in licensing for open carry being the lowest common denominator.
Kennedy and perhaps Roberts would rule that a state had to make an avenue available for open carry. Gorsuch, Thomas and probably Alito would rule that a state cannot ban unlicensed open carry but would probably say that it could be regulated in some manner not at issue in this case.
“The Court has disappointed gun rights activists before.” Amen Mr. Paulsen.
Unfortunately, the story is woefully lacking in detail, to the point where all I can see in the video is that a black man “may” have been the subject of arrest simply due to skin color … he did not offer any kind of resistance and the video appeared to show that he may have even submitted before the officers ordered him to get down.
What would have been nice to have included in the story was whether or not he was carrying his Florida CWL on him, and the circumstances behind the initial call (the two police cruisers didn’t show up simultaneously through coincidence, with multiple others arriving immediately thereafter).
He had received his license the same day in the mail but for some reason chose to carry his .38 openly.
Norman had the Florida CWL on his person when he was arrested as far as I remember.
People had seen him walking down the street like that and called the police who showed up on the scene fairly quickly.
The story implies his open carry was inadvertent:
“… was arrested because his otherwise legally-carried handgun became visible as he was walking down a sidewalk …”
If you have a source, please supply that.
You’re right, Florida Open Carry tells the story like that as well: “…after his otherwise lawfully carried handgun unknowingly became unconcealed while walking down the street the first time he carried outside his home with his new Florida concealed carry license.”
Source: Top Google search result for “Dale Norman Florida”.
I’ve been following this case for 2 years and I had no idea Norman is black.
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