On Wednesday, June 8, the Florida Supreme Court heard oral arguments in the case, Dale Norman v. State, SC15-650.
Mr. Norman was charged with violating the Florida statute that outlaws the open carrying of firearms.
The case began on February 19, 2012, when Norman, who had just been issued his concealed carry permit days before, left his home with his gun openly carried on his right hip, believing he was exercising his constitutional right to bear arms.
A citizen spotted him and called the Fort Pierce police, who responded and arrested Norman, charging him with openly carrying a firearm instead of carrying it concealed.
A jury found him guilty of the second-degree misdemeanor. He challenged the constitutionality of the 2012 law on several grounds but the St. Lucie County Court denied his motions to dismiss the case. The trial judge also withheld adjudication of a finding of guilt and imposed a $300 fine and court costs.
Mr. Norman appealed his conviction and sentence to the Fourth District Court of Appeal and again challenged the constitutionality of the 2012 law. The 4th DCA agreed with the trial court and on February 18, 2015, upheld the constitutionality of the statute outlawing the open carrying of firearms, affirming Mr. Norman’s conviction.
He filed a motion for a rehearing en banc and the Florida State Court of Appeals denied the motion on March 30, 2015.
Mr. Norman then filed his petition with the Florida Supreme Court, asking it to review the case, which it agreed to do.
At the hearing, the Florida Supreme Court limited the questions before it to whether or not Florida’s 1987 ban on openly carrying firearms in public for the purpose of self-defense is a violation of either the Florida State Constitution or the Second Amendment to the United States Constitution.
In defending the statute, lawyers for the state argued it helps prevent inflamed tensions, sparked by the sight of a gun, that could lead to violence. The reasoning largely mirrored claims made by public safety advocates that allowing open carry would amount to a tinderbox in a state known for its family-friendly atmosphere.
Far from causing crime, however, the plaintiff’s attorney told the justices would-be criminals might think twice before acting if they saw a holstered gun in plain view. He also pushed back at claims that gun owners could themselves become targets.
“We’ve got some corollaries to that: women should not be dressed in revealing clothing because that might entice a rapist, or people should not wear expensive jewelry because that might tempt them to be stolen,” said the attorney, Eric Friday. “We don’t regulate the behavior and the conduct of law-abiding citizens based on what criminals might try to take from them.”
As the justices begin deliberating the case, their questions during Wednesday’s arguments indicate they’re sharply divided over the constitutionality of the statute. Justice Barbara Pariente, a member of the court’s liberal wing, suggested that outlawing open carry falls under the umbrella of the state’s legal regulation of firearms.
“This isn’t a ban,” Pariente said. “It’s just a ban on the method of carrying that the Legislature apparently has determined protects public safety more than people walking around like they’re in the wild west.”
If the Florida Supreme Court holds that the 1987 Open Carry ban is a violation of the Florida State Constitution, then it is unlikely to decide whether or not the state ban also violates the Second Amendment of the U.S. Constitution.
However, if the Florida Supreme Court issues a decision which holds, as the lower state court of appeals held, that states can ban firearms which are openly carried for the purpose of self-defense then the Florida high court will have issued a decision which may conflict with the United States Supreme Court decisions in District of Columbia v. Heller (2008), McDonald v. Chicago (2010), and Caetano v. Massachusetts (2016).
The U.S. Supreme Court had declined to hear three other cases filed which directly conflicted with the Heller decision because the Federal appellate court decisions in those cases did not create a “split” between the Federal circuits or a split with a state high court’s interpretation of Federal law – What is known as a SCOTUS Rule 10 split.
If, however, the Florida high court issues a decision which says that Open Carry can be banned under the Second Amendment, that decision may be a prime candidate for review by the United States Supreme Court because that decision conflicts with the Heller decision AND creates a SCOTUS Rule 10 split.
We will continue to follow this case and let you know what happens.