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Open Carry Ban Upheld Against Second Amendment Challenge

On February 18, 2015, the Fourth District Court of Appeal decided the case of Norman v. State, 2015 WL 669582 (Fla. 4th DCA 2015). The defendant in Norman was arrested and charged with the offense of open carrying of a weapon, in violation of ยง790.053, Fla. Stat. (2012). He filed a motion to dismiss, which was denied by the trial court. However, the court certified three questions to the Fourth District Court of Appeal, all of which related to the constitutionality of Florida's open carry laws. Those questions were: (1) is Florida's statutory scheme related to the open carry of firearms constitutional; (2) do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry, or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting himself or herself in the manner allowed; and (3) does the recent "brief and open display" exception unconstitutionally infect the open carry law by its vagueness?

Norman argued that Florida's open carry law unconstitutionally infringed on his Second Amendment right to keep and bear arms, because it prohibited open carry of a firearm, even for individuals who had been issued a concealed weapon license. However, while the Second Amendment has been held to confer a personal right on citizens to keep and bear arms, the court concluded that the right is not unlimited. In fact, case laws provides that regulations of Second Amendment activity are held constitutional if they are reasonable and do not impose a substantial limitation on an individual's Second Amendment rights. The court held that a logical extension of prior United States Supreme Court precedent, in the form of District of Columbia v. Heller, meant that Florida's open carry laws were presumptively lawful "so long as limitations on the right to carry outside the home are not so unduly restrictive as to destroy...the right to self defense." Id. at *5.

Next, Norman argued that Florida's open carry laws violate the Florida constitution, which provides:

The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

In rejecting this argument, the court noted that, unlike the United States Constitution, the Florida Constitution explicitly permits the manner of bearing arms to be regulated.

After reviewing the relevant case law, the court held that whether heightened scrutiny should be applied to Second Amendment questions is still unsettled. Even applying such standard, however, the court concluded that Florida's open carry laws would survive heightened scrutiny because the State's interest in public safety is compelling. Accordingly, the court upheld the trial court's order denying the defendant's motion to dismiss. Specifically, the court held 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 Second Amendment]." Id. at *11. The court also held that the defense of "brief and open display of a firearm by a person with a concealed weapon license" is merely an affirmative defense, such that the defendant has the burden of proof and the jury is free to reject the defense. This ruling is significant because, if the jury is properly instructed, but nonetheless rejects such defense, even if adequate evidence is presented in support of that defense, there is no appellate remedy available to challenge the conviction.

Given the nature of the court's ruling, this decision will not be the last word on this issue. While this decision is an important decision by the Fourth District, the issue raised remains to be determined. We look for this issue to ultimately be decided by the Florida Supreme Court and, potentially, the United States Supreme Court.

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