In Norman v. Florida, the central issue was whether the Florida ban on the open carry of firearms violated the Second Amendment of the United States Constitution, or the weaker provision of the Florida State Constitution.
The case seems strong on its face. Open carry is specifically mentioned in the District of Columbia v Heller decision. Heller mentions it in showing that open carry of firearms has long been protected while the concealed carry of weapons has been regulated or banned since about 1830, in many jurisdictions.
The Supreme Court of Florida found the open carry of firearms was *not* protected by the Second Amendment. They then found, unsurprisingly, that the Florida Constitution does not protect the open carrying of arms, because the Florida Constitution specifically allows the state to regulate the carry of arms.
Right to Bear ArmsIt is difficult to argue that an amendment that explicitly grants the state the power to regulate the manner of bearing arms, does not give the state the power to ban the open carry of arms.
(a) 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.
The Supreme Court of Florida decision was 4 to 2 against the right to bear arms openly. They did this in two steps. First, they found that open carry outside the home was *not* a core part of the Second Amendment, and was therefore not subject to strict scrutiny. Second, they claimed to apply intermediate scrutiny, but actually applied an interest-balancing inquiry that is specifically prohibited in the Heller decision.
The Court was bolstered in this decision by several other decisions that have gradually undermined the Heller decision in other appellate courts. From the decision:
For instance, the Ninth Circuit in Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016), conducted a historical examination of the Second Amendment and, based on this historical analysis, held “that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.Several other cases in appellate courts that upheld extreme restrictions on carry outside of the home were cited. The unwillingness of the Supreme Court to take those cases has allowed the appellate courts free reign to chip away at Heller.
A strong dissent is included in the decision. The dissent rejects the notion that open carry outside the home is not a core part of the Heller decision. It shows how the majority of the justices ignore precedent and the Heller decision. The dissent argues that the Majority makes an "interest balancing" decision, which is prohibited in Heller, not an "intermediate scrutiny" decision. From the dissent:
But the majority here, while purporting to apply intermediate scrutiny, evaluates the challenged law in a manner that is not materially different from rational-basis review.The majority decision may be appealed to the 11 Circuit. It is unclear if an appeal will be attempted.
©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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10 comments:
If they do not appeal then they deserve to loose. This all goes back to the 1803 ruling by the US supreme court when the supreme court gave its self the authority to interpret. functionally increasing the power it never had. state courts only get away with this interpreting because of the Marbury v Madison case. there is no authority to interpret the laws written in the constitution. "if it is not written it does not exist" If they treat this like exactly what it is then they need to challenge on the grounds of a civil rights violation A state can not deny a federally guaranteed constitutional right. there is no definition of how to carry in the second amendment, it simply states the right to keep and bear. bear is to carry any time any where any way because it is not defined. No one has the authority to define weapon and no one has the authority to define bear. the authority is not written it does not exist. then the US supreme court has original jurisdiction. State violation to federal law and it is a constitutional issue. Trump has yet to get his appointment passed when he does a lot of these things will change. all we need is an attorney with enough brass to challenge the integrity of the supreme court.
Do we have the rulings, are they enforceable and is the supreme court the supreme court or not? according to American law and supreme court rulings if it is written then it must be enforced. all of the necessary laws are written all of the necessary rulings are a fact, does the supreme court have the integrity to enforce the laws and rulings in question or is the supreme court just another lazy useless government entity?
then ask the supreme court what authority it has that is written in the constitution to interpret law. Historical documents prove that the authority to interpret was never given. fact the supreme court unconstitutionally granted its self the authority to interpret. it is unconstitutional for government to increase its authority without a constitutional amendment.
It seems like a crystal clear constitutional amendment is in order in Florida. It needs a joint resolution from their legislature, followed by a 60% approval from the public.
Breaking News!! the interior secretary just repealed the lead bullet ban according to an MSN article. Now maybe the .22 caliber bullet supply will catch up to demand.
so IF THE STATE MALITIA IS CALLED UP EVERY MALITIA MEMBER MUST LEAVE THEIR WEAPONS AT HOME BECAUSE THEY CANT CONSEAL A LONG GUN? OR IT CAN NOT BE CARRIED OUT SIDE OF THE HOME? JUST PROVES YOU CAN BE AN IDIOT AND BE ON THE SUPREME COURT. If YOU CAN OPEN CARRY TO DEFEND THE STATE YOU CAN OPEN CARRY TO DEFEND YOURSELF.
I agree with all of your posts.
Self comes before state, that is why the bill of rights was ratified. we created a government for the very purpose of protecting our rights. the framers saw the possibility of the state getting out of control. some of the framers wanted to appoint a king and that went over like a lead balloon. George Washington refused to run for re election to prevent the office from becoming a dynasty. they created and made it difficult to change what they wrote. When the framers wrote the constitution they wrote in specific limitations to prevent the left wing concepts of big brother types. they did not want a nanny state. Government is supposed to manage the affairs of the nation not the individuals lives. The people really need to read the original documents. The framers actually wrote in what the government could and could not force you to buy. they placed a 20 dollar limit and that has yet to be changed, so how much are your ACA premiums? how much are your permits? Why do we have to buy permits to build a house? Why do we have to pay for gun safety training classes? Never point a gun at anyone unless you intend to use it to shoot them, end of safety class. Government has delegated authority. Delegated authority is that authority which we the people have but allow the government to use on our behalf. we are sovereign citizens. a sovereign is a king. that is what the castle doctrine is based on. anyone entering our castle/home without permission can be considered a threat. we may have a dead bolt instead of a draw bridge but we do not have to raise the draw bridge or use the dead bolt to deny entrance. you need permission to enter my castle. and I have a cross bow, a sword and a spear and a hundred other weapons to make that clear. Government has no right to interfere with our health care or our rights to own and carry weapons. Self defense has always been based on what you the individual chooses to carry for self defense. the supreme court has ruled that the second amendment covers everything and any anything you chose to carry. the supreme court has ruled that no body can deny you your right to self defense. that includes the state. No one is required to have a permit to exercise a guaranteed right. When government sends people out to deny your rights it is time to show them how well those weapons work. Government would not be so big if it was not forcing people to pay for things it never had the authority to require. end of rant.
It would not matter if Florida passed a constitutional Amendment. the amendment would be void under the tenth amendment. States can not amend the federal constitution. states are required to enforce the federal constitution above their own.
People really need to understand just what authority the federal government has and what the state governments have under the tenth amendment. the reason there is no defense of marriage act passed by the federal government is the word marriage does not exist in the federal constitution. the USSC ruling that says if it is not written the authority does not exist. Until the federal constitution is amended to include the word marriage the federal government has no authority to address the issue and any act passed would be unconstitutional. A state constitution must include the word marriage or any marital laws passed would be void and would fall under the un enumerated rights that fall to the people by the ninth amendment. A glaring USSC ruling error was when the state of California passed a state constitutional amendment concerning marriage and the USSC ruled it was unconstitutional. it was clearly a states rights issue the USSC had no authority to interfere in state constitutional amendments for an issue that was not in the federal constitution. I am so sick of idiots playing games with what the limits of the constitutional authority is. what really upsets me is an uninformed public that lets them get away with it.
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