Wednesday, July 12, 2017

Florida Open Carry Case Appealed to U.S. Supreme Court

The Dale Norman open carry case in Florida has been appealed to the U.S. Supreme Court. Most cases that are appealed to the Supreme Court are refused.

The case started back in 2012, when Dale Lee Norman walked down the street with his pistol showing.  He had recently obtained his concealed carry permit, and did not realize that his firearm was completely exposed.

He was convicted of the open carry of a firearm.  His case was appealed to the 4th Circuit court of appeals.   The state Advocate General fought very hard to keep the case from being appealed.  The case made it all the way to the Florida Supreme Court which ruled against Norman, 4-2, in a mixed decision. From
The petition to the U.S. Supreme Court came slightly more than four months after the Florida Supreme Court, in a 4-2 decision, upheld the longstanding law. Monday's 35-page petition contends the law violates the Second Amendment and conflicts with U.S. Supreme Court rulings about gun rights.

“The issue is whether a prohibition on peaceably and openly carrying a lawfully-owned handgun infringes on `the right of the people to . . . bear arms' protected by the Second Amendment to the United States Constitution,” said the petition, posted on the website of the group Florida Carry, which has helped represent Dale Norman, the man arrested in St. Lucie County.
The case was decided on the controversial basis of "intermediate scrutiny". 

The lowest form of scrutiny of law by federal courts is "rational scrutiny" virtually all laws are held to be Constitutional under that basis. The only requirement under "rational scrutiny" is that the legislature could have believed the law had some rational purpose.

In U.S. v. Heller, the Supreme Court held that mere "rational basis" could not be used as the level of scrutiny in basic Second Amendment cases. Some appeals courts have bypassed that prohibition by calling their level of scrutiny "intermediate scrutiny". In practice, "intermediate scrutiny" is "rational scrutiny" with a different label.  Those courts have used "intermediate scrutiny" to deny Second Amendment rights to defendants. That is what the Supreme Court of Florida appears to have done. From the petition for ceritorari:

Florida law provides for licenses to carry handguns concealed, but prohibits carrying firearms openly. Petitioner, who had such license, was convicted of openly carrying a firearm on a public street. The majority of the Florida Supreme Court upheld the ban under intermediate scrutiny based on conjecture by counsel about why the legislature may have banned open carry. 
The issue is whether a prohibition on peaceably and openly carrying a lawfully-owned handgun infringes on “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution. That issue also involves the extent to which a restriction on a constitutional right may be upheld, under a proper standard of review, on the basis of a post hoc argument of counsel with no foundation in the legislative or factual record.
Very few cases that petition for ceritorari are accepted by the Supreme Court. This case joins the ranks of several others that deal with the Second Amendment right to carry arms outside of the home. At some point, the Supreme Court will need to deal with the issue.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Anonymous said...

This case is exactly why I have posted so many times on the right to carry, pointing out all of the existing supreme court rulings for the basis of my postings. I cant see how it is possible the US Supreme Court to rule against the defendant. A case based on the tenth amendment Gibbons v Ogden 1824 "when a state law and a federal law are in conflict the federal law is supreme" there is nothing physically written in the US constitution that permits any state to amend the US constitution. Other supreme court rulings" a state can not turn a right into a privilege by requiring a tax, license or permit to exercise a right. Physically Written in the constitution "A state can not tax a person from another state". More US supreme Court rulings, " No one can deny a citizen of their constitutionally protected rights" "No person can be required to have a job" if you can not be required to have a job you can not be required to have any money. "all laws must be fair and equally applied" "states are required to enforce the federal constitution above their own". No state has the authority to amend the federal constitution. these last two are proof that states are required to enforce the 26 words of the second amendment as written, without any qualifiers. States can not require an out of state license."your rights travel with you any where in this country" to Keep and bear is to possess and to carry , any where. since all of the words exist either in the constitution or in supreme court rulings. states have no authority to ad qualifiers to the second amendment. No age limit in the 26 words of the second amendment so states can not add one, No definition of what arms are and no authority to create a definition. States can not ad any kind of a qualifier for who, when, how , where, what or when any one can keep and bear for the purpose of self defense. If the court will stand on previous rulings and what is physically written in the constitution, getting the court to admit these are all combined together we may have a ruling for constitutional carry nation wide, No honest judicial officer could deny these rulings and written words exist. we are a nation of laws not biased judicial opinions. or blatantly unconstitutional infringing state laws.

Anonymous said...

there are only 26 words in the second amendment and they are the only words that are mandated to be enforced above all others. It is written "the constitution is the supreme law of this land" to be supreme nothing can be above it. No state law, no foreign law no political opinion and frankly if the words are written, they can not be ignored or changed so not even the US supreme court can over rule the power of the written words in the constitution. the courts authority and duty is to require compliance with what is physically written without interpretation, bias or opinion. this is when original intent is most important. holding the court to its constitutional duty. even if they disagree they are required to enforce what is written until congress changes what is written. we the people are required to ratify an amendment to change the constitution. congress can change laws and acts the people have to change the constitution for any change to be enforceable.

ExpatNJ said...

Governments understand only two concepts: Money, and Power. Let's make the Norman case about Money.

Contact the Florida State Chamber of Commerce. Let them know you will not visit Florida under any circumstances unless you are safe. THAT means you have the Right to Keep AND BEAR arms, without fear of reprisal by overzealous law-enforcement personnel, or prosecutors wanting to advance themselves politically on your back. Cite the Norman case in your communication:

Florida Chamber of Commerce
136 S Bronough St, Tallahassee, FL 32301
Phone: (850) 521-1200

It does not matter where you live; Florida receives travelers from all over the USA and the world.

Please post here any reply you receive, verbatim.

Anonymous said...

Dean, I'm wondering how much of what I write about the constitution, supreme court rulings and laws you agree with. Or do you think I am full of crap and just allow me to ramble on? I cant understand why other people that claim to be concerned with the right to keep and bear arms are not looking up this information for themselves.
Sure it took me years to put it all together, one reason why I put it here for others to learn or use so more will actually know what exists. I do not try to interpret anything, I just write what I know exists. there are so many opinions based on nothing or an extreme misunderstand of what government's duty is. the facts of the limitations on government authority it seems no one understands, has learned or remembers.