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 news4jax.com:

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.


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