Attorneys representing a Florida man challenging that state’s ban on open carry have, unintentionally or otherwise, raised an interesting problem for the U.S. Supreme Court, which they have petitioned for review.
The case of Dale Lee Norman v. State of Florida may not wind up being heard by the high court but it does point to a dilemma. The Florida Supreme Court ruled against Norman, who was convicted for openly carrying a sidearm in violation of state law. The Florida court held that “the Second Amendment does not guarantee a right openly to carry a firearm in public,” according to the appeal brief.
The problem is that at the far end of the country, the U.S. Ninth Circuit Court of Appeals ruled in a case challenging California’s concealed carry permit system that the U.S. Constitution does not protect the concealed carry of a handgun. Author Frank Miniter, writing in Forbes, explained why he thinks the Ninth Circuit is all wet.
So, which is it? Under the Second Amendment, the right to keep and bear arms is protected, as affirmed by the Supreme Court in both the 2008 Heller ruling and the 2010 McDonald decision. If open carry isn’t protected, then common sense would dictate that concealed carry must be.
Out in the Ninth Circuit, the situation is reversed. Since concealed carry is not protected, then open carry must be, but that’s a problem in California where open carry has been prohibited.
This is a mess that only the U.S. Supreme Court can clean up, but since 2010, the highest court in the land has steadfastly refused to hear cases challenging state carry regulations. It is almost as though the court is reluctant to accept such a case because the justices perhaps realize there is really only one way such a case could be decided: The right to “bear” arms is exactly as stated, that citizens have the right to carry guns outside the home, whether openly or concealed.
That the Supreme Court has declined to hear such a case is baffling unless one subscribes to the notion that the justices simply do not want to hand down an inevitable ruling that could turn some state gun laws upside down. Instead, Second Amendment activists remain frustrated.
Norman, according to a summary of his case, got his license to carry in February 2012. He “left his home in Fort Pierce on foot with a .38 caliber handgun and his license. A bystander saw him walking alongside U.S. Highway 1 with his handgun holstered on his waist and not covered by clothing. Officers from the Fort Pierce Police Department, responding to a call, saw him walking down a sidewalk visibly carrying the firearm in a holster outside of his shirt.”
He was stopped, officers aimed sidearms at him, and he was arrested. Motions to dismiss the case were rejected, and he was ultimately convicted.
According to the brief, the state Supreme Court applied “intermediate scrutiny” to the case, with the majority upholding the state’s ban on open carry.
The case is supported by Florida Carry, which was honored last year as the Grassroots Group of the Year at the Gun Rights Policy Conference in Tampa.
Whether the high court accepts the case, which seems unlikely considering recent history, it reinforces arguments that eventually the court must take a carry case and put this matter to rest.
The Supreme Court petition was filed by veteran attorney and author Stephen Halbrook of Virginia and Florida attorney Eric Friday.
