By Dave Workman | Senior Editor
Attorneys representing a Florida man challenging that state’s ban on open carry have petitioned the Supreme Court of the United States (SCOTUS) for review.
The petition brief, unintentionally or otherwise, has highlighted something of a dilemma for the courts. In Florida, the state Supreme Court majority ruled that the Second Amendment does not protect 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.
Meanwhile, the U.S. Ninth Circuit Court of Appeals has ruled exactly the opposite, that the amendment does not protect concealed carry.
While the case of Dale Lee Norman v. State of Florida may not be accepted for review by the high court, it calls attention to the disparity, leaving gun rights activists wondering why SCOTUS remains reluctant to settle this question about the right to keep and bear arms outside the home. A majority of the states have state constitutional RKBA provisions, but the high court has declined a carry case, and there have been several opportunities. More than a dozen states have also adopted so-called “constitutional carry” statutes, allowing open or concealed carry without a license or permit.
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, since a right restricted to the home is not really a right at all, activists have contended.
Out in the Ninth Circuit, the problem is that if concealed carry is not protected, then open carry must be, but in California open carry has been prohibited.
This is a mess that only SCOTUS can clean up, but since 2010, the highest court in the land has steadfastly refused to hear cases challenging state carry regulations from Maryland, New Jersey and New York. The court has never explained why it will not take up any of these cases, so there is plenty of conjecture that the justices are divided, or are simply reluctant to decide a case in which they would have to define what the “right to bear” arms means and its parameters.
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 by police and 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 Supreme Court petition was filed by veteran attorney and author Stephen Halbrook of Virginia and Florida attorney Eric Friday.
