Concealed Weapons Are the Way to Go in Florida

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By Bernie Pazanowski

Florida’s ban on openly carrying guns in the state is constitutional, the Florida Supreme Court held March 2 ( Norman v. Florida , 2017 BL 65827, Fla., No. SC15-650, 3/2/17 ).

The court assumed that the Second Amendment applies to Florida's carry laws, but Second Amendment practitioners told Bloomberg BNA the question is still open and may be addressed by the U.S. Supreme Court in the near future.

Proper Scrutiny

The Second Amendment right to bear arms for self defense is subject to intermediate scrutiny, which means it must reasonably be related to an important governmental interest, the court’s opinion by Justice Barbara J. Pariente said.

The law’s sponsor in the state legislature said that it was needed to make Florida “a safe place for individuals to live, and an excellent place for people to visit.”

But the Sunshine State’s gun-control scheme also requires it to liberally issue concealed weapon permits.

The open carry ban is a reasonable fit to protect the state’s critical interest in public safety because an individual can still protect himself by carrying a concealed weapon, the court said.

Justices Charles T. Canady and Ricky Polston argued in dissent that the open-carry ban “is unjustified on any ground that can withstand even intermediate scrutiny.”

Room for Improvement

From a policy standpoint, Florida’s gun-control law has room for improvement, Hannah Shearer, staff attorney with the Law Center to Prevent Gun Violence, San Francisco, told Bloomberg BNA.

Noting the state’s liberal policy to issue conceal-carry permits, she said a lot of people are slipping through the cracks. Those who shouldn’t be getting permits, such as convicted felons, are getting them, she said.

Even so, Shearer said the opinion is important because it shows that states can regulate firearms with public safety in mind, and the regulations will be consistent with the Second Amendment. Where guns are taken out of the home, public safety becomes that much more important, she said.

Second Amendment Applies?

The Florida Supreme Court accepted that the Second Amendment applies to the right to carry a firearm in public. That question, however, is debatable and is the subject of a petition before the U.S. Supreme Court.

In Peruta v. California, cert. filed, 85 U.S.L.W. 3363 (U.S. Jan. 24, 2017) (No. 16-894), the question is whether “the Second Amendment entitles ordinary law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.”

Whether the right to bear arms protected by the Second Amendment extends outside the home is a question left open by District of Columbia v. Heller, 554 U.S. 570 (2008), UCLA School of Law Constitutional Law Professor Adam Winkler told Bloomberg BNA. Heller established an individual’s right to have a firearm for self defense but “only involved handguns in the home,” he said.

Lower courts are “split on whether there is right to carry guns in public,” Winkler said. But the Second Amendment “refers to the right to ‘keep and bear arms,’ the most natural reading of which means a right to have and to carry arms,” he said.

Since Heller, “most courts that have considered whether the right to bear arms extends outside the home have either assumed or decided that it does,” Dan Peterson, an attorney in Fairfax, Va., who practices firearms law, told Bloomberg BNA. “Only a handful” of courts “have concluded that there is no right to bear arms outside the home,” he said.

The Second Amendment “codified a pre-existing right to self-defense,” Peterson said. When the amendment was ratified, there was no suggestion that right “was limited to the home,” he said.

Even so, “there is a long tradition of state and local regulation of who can carry and under what circumstances,” Winkler said.

Though the Supreme Court has had “several opportunities to take a public carry case,” it has declined all of them, Winkler said. “Perhaps the justices will clarify the issue in Peruta,” he added.

Eric J. Friday, Fletcher & Phillips, Jacksonville, Fla., represented the petitioner. Florida Attorney General Pamela Jo Bondi represented the state.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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