On Thursday, the Florida Supreme Court upheld a state law prohibiting the open carry of firearms in public, ruling that the Second Amendment does not protect the practice. The decision is yet another legal setback in gun advocates’ recent struggle to persuade the courts to strike down a wide range of firearms restrictions as unconstitutional. Like many other state and federal courts throughout the country, the Florida Supreme Court concluded that the Second Amendment cannot be read to bar states from regulating the manner in which firearms are kept and used.
As the court noted at the outset, virtually any adult who has no physical impairment or felony record can carry a gun in public in Florida. The weapon, however, must be concealed. After getting arrested and charged for openly carrying a .38 caliber handgun while walking alongside U.S. Highway 1, Dale Lee Norman challenged this concealment requirement, arguing that the Second Amendment protects the right to openly carry firearms. He insisted that the Supreme Court’s decisions in D.C. v. Heller and McDonald v. Chicago, which created an individual right to keep a handgun in the home for self-defense, also grant him the right to walk around in public with his firearm in plain view.
To evaluate Norman’s claim, the court used the analysis deployed by virtually every federal circuit court to consider Second Amendment challenges. First, it asked whether the law “burdens conduct protected by the Second Amendment based on a historical understanding of [its] scope,” or whether it falls into a “historically unprotected … category of prohibitions.” The court found that the law did not fall into a historically unprotected category and instead implicated the “central component” of the Second Amendment—“the right to self-defense.”
The court then asked whether the open carry ban was “so close to the ‘core’ of this right as to prevent people from defending themselves.” (Such laws, it asserted, are unconstitutional under Heller and McDonald.) Because Florida law regulates “only how firearms are borne in public” and still permits concealed carry as well as home defense, the court held that the open carry ban “does not severely burden” the right to self-defense.
Thus, the court found that the Florida law was not presumptively constitutional, and instead subjected it to intermediate scrutiny, asking whether it was “substantially related to an important governmental objective.” From there, the court easily concluded that the law passed constitutional muster. The state’s “interest ensuring public safety by reducing firearm-related crime,” the court wrote, is “undoubtedly critically important.” And the open carry ban “substantially relates” to this purpose because it helps to prevent “deranged persons and criminals” from grabbing an openly carried firearm and using it for malign purposes.
To my mind, this analysis is weak, as it overstates the scope of the Second Amendment from the start. The court’s answer to the threshold question—whether the open carry ban burdens historically protected Second Amendment conduct—is incorrect. There is no deeply rooted history of permissive open carry laws in the United States, and open carry bans should therefore be presumed to be constitutional. The dissenters, who believe open carry laws do have historical support, cite two antebellum state supreme court decisions affirming “the right to openly carry in public.” But as the majority noted, quoting an influential law review article, “[t]he notion of a strong tradition of a right to carry outside of the home rests on a set of historical myths and a highly selective reading of the evidence. The only persuasive evidence for a strong tradition of permissive open carry is limited to the slave South.”
That’s a critical caveat, because the “tradition” that supposedly establishes historical precedent for open carry was, in fact, part of the Southern slavery regime. White Southerners openly carried weapons to subdue, threaten, and punish rebellious or insubordinate slaves, and the law protected their right to do so as part of a legal system designed to suppress nonwhites. Obviously, this regime no longer exists; it was abolished by the 13th and 14th amendments. And in 2010’s McDonald decision, the Supreme Court explained that the Reconstruction Congress wrote the 14th Amendment with the intent to apply the Second Amendment against the states—in an effort to protect newly freed slaves’ right to self-defense against violent white Southerners. It thus stands to reason that pre-14th Amendment case law meant to safeguard the subjugation of slaves has no place in the analysis of modern state gun regulations.
Had the Florida Supreme Court simply found, as a threshold matter, that the state’s open carry ban did not burden historically protected Second Amendment conduct, it could’ve ended its inquiry there. Holding as much would’ve spared the majority from having to engage in a rather unconvincing intermediate scrutiny review. As the U.S. Court of Appeals for the 4th Circuit recently noted, firearm restrictions that fall outside historical protections for the right to bear arms are presumptively constitutional. Open carry has no firm tradition in our legal history, outside of two antebellum decisions designed to perpetuate the slave regime; that should be enough to justify the legality of open carry bans.
Still, in spite of these flaws, Thursday’s decision is undoubtedly a major defeat for gun rights activists. It arrives just weeks after a 4th Circuit decision holding that the Second Amendment does not protect assault weapons, and less than a year after the 9th Circuit found that there is no constitutional right to concealed carry, either. (That practice, too, has been widely banned since the nation’s founding.) Because the Supreme Court clearly has little appetite to expand Heller and McDonald, these decisions will probably stand as the last word on the subject for now. And gun safety advocates can rest easy knowing that whatever few legislative achievements they can eke out in this political environment are unlikely to be toppled by the judiciary.