The movement to establish open carry of guns as a constitutional right, an offshoot of the Constitutional Carry movement and particularly active in Texas, took a big hit this past week in the gunshine state when the Florida 4th District Court of Appeals took up the case of Norman vs. Florida and ruled against the petitioner’s claim that denying him open carry was an abridgement of his 2nd Amendment right. What basically happened was that a Florida resident named Dale Norman was arrested in 2013 because his handgun was seen and reported to the police as he was walking down a Fort Pierce street. He was convicted of violating a Florida statute that prohibits open carry of handguns, his appeal was then handled by a group called Florida Carry, which appears to be a group of military veterans who evidently like to parade around showing off their guns.
In its unanimous opinion, the Court first noted that it was embarking on a voyage into the vast terra incognita of laws covering carrying guns outside the home, which was first acknowledged to exist in the 2008 Heller decision that recognized the Constitutional right of citizens to keep a gun only inside the home. But since the SCOTUS also recognized that the 2nd-Amendment right to private gun ownership was based primarily on the use of a gun for self-defense, it wasn’t long until the issue of whether the self-defense boundaries would be extended beyond the home also came under judicial review.
Where jurisprudence seems to be moving is towards the recognition that concealed-carry is, indeed, a Constitutional right, but that the government can also restrict or at least regulate the issuance of CCW as long as the regulations are “reasonable and do not effectively destroy the right in practice by imposing a substantial limitation” on carrying guns outside the home. And here is where the pedal meets the metal, so to speak, because what irks the pro-gun movement most of all, is the idea that government should be able to impose limitations of any kind on the ownership or use of guns by law-abiding folks.
Be that as it may, there doesn’t seem to be a judge anywhere in the United States who is willing to depart from the standard rationale for government regulation of firearms, namely (to quote the Florida 4th District) that “that the government has a substantial interest in regulating firearms as a matter of public safety.” And this ‘substantial interest’ takes the form of a near-unanimous agreement by courts to apply intermediate, rather than strict scrutiny to deciding the constitutionality of laws covering ownership and use of guns.
If the pro-gun push for fewer restrictions on guns were ever to convince the country’s jurists that gun laws should be adjudicated only through the application of strict scrutiny review, then the gun-sense movement might as well pack it up and go home. Because what strict scrutiny means is that a law can only be considered constitutional if it is narrowly tailored to achieve its result, whereas intermediate scrutiny means that the law only needs to serve accepted, general ends. If regulating gun ownership was no longer accepted as a compelling government interest unless the government could prove that every gun law achieved some specific safety result, you could kiss gun regulations goodbye.
Which is exactly what Dale Norman and his attorneys and his supporters were hoping would happen in the 4th Florida District Court of Appeals in West Palm Beach. But it didn’t turn out that way at all. And the reason the District Court upheld his conviction was because it found that, given Florida’s liberal issuance of concealed-carry permits, one simply couldn’t sustain the argument that Florida was in any way preventing its residents from using guns outside their homes for self-defense. Believing that you are safer because you carry a gun is one thing, waving it around in public to scare off the bad guys is something else.
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