Florida's Ban on Openly Carrying Guns Is Unconstitutional, State Appeals Court Rules
A unanimous three-judge panel concluded that "no historical tradition supports" the 1987 law.
Florida is one of just four states that generally prohibit people from openly carrying firearms in public. That law, a Florida appeals court ruled on Wednesday, is inconsistent with the Second Amendment.
"The Constitution protects the right to carry arms openly for self-defense," Judge Stephanie Ray writes in a unanimous opinion from the First District Court of Appeal. "Florida's Open Carry Ban cannot be reconciled with that guarantee."
Florida Attorney General James Uthmeier welcomed the decision. "Florida's 1st District Court of Appeals just ruled that Florida's open carry ban is no longer constitutionally enforceable statewide," he wrote on X. "Our office fully supports the Court's decision. This is a big win for the Second Amendment rights of Floridians."
The case, McDaniels v. Florida, involves an activist who sought to test Florida's ban by inviting his own arrest. In July 2022, Ray notes, Stanley Victor McDaniels "stood at a major intersection in downtown Pensacola," holding a copy of the U.S. Constitution and waving at passing cars. He "had a loaded handgun tucked inside his pants using an inside-the-waistband holster. The holstered firearm was visible to anyone who passed by, but McDaniels was not threatening anyone. He had also set up a camera on a tripod to record his activity."
When police questioned him, McDaniels explained that he planned a constitutional challenge to Section 790.053 of the Florida Statutes. That provision, enacted in 1987, says "it is unlawful for any person to openly carry on or about his or her person any firearm." Violating the prohibition is a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine.
Section 790.053 lists several exceptions, including for hunters and people with concealed carry permits who "briefly and openly display" a firearm "to the ordinary sight of another person" unless it is "intentionally displayed in an angry or threatening manner, not in necessary self-defense." But those exceptions come into play only when someone is prosecuted under the law, at which point he can invoke one of them as an affirmative defense.
McDaniels had a concealed carry permit, and he did not display his handgun "in an angry or threatening manner." But he was not using the gun in "necessary self-defense," and he displayed it more than "briefly." He therefore was clearly guilty of violating the statute. But prior to his trial, he moved to dismiss the charge on Second Amendment grounds. The trial court, which ultimately convicted him and sentenced him to probation and community service, denied his motion but asked the appeals court to resolve the question of the law's constitutionality.
Before addressing that issue, Ray explains why the appeals court is not bound by the Florida Supreme Court's 2017 decision in Norman v. State, which upheld Section 790.053, deeming it "substantially related" to the state's "important interest in regulating firearms as a matter of public safety." Applying "intermediate scrutiny," the court balanced that interest against the burden imposed by the open carry ban, emphasizing that the law did not preclude self-defense, since permit holders still could carry concealed weapons.
As Ray notes, the U.S. Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen explicitly rejected such "means-end scutiny." Under Bruen, a law that impinges on conduct covered by the Second Amendment's "plain text" is constitutional only if the government can show it is "consistent with this Nation's historical tradition of firearm regulation." And since the U.S. Supreme Court's understanding of the Second Amendment is "the supreme Law of the Land," Ray says, "we are bound to follow it."
To meet the Bruen test, the government has the burden of citing historical analogs that are "relevantly similar" in motivation and scope. The closest analogs that Florida could offer were eight 19th-century laws that prohibited concealed carry—the opposite of Florida's rule. Such laws were based on the premise that carrying concealed weapons was inherently suspect and dishonorable.
Florida "has not shown that open carry and concealed carry were understood to be interchangeable," Ray writes. "To the contrary, the historical record, including the very sources the State invokes, demonstrates that the two were regarded as distinct, and that open carry was the default mode of bearing arms that preserved the core of the Second Amendment right."
In 1840, for example, the Alabama Supreme Court said "the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence." But "if the emergency is pressing," it reasoned, "there can be no necessity for concealing the weapon."
That same year, the Tennessee Supreme Court likewise upheld that state's concealed carry ban. It rejected the notion that "there can be no difference between a law prohibiting the wearing [of] concealed weapons and one prohibiting the wearing [of] them openly." To the contrary, it said, "there is a manifest distinction." In the state constitution, it noted, "the [citizens'] right to bear arms in defence of themselves is coupled with the right to bear them in defence of the State," and those weapons "must necessarily be borne openly."
In 1846, the Georgia Supreme Court rejected a complete ban on public carry, emphasizing the difference between "secretly" arming onself and doing so "openly." The latter, it said, was protected by the "natural right of self-defence" and the "constitutional right to keep and bear arms." The court concluded that "a prohibition against bearing arms openly" is "void" because it is "in conflict with the Constitution."
Upholding Louisiana's concealed carry ban in 1850, that state's Supreme Court said the law "interfered with no man's right to carry arms (to use its words) 'in full open view,' which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."
When it upheld a conviction for carrying a concealed weapon in 1867, the Florida Supreme Court said the relevant law, which expressly allowed open carry, was aimed at individuals who arm themselves "for the purpose of committing some malicious crime, or of taking some undue advantage over an unsuspecting adversary." It also noted the concern that "men in vexed assemblies or public meetings, conscious of their advantage in possessing a secret and deadly weapon, often become insulting and overbearing in their intercourse, provoking a retort or an assault, which may be considered as an excuse for using the weapon, and a deadly encounter results, which might be avoided where the parties stand on a perfect equality, and where no undue advantage is taken."
In short, Ray says, "the historical record from the relevant period shows that our Nation did not regard concealed carry and open carry as interchangeable. The right to keep and bear arms did not extend to the carrying of weapons in secret, which was regarded as the practice of the cowardly and the disreputable and as incompatible with the legitimate exercise of the right of self-defense. Open carry, by contrast, was understood to be the manner of bearing arms that gave full effect to the rights secured by the Second Amendment."
That record "makes clear that open carry was regarded as the lawful and preferred mode of bearing arms, while concealed carry was viewed as dangerous to public safety and ineffective for self-defense," Ray writes. "No historical tradition supports Florida's Open Carry Ban. To the contrary, history confirms that the right to bear arms in public necessarily includes the right to do so openly."
