The Volokh Conspiracy

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Second Amendment protects carrying guns outside the home, but state may require concealed carry rather than open carry


So the Florida Court of Appeal held Wednesday in Norman v. State. It concluded that the Second Amendment applies to carrying for self-defense outside the home.

After Heller I, McDonald, and [recent lower court decisions], it is clear that a total ban on the public carrying of ready-to-use handguns outside the home cannot survive a constitutional challenge under any level of scrutiny….

"A blanket prohibition on carrying [a] gun in public prevents a person from defending himself anywhere except inside his home," and as such constitutes a "substantial … curtailment of the right of armed self-defense."

And the court rejected the view of some federal circuits (the Second, Third, and Fourth) that highly restrictive licensing schemes, under which applicants must satisfy law enforcement that they have particular self-defense needs (rather than just the normal self-defense needs of the public at large) before they can get a license:

We stress, however, that the Legislature's discretion in this area is not limitless. For example, the [Second Circuit] in Kachalsky upheld New York's prohibitive licensing scheme using an intermediate scrutiny analysis that gave too much deference to the legislature, without considering the fact that the licensing scheme in question rendered the right to bear arms outside the home virtually non-existent…. A right is essentially "destroyed [if the] exercise of [that] right is limited to a few people, in a few places, at a few times." Peruta, 742 F.3d at 1170 [that's the Ninth Circuit decision striking down California's restrictive licensing regime -EV]. The degree of legislative deference exhibited in cases such as Woollard [Fourth Circuit], Drake [Third Circuit] and Kachalsky [Second Circuit] goes too far, and would serve to validate expansive restrictions inconsistent with those rights guaranteed by the Second Amendment and the Florida Constitution.

But the court upheld the restrictions on open carry, precisely because Florida lets law-abiding adults get licenses (relatively easily) to carry concealed:

The Legislature "has a right to prescribe a particular manner of carry, provided that it does not 'cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.'" The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

Therefore, under Heller, the Florida Legislature could properly choose to regulate either the open or concealed carrying of firearms, or choose to regulate neither open nor concealed carry. What is clear is that the state cannot enact legislation that effectively prohibits both open and concealed carry at the same time. Any complete prohibition on public carry would "violate[] the Second Amendment and analogous state constitutional provisions."

The court also held the same under the Florida Constitution, which specifically authorizes regulations of "the manner of bearing arms": "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law."

I think the court was quite right to recognize a right to carry guns in public for self-defense (for more on this, see here). I also think the court was right to allow the state to limit such carrying to concealed carrying, precisely because such carrying doesn't substantially interfere with the ability to defend oneself. (That's especially so because, if a situation arises in which a person reasonably perceives an imminent threat of death or serious bodily injury, the person would be free then to display the gun in self-defense, as well as use it, if necessary.) For more on such matters, see my Implementing the Right to Keep and Bear Arms article.

The court might be faulted for the way it reached the result: It purported to apply "intermediate scrutiny" in upholding the open carry ban, but it applied it in such a deferential way that it wasn't really offering much scrutiny at all. But it applied this deferential scrutiny only once it concluded that the restriction didn't materially interfere with the right to carry for self-defense in public. If the restriction did materially interfere with that right (e.g., because it didn't provide for shall-issue licenses for concealed carry), then it would have rightly been invalidated.

(Note that the opinion doesn't discuss restrictions on carrying in particular places, such as government buildings, or on carrying on private property where the property owner prohibits such carrying. It is talking about broad restrictions on all or most carrying of guns outside the home.)