The Volokh Conspiracy

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The odd argument supporting the Florida open carry ban


(Ilana Panich-Linsman for The Washington Post)

Thursday, the Florida Supreme Court upheld the state's general ban on openly carrying guns. The lead opinion acknowledged that an outright ban on carrying guns would seriously burden the right to bear arms "The core of the constitutional right to bear arms for self-defense," the court concluded, includes carrying "firearms in public where a need for self-defense exists." "'To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.'" (I call this "the lead opinion" rather than "the majority" because it seemed to have gotten only three votes out of the six justices who participated. One justice concurred in the result without joining the lead opinion or writing a separate opinion, so we don't know his reasoning; two justices dissented.)

But concealed carry of guns is generally allowed in Florida (a license is needed, but is broadly available). Therefore, the lead opinion concluded, "Florida's Open Carry Law is not so close to the 'core' of [the Second Amendment right] as to prevent people from defending themselves," given that "under Florida's permissive 'shall-issue' licensing scheme, most individuals are not prevented from carrying a firearm in public for self-defense." "Florida's permissive, shall-issue, concealed-carry licensing scheme clearly 'leave[s] open alternative channels' to exercise the right" to have guns for self-defense in public places.

The lead opinion therefore judged the limit on how arms can be carried under mere "intermediate scrutiny," and constitutional so long as it is sufficiently related to an important government interest. Yet here's the opinion's explanation of that government interest:

[S]ection 790.053 "reasonably fits" or "substantially relates" to the stated government purpose of public safety and reducing gun violence. We conclude that it does. The State, in briefing before this Court, contends that by restricting open carry, but permitting concealed carry:

[T]he Legislature has reasonably concluded that concealed carry serves the State's interests, while open carry does not. An armed attacker engaged in the commission of a crime, for example, might be more likely to target an open carrier than a concealed carrier for the simple reason that a visibly armed citizen poses a more obvious danger to the attacker than a citizen with a hidden firearm.

Before the Fourth District, the State argued that by restricting how firearms are carried in public so that they may only be carried in a concealed manner under a shall-issue licensing scheme, deranged persons and criminals would be less likely to gain control of firearms in public because concealed firearms—as opposed to openly carried firearms—could not be viewed by ordinary sight.

Norman contends that the State has not produced evidence that Florida's Open Carry Law reasonably fits the State's important government interest. However, under intermediate scrutiny review, the State is not required to produce evidence in a manner akin to strict scrutiny review….

[W]hen reviewing under intermediate scrutiny Second Amendment challenges to laws regulating the manner of how firearms are borne, "courts have traditionally been more deferential to the legislature in this area." This is especially so when considering that "[r]eliable scientific proof regarding the efficacy of prohibiting open carry is difficult to obtain."

Therefore, we agree with the Fourth District and are satisfied that the State's prohibition on openly carrying firearms in public with specified exceptions—such as authorizing the open carrying of guns to and from and during lawful recreational activities—while still permitting those guns to be carried, albeit in a concealed manner, reasonably fits the State's important government interests of public safety and reducing gun-related violence.

Really? Open carry is being banned because, by being visibly lethally armed, open carriers are putting themselves at more risk of crime? Would a reasonable person, deciding whether to openly carry a gun, think, "I probably shouldn't do that, since people will be more likely to target me because they see I have a gun"?

This strikes me as quite implausible. To be sure, we can imagine some situations in which open carry could make a person more vulnerable. Indeed, as the court points out, in some situations, an attacker "might be more likely to target an open carrier" because the "visibly armed citizen poses a more obvious danger to the attacker." In others, open-carrying by a gang member onto another gang's turf might be seen as especially provocative and might therefore lead to a shoot-out.

But those would be relatively rare instances, no? On balance, wouldn't there be many more situations where a would-be attacker would try to steer clear of a visibly armed person than where the attacker would deliberately target that person first? And given that the government interest is in preventing crime generally, the question is whether the law would on balance reduce crime, not whether it could in some rare circumstances reduce crime but in more common circumstances increase crime.

True, I know of no empirical studies one way or another. But even under "intermediate scrutiny" (as opposed to the highly deferential "rational basis" scrutiny), one should have either empirical studies or at least an inherently plausible theory, rather than mere hypothetical and unlikely speculation. And here the theory that, on balance, being visibly lethal will draw attackers rather than deterring them doesn't strike me as plausible.

Now perhaps open carry bans might be justifiable on other grounds, such as that open carry (even holstered, rather than brandished) causes law-abiding passersby to feel uneasy. The two dissenting justices discussed that theory, and here's what they had to say:

[The majority's] reasons may not be totally irrational, but they do not provide any substantial justification for the ban on open carrying. Such "speculative claims of harm to public health and safety" are "not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights." There is no substantial link between the ban and public safety, and the State's speculation is no substitute for such a link.

The suggestion that someone committing a crime "might be more likely to target an open carrier than a concealed carrier" is subject to the rejoinder that a criminal confronted with the presence of an open carrier may be more likely to leave the scene rather than face the uncertain outcome of exchanging gunfire with an armed citizen. In hostile encounters between armed individuals, the outcome is seldom certain, and even criminals can understand that fact.

Many—admittedly not all—armed criminals will give a wide berth to someone they know to be armed. Likewise, speculating about the disarming of individuals who are openly carrying firearms by "deranged persons and criminals," is a grasping-at-straws justification.

The reality is that it is highly unlikely that these feeble proffered justifications had anything to do with the adoption of the statute banning open carrying…. The ban on open carrying is best understood as the Legislature's response to the public concerns swirling around adoption of the concealed-carry law…. [T]he Legislature decided that the sacrifice of open carrying was a necessary and appropriate response to the public opposition generated by the passage of the concealed-carry law. But the legal landscape has now dramatically shifted. Heller has settled that the Second Amendment protects the right of individuals to keep and bear arms. And Heller's historical analysis points strongly to the conclusion that the individual right includes the right to carry arms openly in public.

This truth should be acknowledged: opposition to open carrying stems not from concrete public safety concerns but from the fact that many people "are (sensibly or not) made uncomfortable by the visible presence of a deadly weapon."

Of course, many people are made uncomfortable by the fact that others are permitted to keep and bear arms at all. But contemporary sensibilities cannot be the test. Such sensibilities are no more a basis for defeating the historic right to open carrying than for defeating the understanding that the Second Amendment recognizes the right of individuals to keep and bear arms.

Whether this observer unease rationale is legitimate or not is a separate matter, which I hope to discuss later. But the crime prevention rationale on which the lead opinion relied strikes me as quite weak.