Justice Barbara Pariente of the Florida Supreme Court.
Justice Barbara Pariente of the Florida Supreme Court. (Photo: Diego M. Radzinschi/ALM)

The Florida Supreme Court’s lengthy opinion in the case of Dale Norman v. State drew scant media attention. After all, a four-justice majority was endorsing a 30-year-old statute that keeps most people from flaunting guns in the open.

Nothing flashy here. But there’s another way of looking at the court’s March 2 ruling, which must have cheered the gun-control crowd and vexed gun lovers. Just as politicians are removing obstacles to gun ownership and display, the decision adds to a national chorus of judges calling for regulation.

The National Rifle Association “and its allies have tried in case after case to get a ruling saying there’s a broad constitutional right to carry guns in public, and thus far every attempt has failed,” Adam Skaggs said. Skaggs, who worked on the Norman case for former New York Mayor Michael Bloomberg’s Everytown for Gun Safety amicus, recently moved to the Law Center to Prevent Gun Violence, where he’s litigation director.

With six federal appellate courts agreeing on the key issue, there’s not even a conflict to attract U.S. Supreme Court review, Skaggs said.

“The Supreme Court has just reiterated that the Second Amendment doesn’t give you a right to carry guns openly in full view on public streets, so now the NRA will ask the Florida Legislature to give Floridians that right,” Skaggs said. “That’s the next wave of their [national] agenda.”

State Sen. Greg Steube’s open-carry legalization bill was on the Judiciary Committee’s agenda on the first day of the legislative session Tuesday.

Changes In Attitudes

Gun-rights forces have the upper hand in a state rattled by the mass shootings at Orlando’s Pulse nightclub and the Fort Lauderdale airport. House Speaker Richard Corcoran, R-Land O’ Lakes, has embraced proposals to allow concealed-gun carriers to bring firearms to college campuses, airports and government meetings.

“I support it all,” Corcoran said, according to the News Service of Florida. “Until someone can show me one stinking fact, statistic that says this is worse than the current situation, I absolutely am supportive of it.”

A dearth of information about why legislators passed the open-carry ban three decades ago invites challenges to its bona fides. At the June 8 oral argument in the Norman case, Justice Charles Canady demanded to know, “What’s the public purpose behind the ban?”

Assistant Attorney General Heidi Bettendorf had nothing to offer in reply except, “It was a policy decision of the Legislature.” The statute’s legislative history, which would normally lay out the reasoning behind its adoption, is a blank page.

The state’s briefs proffered public safety motives that may have persuaded the Legislature to pass the ban in 1987. But Canady dismissed them as speculative and “feeble” in his March 2 dissent. “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,” he wrote.

As recently as a generation ago, Skaggs said the conventional wisdom favored restrictions on civilians with guns in public. No one saw a need “to compile a detailed factual record in contemplation of future litigation.”

He said the thinking used to go something like this: “Why do we need to trot out studies when common sense tells us that a bunch of people carrying guns at the mall is going to be dangerous?”

Much has changed. Skaggs noted it’s now legal in all 50 states to bear a concealed firearm.

Alabama Standard

The NRA’s strategy of fighting any and all regulation of firearm ownership and display played out in the Norman case, where the plaintiff was represented by Eric Friday, the NRA’s point person in Florida.

Norman had a concealed-carry permit for his .38-caliber pistol. The problem was he wore his holstered accessory with a shorts-and-tank-top ensemble, making it clearly visible as he walked along Federal Highway in Fort Pierce. Alarmed passersby called the police, a video captured the scene, and Norman was convicted of a misdemeanor count of violating the open-carry ban and fined $300.

Florida is a NRA litigation target because it’s one of only a handful of states that vigorously limit the open display of firearms. The group’s argument as expressed by Florida Carry is that since the state’s licensing system allows concealed carry, it must also allow open carry, arguing there’s no real distinction between the two. The Second Amendment, as interpreted in the U.S. Supreme Court’s 2008 District of Columbia v. Heller ruling, demands no less, according to the NRA.

The Fourth District Court of Appeal, followed by the Florida Supreme Court, rejected that logic in the Norman case. The judges reasoned that because state rules allow the option of concealed carry, it’s permissible to ban open carry.

“Florida’s licensing scheme is not unduly restrictive and is consistent with the valid use of its police powers and the dictates of the Constitution to promote safety for both the firearm carrier and the community at large,” Fourth District Judge Mark Klingensmith wrote for a unanimous panel in 2015.

Friday’s assertion that the Second Amendment guarantees the right to openly carry firearms generated little enthusiasm. Justices Barbara Pariente and Peggy Quince derided the “Wild West” atmosphere associated with the unlimited exercise of the right to bear arms.

And Friday could not have appreciated Pariente’s response when he touted the more liberal gun laws in Alabama and Georgia.

She said, “Anytime you’re trying to compare Florida to Alabama or Georgia, I know we’re in trouble.”

DALE NORMAN, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Case No.: SC15-650

Date: March 2, 2017

Case type: Second Amendment

Court: Florida Supreme Court

Author of opinion: Justice Barbara Pariente

Lawyer for petitioner: Eric Friday, Fletcher & Phillips, Jacksonville

Lawyers for respondent: Attorney General Pam Bondi, Tallahassee, and Assistant Attorneys General Celia Terenzio and Heidi Bettendorf, West Palm Beach

Panel: Pariente with Chief Justice Jorge Labarga and Justices Peggy Quince and Fred Lewis; Justice Charles Canady, dissenting, with Justice Ricky Polston; Justice Alan Lawson did not participate

Originating court: Fourth District Court of Appeal