Norman v. State

Decision Date18 February 2015
Docket NumberNo. 4D12–3525.,4D12–3525.
Citation159 So.3d 205
PartiesDale NORMAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Eric J. Friday of Fletcher & Phillips, Jacksonville, and Ashley N. Minton of Fender & Minton, P.A., Fort Pierce, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Celia Terenzio, Bureau Chief, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.



The Second Amendment of the Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. The Supreme Court has determined that this text confers “an individual right to keep and bear arms.” Dist. of Columbia v. Heller (Heller I ), 554 U.S. 570, 577, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). However, the Court in Heller I did not define the full extent of the right to bear arms. Id. at 626, 128 S.Ct. 2783 (stating that we do not undertake an exhaustive historical analysis ... of the full scope of the Second Amendment). We are now being asked to venture into this “vast terra incognita1 of Second Amendment jurisprudence to answer a question of first impression, specifically, whether the Second Amendment forbids the State of Florida from prohibiting the open carry of firearms while permitting the concealed carry of weapons under a licensing scheme.

Dale Norman (Defendant) was arrested while openly carrying a firearm. Video taken before his arrest showed that the gun was completely exposed to public view, in its holster, and not covered by Defendant's shirt. Defendant was subsequently charged with Open Carrying of a Weapon (a firearm) in violation of section 790.053, Florida Statutes (2012). The trial court initially reserved ruling on Defendant's motions to dismiss, and following a jury trial Defendant was found guilty of this charge. The county court considered Defendant's motions challenging the statute's constitutionality, and although the court ultimately denied these motions, it certified three questions of great public importance to this court:

I. Is Florida's statutory scheme related to the open carry of firearms constitutional?
II. Do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry, or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting himself or herself in the manner allowed?
III. Does the recent “brief and open display” exception unconstitutionally infect the open carry law by its vagueness?

Based on the reasons set forth below, we answer the first question by holding that section 790.053, which generally prohibits the open carrying of firearms, is constitutional. We answer the second question by holding that exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry. Regarding the third question, we find no need to address whether the “brief and open display” exception unconstitutionally infects the open carry law by its vagueness because under the facts of the case this exception did not apply to Defendant. Therefore, we affirm the trial court's rulings.

I. The Constitutionality of Florida's Statutory Scheme Related to the Open Carry of Firearms

Defendant challenges section 790.053 by claiming it unconstitutionally infringes on his Second Amendment rights by prohibiting “the carry of firearms that are unconcealed even for those people to whom the state has issued a license to carry a concealed weapon or firearm.” In other words, Defendant asserts that he has a constitutionally protected right to “keep and bear Arms,” U.S. Const. Amend. II, that includes the ability to openly carry a gun outside the home for self-defense without the need for a permit. The constitutional validity of a law is a legal issue subject to de novo review by this court. See Scott v. Williams, 107 So.3d 379, 384 (Fla.2013). To answer the questions certified to this court, we apply a two-step analysis.2

First, we determine “whether the challenged law burdens conduct protected by the Second Amendment based on a historical understanding of the scope of the [Second Amendment] right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected.” Jackson, 746 F.3d at 960 (alteration in original) (citations omitted) (internal quotation marks omitted). To answer this question, we ask whether the regulation is one of the presumptively lawful regulatory measures identified in Heller [I ], or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.” Id. (citations omitted) (internal quotation marks omitted). If the provision is not “within the historical scope of the Second Amendment,” id., then it is constitutional. See id.;see also Nat'l Rifle Ass'n, 700 F.3d at 195. If it is within the scope, we must proceed to the second step of the analysis.

At step two, we must “determine the appropriate level of scrutiny” to apply to the provision at issue. Jackson, 746 F.3d at 960. To this end, we look at (1) ‘how close the law comes to the core of the Second Amendment right [of self-defense] and (2) ‘the severity of the law's burden on the right.’ Id. at 960–61 (quoting Chovan, 735 F.3d at 1138 ). Moreover, in applying step two, we remain mindful that [a] law that imposes such a severe restriction on the core right of self-defense that it ‘amounts to a destruction of the [Second Amendment] right,’ is unconstitutional under any level of scrutiny.” Id. at 961 (alteration in original) (quoting Heller I, 554 U.S. at 629, 128 S.Ct. 2783 ).

a. Right to Carry Outside the Home

Under the two-step process outlined above, we must determine at the outset whether the activity under review, in this case, a citizen's ability to carry a firearm outside the home for the purpose of self-defense, falls within the scope of the Second Amendment right to “keep and bear arms.” See, e.g., id. at 960. In light of recent pronouncements from the U.S. Supreme Court, this question is easily answered.

In Heller I, the Court held that the Second Amendment protected the possession of guns in the home for self-defense, thus striking down the District of Columbia's handgun ban. 554 U.S. at 635, 128 S.Ct. 2783. In the opinion of the Court, Justice Scalia wrote: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id. at 595, 128 S.Ct. 2783. After consulting the text's historical background and the public's general understanding of the provision, the Court concluded that the Second Amendment codified a preexisting, individual right to keep and bear arms, recognizing that the central component of the right” was self-defense. See id. at 592, 599, 128 S.Ct. 2783.

The Court concluded that an exhaustive historical analysis of the full scope of the Second Amendment was unnecessary to decide the case. Id. at 626–27, 128 S.Ct. 2783. It also noted that there was no reason to specify for future cases which burdens on the Second Amendment right triggered certain standards of review, or whether a tiered-scrutiny approach was even appropriate in the first place. See id. at 628–29, 128 S.Ct. 2783. By any measure, the Court found that the District of Columbia's prohibition overreached. Id. at 634, 128 S.Ct. 2783 (stating that [t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon”).

Two years later, in McDonald v. City of Chicago, Ill., the Supreme Court examined a handgun ban enacted by the City of Chicago. 561 U.S. 742, 750–51, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The question presented in that case was whether a state government was subject to the strictures of the Second Amendment. Id. The Court struck down Chicago's handgun ban, concluding that the Second Amendment imposed restrictions not only on the federal government but, under the Fourteenth Amendment, the states as well. Id. at 791, 130 S.Ct. 3020.

Last year, in Peruta v. County of San Diego, the Ninth Circuit noted that [t]he Second Amendment secures the right not only to ‘keep’ arms but also to ‘bear’ them.” 742 F.3d at 1151. As the Supreme Court explained in Heller I, [a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’ 554 U.S. at 584, 128 S.Ct. 2783. Based on its historical review, the Supreme Court found that the Second Amendment secures an individual right to carry arms in case of confrontation, including the general right to carry a weapon outside the home for self-defense. Id. at 584–92, 128 S.Ct. 2783. Furthermore, as the court in Peruta correctly pointed out, in light of the Heller I decision, “the Second Amendment's original meaning is now settled in at least two relevant respects.

First, Heller [I ] clarifies that the keeping and bearing of arms is, and has always been, an individual right. Second, the right is, and has always been, oriented to the end of self-defense.” 742 F.3d at 1155 (citations omitted).

Nothing in the plain text of the Second Amendment limits the right to bear arms to the home, even if subject to traditional restrictions. Those courts that have recently considered this issue have held that the right to bear arms does encompass the right to carry a gun outside the home. See id. at 1167 (concluding that “the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense”); Woollard, 712 F.3d at 876 (assuming that the Heller [I ] right exists outside the home”); Drake v. Filko, 724 F.3d 426, 431 (3d...

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