Dale Norman v. State ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DALE NORMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-3525
[February 18, 2015]
Appeal from the County Court for the Nineteenth Judicial Circuit, St.
Lucie County; Cliff Barnes, Sr., Judge; L.T. Case No. 562012MM000530A.
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.
KLINGENSMITH, J.
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 (2008). However, the Court in Heller I did not define the full
extent of the right to bear arms. Id. at 626 (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 incognita”1 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.
1 “The whole matter [of the right to carry outside the home] strikes us as a vast
terra incognita that courts should enter only upon necessity and only then by
small degree.” United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011).
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
2
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.’”
2 This two-step analysis has been employed by the majority of the federal circuit
courts to consider Second Amendment challenges since the Supreme Court’s
decision in Heller I. See, e.g., Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, No. 13-1876,
2014 WL 7181334, at *7, *17 (6th Cir. Dec. 18, 2014); Jackson v. City & Cnty. of
S.F., 746 F.3d 953, 960-61 (9th Cir. 2014); Peruta v. Cnty. of San Diego, 742 F.3d
1144, 1150 (9th Cir. (2014); United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); Nat’l Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
185, 194-95 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.
2012); Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011);
Ezell v. City of Chi., 651 F.3d 684, 702-03, 704-09 (7th Cir. 2011); United States
v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella,
614 F.3d 85, 89 (3d Cir. 2010). Other courts have declined to apply this two-
part analysis. See Moore v. Madigan, 702 F.3d 933, 943 (7th Cir. 2012);
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93-94 (2d Cir. 2012); United
States v. Booker, 644 F.3d 12, 22-25 (1st Cir. 2011); United States v.
Masciandaro, 638 F.3d 458, 469-70 (4th Cir. 2011); United States v. Skoien, 614
F.3d 638, 641-42 (7th Cir. 2010); United States v. White, 593 F.3d 1199, 1205
(11th Cir. 2010); United States v. Rene E., 583 F.3d 8, 13-16 (1st Cir. 2009).
These discrepancies in analysis are discussed more fully below.
3
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).
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. 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. 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 pre-
existing, individual right to keep and bear arms, recognizing that the
“central component of the right” was self-defense. See id. at 592, 599.
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. 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. By any measure, the
Court found that the District of Columbia’s prohibition overreached. Id. at
634 (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 (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
4
Second Amendment imposed restrictions not only on the federal
government but, under the Fourteenth Amendment, the states as well. Id.
at 791.
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. 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. 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 Cir. 2013)
(stating that the “Second Amendment’s individual right to bear arms may
have some application beyond the home”); Moore, 702 F.3d at 936–42
(same); Kachalsky, 701 F.3d at 89, 96 (basing analysis on the assumption
that the Second Amendment “must have some application in the very
different context of the public possession of firearms”).
After Heller I, McDonald, and the decisions cited above, 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.” See Moore, 702 F.3d at 940; see also Fla. Carry, Inc. v. Univ. of
N. Fla., 133 So. 3d 966, 976 (Fla. 1st DCA 2013) (stating that “restricting
recreational activities is a far cry from restricting a fundamental,
constitutional right to keep and bear arms for self-defense”). As such, we
agree with the Ninth Circuit’s conclusion that “the Second Amendment
5
secures a right to carry a firearm in some fashion outside the home,” and
that this right “‘could not rationally have been limited to the home.’”
Peruta, 742 F.3d at 1153 (quoting Moore, 702 F.3d at 936).3
b. The Nature of the Infringement
Because we have held that carrying a handgun outside the home for
self-defense comes within the meaning of “bear[ing] Arms” under the
Second Amendment, we must now determine whether section 790.053
infringes on constitutionally protected conduct. See id. at 1150 (citing
Chovan, 735 F.3d 1127, 1136; Nat’l Rifle Ass’n of Am., 700 F.3d at 194;
Greeno, 679 F.3d at 518; Ezell, 651 F.3d at 701-04; United States v.
Chester (Chester II), 628 F.3d 673, 680 (4th Cir. 2010); Reese, 627 F.3d at
800-01; and Marzzarella, 614 F.3d at 89). A law that “‘under the pretence
[sic] of regulating, amounts to a destruction of the right,’” Heller I, 554 U.S.
at 629 (quoting State v. Reid, 1 Ala. 612, 616-17 (1840)), would not pass
constitutional muster “[u]nder any of the standards of scrutiny that [the
Supreme Court has] applied to enumerated constitutional rights.” Id. at
628. As the Ninth Circuit stated in Peruta, “[p]ut simply, a law that
destroys (rather than merely burdens) a right central to the Second
Amendment must be struck down.” 742 F.3d at 1167; see also Jackson,
746 F.3d at 961 (“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.”
(alteration in original) (quoting Heller I, 554 U.S. at 629)).
Our analysis in this regard requires us to consult “both text and
history” on whether Florida’s statute violates the Second Amendment by
improperly infringing on the right. Heller I, 554 U.S. at 595. While the
Court’s historical analysis in Heller I explained that the Second
Amendment conferred a personal right on citizens to keep and bear arms,
it made clear that the scope of the Second Amendment is not unlimited.
554 U.S. at 595, 626-27. It is “not a right to keep and carry any weapon
3 We recognize that some cases pre-dating Heller I and McDonald have held that
the carrying of firearms outside the home for self-defense purposes is a
privilege. Crane v. Dep’t of State, Div. of Licensing, 547 So. 2d 266, 267 (Fla. 3d
DCA 1989) (“[A] license to carry a concealed weapon or firearm is a privilege and
not a vested right.”). However, recent cases decided since Heller I and McDonald,
including Peruta, have established that the carrying of firearms outside the home
for self-defense purposes is more than a mere privilege, and is instead a right
protected under both the Second Amendment of the United States Constitution
and Article 1, Section 8 of the Florida Constitution, and thus subject to
reasonable restrictions.
6
whatsoever in any manner whatsoever and for whatever purpose.” Id. at
626.
The implementation of restrictions “does not imperil every law
regulating firearms.” McDonald, 561 U.S. at 786; accord Heller I, 554 U.S.
at 626 (“Like most rights, the right secured by the Second Amendment is
not unlimited.”). The right is subject to “traditional restrictions,” which
themselves tend “to show the scope of the right.” McDonald, 561 U.S. at
802 (Scalia, J., concurring); Nat’l Rifle Ass’n of Am., 700 F.3d at 196 (“For
now, we state that a longstanding, presumptively lawful regulatory
measure . . . would likely [burden conduct] outside the ambit of the Second
Amendment . . . .”); Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (“That some
categorical limits are proper is part of the original meaning, leaving to the
people’s elected representatives the filling in of details.”). As such, general
regulations of activity within the scope of the Second Amendment are
constitutional if they are (1) reasonable; and (2) do not effectively destroy
the right in practice by imposing a substantial limitation on its exercise.
As a result, some of these “traditional restrictions” were considered
presumptively lawful in the eyes of the Court. See Heller I, 554 U.S. at
626-27. For example, in addition to “the usual prohibitions of gun
ownership by children, felons, illegal aliens, lunatics, and in sensitive
places such as public schools, the propriety of which was not questioned
in Heller [I] . . . some states sensibly require that an applicant for a
handgun permit establish his competence in handling firearms.” Moore,
702 F.3d. at 940-41.4 The Court in Heller I also explicitly referenced the
history of the concealed carry of weapons, noting that “the majority of the
19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or
state analogues.” 554 U.S. at 626. Because the Supreme Court in Heller
I recognized that concealed-carry restrictions were “presumptively lawful
regulatory measures,” id. at 627 n.26, limitations on open-carry would
4 The Supreme Court in Heller I explained:
[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.
554 U.S. at 626-27. In the footnote accompanying this passage, the Court noted
that this was not intended to be an exhaustive list of the limits to the Second
Amendment. Id. at 627 n.26.
7
also be presumptively lawful by logical extension so long as limitations on
the right to carry outside the home are not so unduly restrictive as to
destroy “the central component” of the right; namely, the right to self-
defense. Id. at 599.
c. Florida Constitution and Statutes
If a restriction or limitation on carrying concealed weapons can pass
constitutional review under the Second Amendment, we must also
consider whether those restrictions imposed by the Florida Statutes violate
Florida’s own state constitutional guarantee.
In Florida, the constitutional right of the people to keep and bear arms
in defense of themselves dates to the 1838 Florida Constitution. Fla.
Carry, Inc., 133 So. 3d at 982-83. Florida’s constitutional article is not a
mirror image of the federal. Comparing the language found in the Second
Amendment with that in the Florida Constitution, it appears that the right
of citizens in this state to keep and bear arms was always intended to be
an individual right, and never a collective right existing only in the context
of militia service. Compare Art. I, § 21, Fla. Const. of 1838, (granting the
“right to keep and to bear arms, for their common defense.”), with U.S.
Const. Amend. II (“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.”). This court has previously made it clear that “the right of the
people to keep and bear arms in defense of themselves” means that each
person has the right to keep and bear arms in defense of himself,
individually. See Alexander v. State, 450 So. 2d 1212, 1214 (Fla. 4th DCA
1984).
The Florida Legislature’s authority to regulate the manner in which
citizens can exercise their right to bear arms derives as much from the
Florida Constitution as it does from the Second Amendment. On this
point, the Florida Constitution states:
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.
Art. I, § 8(a), Fla. Const. (emphasis added). A key difference between the
state and federal provisions is that the Florida Constitution, unlike the
U.S. Constitution, explicitly states that the manner in which guns are
borne can be regulated. See Rinzler v. Carson, 262 So. 2d 661, 665 (Fla.
1972) (stating that “althogh [sic] the Legislature may not entirely prohibit
8
the right of the people to keep and bear arms, it can determine that certain
arms or weapons may not be kept or borne by the citizen. We have
specifically held that the Legislature can regulate the use and the manner
of bearing certain specific weapons.”). In fact, no controlling authority has
been presented to this court for the proposition that the Legislature may
not impose some restrictions and conditions on either the method or
manner that lawful arms may be carried outside the home. In fact, the
plain wording of the Florida Constitution provides explicit support for the
State’s position that it may regulate the open carry of firearms.
In enacting section 790.25(1), Florida Statutes, the Legislature
enunciated a “Declaration of Policy” with regard to the “Lawful ownership,
possession, and use of firearms and other weapons:”
The Legislature finds as a matter of public policy and fact that
it is necessary to promote firearms safety and to curb and
prevent the use of firearms and other weapons in crime and
by incompetent persons without prohibiting the lawful use in
defense of life, home, and property, and the use by United
States or state military organizations, and as otherwise now
authorized by law, including the right to use and own firearms
for target practice and marksmanship on target practice
ranges or other lawful places, and lawful hunting and other
lawful purposes.
§ 790.25(1), Fla. Stat. (2012). Section 790.25(4) addresses the
construction to be given chapter 790, and provides in part as follows:
This act shall be liberally construed to carry out the
declaration of policy herein and in favor of the constitutional
right to keep and bear arms for lawful purposes. This act is
supplemental and additional to existing rights to bear arms
now guaranteed by law and decisions of the courts of Florida,
and nothing herein shall impair or diminish any of such
rights.
§ 790.25(4), Fla. Stat. (2012).
As part of chapter 790, the Florida legislature also enacted the statute
in question, section 790.053. This statute prohibits the open carrying of
loaded or unloaded handguns in most public areas except under limited
circumstances. Under section 790.053, entitled “Open carrying of
weapons,” the statute provides:
9
(1) Except as otherwise provided by law and in subsection
(2), it is unlawful for any person to openly carry on or about
his or her person any firearm or electric weapon or device. It
is not a violation of this section for a person licensed to carry
a concealed firearm as provided in s. 790.06(1), and who is
lawfully carrying a firearm in a concealed manner, to briefly
and openly display the firearm to the ordinary sight of another
person, unless the firearm is intentionally displayed in an
angry or threatening manner, not in necessary self-defense.
(2) A person may openly carry, for purposes of lawful self-
defense:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other
nonlethal electric weapon or device that is designed solely for
defensive purposes.
(3) Any person violating this section commits a
misdemeanor of the second degree, punishable as provided in
s. 775.082 or s. 775.083.
§ 790.053, Fla. Stat. (2012).
Additionally, section 790.25(3), Florida Statutes, limits the application
of section 790.053 as follows:
LAWFUL USES.—The provisions of ss. 790.053 and 790.06 do
not apply in the following instances, and, despite such
sections, it is lawful for the following persons to own, possess,
and lawfully use firearms and other weapons, ammunition,
and supplies for lawful purposes:
(a) Members of the Militia, National Guard, Florida State
Defense Force, Army, Navy, Air Force, Marine Corps, Coast
Guard, organized reserves, and other armed forces of the state
and of the United States, when on duty, when training or
preparing themselves for military duty, or while subject to
recall or mobilization;
(b) Citizens of this state subject to duty in the Armed
Forces under s. 2, Art. X of the State Constitution, under
chapters 250 and 251, and under federal laws, when on duty
or when training or preparing themselves for military duty;
(c) Persons carrying out or training for emergency
management duties under chapter 252;
(d) Sheriffs, marshals, prison or jail wardens, police
officers, Florida highway patrol officers, game wardens,
revenue officers, forest officials, special officers appointed
10
under the provisions of chapter 354, and other peace and law
enforcement officers and their deputies and assistants and
full-time paid peace officers of other states and of the Federal
Government who are carrying out official duties while in this
state;
(e) Officers or employees of the state or United States duly
authorized to carry a concealed weapon;
(f) Guards or messengers of common carriers, express
companies, armored car carriers, mail carriers, banks, and
other financial institutions, while actually employed in and
about the shipment, transportation, or delivery of any money,
treasure, bullion, bonds, or other thing of value within this
state;
(g) Regularly enrolled members of any organization duly
authorized to purchase or receive weapons from the United
States or from this state, or regularly enrolled members of
clubs organized for target, skeet, or trap shooting, while at or
going to or from shooting practice; or regularly enrolled
members of clubs organized for modern or antique firearms
collecting, while such members are at or going to or from their
collectors’ gun shows, conventions, or exhibits;
(h) A person engaged in fishing, camping, or lawful
hunting or going to or returning from a fishing, camping, or
lawful hunting expedition;
(i) A person engaged in the business of manufacturing,
repairing, or dealing in firearms, or the agent or representative
of any such person while engaged in the lawful course of such
business;
(j) A person firing weapons for testing or target practice
under safe conditions and in a safe place not prohibited by
law or going to or from such place;
(k) A person firing weapons in a safe and secure indoor
range for testing and target practice;
(l) A person traveling by private conveyance when the
weapon is securely encased or in a public conveyance when
the weapon is securely encased and not in the person’s
manual possession;
(m) A person while carrying a pistol unloaded and in a
secure wrapper, concealed or otherwise, from the place of
purchase to his or her home or place of business or to a place
of repair or back to his or her home or place of business;
(n) A person possessing arms at his or her home or place
of business;
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(o) Investigators employed by the several public defenders
of the state, while actually carrying out official duties,
provided such investigators:
1. Are employed full time;
2. Meet the official training standards for firearms
established by the Criminal Justice Standards and Training
Commission as provided in s. 943.12(5) and the requirements
of ss. 493.6108(1)(a) and 943.13(1)-(4); and
3. Are individually designated by an affidavit of consent
signed by the employing public defender and filed with the
clerk of the circuit court in the county in which the employing
public defender resides.
(p) Investigators employed by the capital collateral
regional counsel, while actually carrying out official duties,
provided such investigators:
1. Are employed full time;
2. Meet the official training standards for firearms as
established by the Criminal Justice Standards and Training
Commission as provided in s. 943.12(1) and the requirements
of ss. 493.6108(1)(a) and 943.13(1)-(4); and
3. Are individually designated by an affidavit of consent
signed by the capital collateral regional counsel and filed with
the clerk of the circuit court in the county in which the
investigator is headquartered.
§ 790.25(3), Fla. Stat. (2012). It is also a crime to carry a concealed firearm
without a license. § 790.01(2)-(3), Fla. Stat. (2012). Under chapter 790,
there is no permit available for deliberate open carry, making it illegal in
virtually all circumstances. See § 790.25(3).
In accord with the authority granted by the state constitution, Florida
adopted its “shall-issue,” permit-based concealed carry provisions in 1987,
now codified in section 790.06(2), Florida Statutes (2012). This provision
provides that the Department of Agriculture and Consumer Services is
required to issue a license when the applicant meets the following
nondiscretionary, objective criteria for issuance:
(2) The Department of Agriculture and Consumer
Services shall issue a license if the applicant:
(a) Is a resident of the United States and a citizen of the
United States or a permanent resident alien of the United
States, as determined by the United States Bureau of
Citizenship and Immigration Services, or is a consular
security official of a foreign government that maintains
12
diplomatic relations and treaties of commerce, friendship, and
navigation with the United States and is certified as such by
the foreign government and by the appropriate embassy in
this country;
(b) Is 21 years of age or older;
(c) Does not suffer from a physical infirmity which
prevents the safe handling of a weapon or firearm;
(d) Is not ineligible to possess a firearm pursuant to s.
790.23 by virtue of having been convicted of a felony;
(e) Has not been committed for the abuse of a controlled
substance or been found guilty of a crime under the provisions
of chapter 893 or similar laws of any other state relating to
controlled substances within a 3-year period immediately
preceding the date on which the application is submitted;
(f) Does not chronically and habitually use alcoholic
beverages or other substances to the extent that his or her
normal faculties are impaired. It shall be presumed that an
applicant chronically and habitually uses alcoholic beverages
or other substances to the extent that his or her normal
faculties are impaired if the applicant has been committed
under chapter 397 or under the provisions of former chapter
396 or has been convicted under s. 790.151 or has been
deemed a habitual offender under s. 856.011(3), or has had
two or more convictions under s. 316.193 or similar laws of
any other state, within the 3-year period immediately
preceding the date on which the application is submitted;
(g) Desires a legal means to carry a concealed weapon or
firearm for lawful self-defense;
(h) Demonstrates competence with a firearm by any one
of the following:
1. Completion of any hunter education or hunter safety
course approved by the Fish and Wildlife Conservation
Commission or a similar agency of another state;
2. Completion of any National Rifle Association firearms
safety or training course;
3. Completion of any firearms safety or training course
or class available to the general public offered by a law
enforcement, junior college, college, or private or public
institution or organization or firearms training school,
utilizing instructors certified by the National Rifle Association,
Criminal Justice Standards and Training Commission, or the
Department of Agriculture and Consumer Services;
4. Completion of any law enforcement firearms safety or
training course or class offered for security guards,
13
investigators, special deputies, or any division or subdivision
of law enforcement or security enforcement;
5. Presents evidence of equivalent experience with a
firearm through participation in organized shooting
competition or military service;
6. Is licensed or has been licensed to carry a firearm in
this state or a county or municipality of this state, unless such
license has been revoked for cause; or
7. Completion of any firearms training or safety course
or class conducted by a state-certified or National Rifle
Association certified firearms instructor;
A photocopy of a certificate of completion of any of the
courses or classes; or an affidavit from the instructor, school,
club, organization, or group that conducted or taught said
course or class attesting to the completion of the course or
class by the applicant; or a copy of any document which shows
completion of the course or class or evidences participation in
firearms competition shall constitute evidence of qualification
under this paragraph; any person who conducts a course
pursuant to subparagraph 2., subparagraph 3., or
subparagraph 7., or who, as an instructor, attests to the
completion of such courses, must maintain records certifying
that he or she observed the student safely handle and
discharge the firearm;
(i) Has not been adjudicated an incapacitated person
under s. 744.331, or similar laws of any other state, unless 5
years have elapsed since the applicant’s restoration to
capacity by court order;
(j) Has not been committed to a mental institution under
chapter 394, or similar laws of any other state, unless the
applicant produces a certificate from a licensed psychiatrist
that he or she has not suffered from disability for at least 5
years prior to the date of submission of the application;
(k) Has not had adjudication of guilt withheld or
imposition of sentence suspended on any felony or
misdemeanor crime of domestic violence unless 3 years have
elapsed since probation or any other conditions set by the
court have been fulfilled, or the record has been sealed or
expunged;
(l) Has not been issued an injunction that is currently in
force and effect and that restrains the applicant from
committing acts of domestic violence or acts of repeat violence;
and
14
(m) Is not prohibited from purchasing or possessing a
firearm by any other provision of Florida or federal law.
§ 790.06(2), Fla. Stat. (2012). As a “shall-issue” state, the issuance of the
concealed weapons permit is not subject to any proof of need other than a
statement by the applicant that they “[d]esire[] a legal means to carry a
concealed weapon or firearm for lawful self-defense.” Id. § 790.06(2)(g).
The Department of Agriculture has no discretion, and may not withhold a
permit from an individual based on any subjective beliefs, provided these
statutory elements are met by the applicant.
d. Comparing the Right to Bear Arms in Florida with Other States
Florida’s requirements to obtain a permit for concealed carry are not so
burdensome, or so onerous, as to make the ability to obtain a permit
illusory. Nor can it be said that these requirements, unlike those found in
other jurisdictions, make the right to carry a weapon in public a virtual
nullity.5 For example, California’s statutory requirements to obtain a
permit included the proviso that the issuing authority could impose any
“reasonable restrictions or conditions” that the issuing authority deemed
warranted, Cal. Penal Code § 26200(a) (West 2012), as well as proof that
good cause exists for the issuance of the permit. Cal. Penal Code §
26155(a) (West 2012) (proscribing the issuance of a license if it is
determined that “the person is prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm”). This type of
“good cause” permitting requirement, making the ability to lawfully carry
a weapon for self-defense outside the home subject to the caprice or whim
of the issuing agent, was recently found to impermissibly infringe on the
Second Amendment. Peruta, 742 F.3d at 1179 (“San Diego County’s ‘good
cause’ permitting requirement impermissibly infringes on the Second
Amendment right to bear arms in lawful self-defense.”).
Florida’s licensing statute does not effectively act as an exclusionary
bar to the right to bear arms in lawful self-defense outside the home. A
comparison with California and New York illustrates this point. Under the
California licensing regulations as of September 2011, there were only
5 See, e.g., N.Y. Penal Law § 400.00(1) (McKinney 2014) (providing a long list of
requirements for determining an applicant’s eligibility to be issued or to renew a
firearms license).
15
35,000 authorized permit holders6 in a population of more than 37 million
residents.7 In New York City, as of December 2010, there were 5,700
permits issued8 for a population of approximately 8 million.9 In contrast,
over two decades from 1987 to 2014, Florida issued concealed weapons
permits to more than 2.7 million people.10 As of December 2014 there
were 1,535,030 active permits issued11 in a population of over 19 million.12
No empirical evidence suggests in any way that Florida concealed carry
permits are unduly restricted to only a few people, such that a citizen’s
right to lawfully carry a firearm is illusory.
Thus, we conclude that Florida’s ban on open carry, while permitting
concealed carry, does not improperly infringe on Florida’s constitutional
guarantee, nor does it infringe on “the central component” of the Second
Amendment—the right of self-defense. Heller I, 554 U.S. at 599.
e. Constitutionality of Section 790.053
In light of Florida’s “shall-issue” permitting scheme and the relative
ease in which a law-abiding citizen may obtain a license to carry a firearm
outside the home, we now turn our attention to what level of scrutiny
should be applied to the statute.
6Crime Prevention Research Ctr., Concealed Carry Permit Holders Across the
United States 10 (2014) available at http://crimepreventionresearchcenter.org/
wp-content/uploads/2014/07/Concealed-Carry-Permit-Holders-Across-the-
United-States.pdf.
7 http://www.infoplease.com/ipa/A0004986.html (last visited Jan. 5, 2015).
8 Crime Prevention Research Ctr., supra note 6.
9 Dep’t of City Planning City of New York, http://www.nyc.gov/
html/dcp/html/census/popcur.shtml (last visited Dec. 18, 2014).
10 http://www.freshfromflorida.com/content/download/7499/118851/
cw_monthly.pdf (last visited Jan. 4, 2015).
11 http://www.freshfromflorida.com/content/download/7471/118627/Number
_of_Licensees_By_Type.pdf (last visited Jan. 4, 2015).
12U.S. Census Bureau, https://www.census.gov/newsroom/press-releases/
2014/cb14-232.html (last visited Jan. 6, 2014).
16
1. Applying Intermediate Scrutiny or Strict Scrutiny
After determining that the statute does not destroy the core right of self-
defense enshrined in the Second Amendment and Florida’s constitutional
guarantee, we are guided in our analysis by the holding in Heller I
establishing that Second Amendment challenges are no longer susceptible
to a rational-basis review. 554 U.S. at 628 n.27 (“If all that was required
to overcome the right to keep and bear arms was a rational basis, the
Second Amendment would be redundant with the separate constitutional
prohibitions on irrational laws, and would have no effect.”). Therefore, we
must decide whether to apply either intermediate scrutiny or strict
scrutiny to the statute being challenged in this case.
Intermediate scrutiny “‘require[s] (1) the government’s stated objective
to be significant, substantial, or important; and (2) a reasonable fit
between the challenged regulation and the asserted objective.’” Jackson,
746 F.3d at 965 (quoting Chovan, 735 F.3d at 1139); see also Clark v.
Jeter, 486 U.S. 456, 461 (1988) (a challenged law “must be substantially
related to an important governmental objective.”); Kwong v. Bloomberg,
723 F.3d 160, 168 (2d Cir. 2013) (stating that “a regulation that burdens
a plaintiff’s Second Amendment rights ‘passes constitutional muster
[under an intermediate scrutiny standard] if it is substantially related to
the achievement of an important governmental interest’” (quoting
Kachalsky, 701 F.3d at 96)). In contrast, strict scrutiny “requires the
Government to prove that [a challenged law] ‘furthers a compelling interest
and is narrowly tailored to achieve that interest.’” Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 340 (2010) (quoting Fed. Election Comm’n
v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007)).
The Supreme Court has indicated that there is a presumption in favor
of utilizing strict scrutiny whenever a fundamental right is involved. See,
e.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (discussing
fundamental liberties and stating that strict scrutiny applies to “rights and
liberties which are, objectively, ‘deeply rooted in this Nation’s history and
tradition.’” (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503
(1977))). However, as previously explained, section 790.053 does not
improperly infringe on the Second Amendment’s core right of self-
defense.13 As such, strict scrutiny is not necessarily the applicable test to
13 Since in McDonald the Court held that the Second Amendment is applied to
the states through the Fourteenth Amendment, 561 U.S. at 791, we note that
rights incorporated through the Fourteenth amendment have also been subjected
to tiered scrutiny by some courts. See, e.g., United States v. Carolene Prods. Co.,
304 U.S. 144, 152 n.4 (1938).
17
be used here. See Richard H. Fallon, Some Confusions About Due Process,
Judicial Review & Constitutional Remedies, 93 Colum. L. Rev. 309, 315
(1993) (stating that “[n]ot every restriction of a right classified as
fundamental incurs ‘strict’ scrutiny”); see also Bleiler v. Chief, Dover Police
Dep’t, 927 A.2d 1216, 1221 (2007). “Historically, intermediate scrutiny
has been applied to content-neutral restrictions that place an incidental
burden on” a constitutional right. Shew v. Malloy, 994 F. Supp. 2d 234,
246 (D. Conn. 2014) (citing United States v. Virginia, 518 U.S. 515, 568,
(1996)).
Laws that regulate only the “manner in which persons may lawfully
exercise their Second Amendment rights,” Marzzarella, 614 F.3d at 97,
have been held to be less burdensome than those which bar firearm
possession completely. See United States v. Decastro, 682 F.3d 160, 166
(2d Cir. 2012); see also Heller II, 670 F.3d at 1257; Masciandaro, 638 F.3d
at 470. Similarly, “firearm regulations which leave open alternative
channels for self-defense are less likely to place a severe burden on the
Second Amendment right than those which do not.” Jackson, 746 F.3d at
961 (citing Marzzarella, 614 F.3d at 97).
While undertaking this analysis, we note that most of the federal
circuits to reach step two of the two-step test followed here have applied
intermediate scrutiny when considering challenges to laws which impact
the Second Amendment right. See Jackson, 746 F.3d at 965, 968 (holding
that intermediate scrutiny was the appropriate standard to apply to laws
which “implicate[] the core . . . Second Amendment right [of self-defense]
. . . [but do not] impose a substantial burden on conduct protected by the
Second Amendment,” and to those that “neither regulate[] conduct at the
core . . . nor burden[] that right severely”); see also Chovan, 735 F.3d 1127,
1138 (9th Cir. 2013) (holding that a federal law placing a lifetime ban on
the possession of firearms on those convicted of domestic violence
misdemeanors was subject to intermediate scrutiny); Woollard, 712 F.3d
at 876 (determining intermediate scrutiny to be the applicable standard to
apply to a Maryland law requiring handgun permits); Nat’l Rifle Ass’n of
Am., 700 F.3d at 205 (concluding that a federal law “prohibit[ing]
commercial handgun sales to 18-to-20-year-olds” triggered “nothing more
than ‘intermediate’ scrutiny”); Heller II, 670 F.3d at 1257 (concluding that
intermediate scrutiny is the “more appropriate standard for review of gun
registration laws”); Reese, 627 F.3d at 802 (holding that a statute
prohibiting possession of a firearm while under a domestic protection
order is subject to intermediate scrutiny); Marzzarella, 614 F.3d at 97(applying intermediate scrutiny to a statute prohibiting possession of
firearms with the serial number obliterated, but acknowledging that the
matter was “not free from doubt”). But see Tyler, 2014 WL 7181334, at
18
*17 (applying strict scrutiny and stating that “[i]n choosing strict scrutiny,
we join a significant, increasingly emergent though, as yet, minority view
that concludes that as between intermediate scrutiny and strict scrutiny
. . . the latter is more appropriate for assessing a challenge to an
enumerated constitutional right”); Peruta, 742 F.3d at 1167-79 (declining
to undertake a heightened scrutiny analysis because the court determined
that the provision at issue destroyed the “Second Amendment right to bear
arms in lawful self-defense”).
At least one federal circuit court applying the two-step analysis has
employed a seemingly more demanding form of intermediate scrutiny to
Second Amendment challenges. See Ezell, 651 F.3d at 708-09 (contrasting
the intermediate scrutiny previously applied by the Seventh Circuit in
Skoien to the prohibition against firearm possession by “persons convicted
of a domestic violence misdemeanor,” with the intermediate scrutiny
applied in Ezell to a law affecting possession of a firearm by law-abiding
citizens on a firing range, and stating that “this suggests that a more
rigorous showing than that applied in Skoien should be required, if not
quite ‘strict scrutiny’”). Another decided the issue at step one of the two-
step analysis. See Greeno, 679 F.3d at 520 (finding that the provision at
issue fell “outside the scope of the Second Amendment right as historically
understood” and thus failing to reach the issue of which form of
heightened scrutiny should be applied).
Still other federal circuit courts have concluded that intermediate
scrutiny is the appropriate standard to apply to Second Amendment
challenges, but declined to employ the two-step analysis. See Kachalsky,
701 F.3d at 96-97 (concluding that “intermediate scrutiny is [the]
appropriate” standard to apply to a New York handgun licensing law
requiring a showing of “proper cause” to carry a concealed handgun);
Booker, 644 F.3d 12, 25 (1st Cir. 2011) (holding that “a categorical ban on
gun ownership by a class of individuals must be supported by some form
of ‘strong showing,’ necessitating a substantial relationship between the
restriction and an important governmental objective”); Masciandaro, 638
F.3d at 470-71 (stating that “[w]hile we find [that] the application of strict
scrutiny [is] important to protect the core right of the self-defense of a law-
abiding citizen in his home . . . we conclude that a lesser showing is
necessary with respect to laws that burden the right to keep and bear arms
outside of the home. Accordingly, [the challenged provision] will survive
. . . if it satisfies intermediate scrutiny”); Skoien, 614 F.3d at 641-42
(accepting the government’s concession that intermediate scrutiny is the
appropriate standard).
19
Finally, some federal circuit courts have declined to decide such
challenges based on a standard of heightened scrutiny. See Moore, 702
F.3d 933, 941 (stating that “our analysis is not based on degrees of
scrutiny, but on Illinois’s failure to justify the most restrictive gun law of
any of the 50 states”); White, 593 F.3d at 1205–06 (holding a federal law
prohibiting those found guilty of misdemeanor domestic violence from
possessing firearms to be “a presumptively lawful ‘longstanding
prohibition[] on the possession of firearms’” as described by the Supreme
Court in Heller I (alteration in original) (quoting Heller I, 554 U.S. at 626)));
Rene E., 583 F.3d at 16 (holding that the Second Amendment was not
violated by a law prohibiting juveniles from possessing handguns after
“evaluat[ing] this prohibition in light of the state laws of the nineteenth
century regulating juvenile access to handguns on the ground that their
possession can pose a serious threat to public safety . . . [and] evaluat[ing]
evidence that the founding generation would have regarded as consistent
with the right to keep and bear arms”).
These cases illustrate that the level of scrutiny to be applied to Second
Amendment questions, or, indeed, whether a standard of heightened
scrutiny should be applied at all, is unsettled. Chester, 628 F.3d at 688-
89 (Davis, J., concurring) (“Heller [I] has left in its wake a morass of
conflicting lower court opinions regarding the proper analysis to apply to
challenged firearms regulations.”). While Second Amendment
jurisprudence is still in its infancy and the scope of the Second
Amendment is not yet clearly defined, see Marzzarella, 614 F.3d at 101,
we believe, and the weight of authority from various jurisdictions leads us
to conclude, that intermediate scrutiny is the proper standard to apply to
section 790.053.
Regarding the first prong of the intermediate scrutiny test, the State
asserts that public safety is the paramount interest furthered by the ban
on open carry. We agree that such an interest is compelling. See, e.g.,
Schall v. Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and compelling
state interest’ in protecting the community from crime cannot be doubted.”
(quoting De Veau v. Braisted, 363 U.S. 144, 155 (1960))); Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-Defense: An
Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443,
1470 (2009) (“[V]irtually every gun control law is aimed at serving interests
that would usually be seen as compelling—preventing violent crime,
injury, and death.”). Because we agree that the government has a
substantial interest in regulating firearms as a matter of public safety,
Shew, 994 F. Supp. 2d at 248-49 (stating that “‘[t]he regulation of firearms
is a paramount issue of public safety’” (quoting Osterweil v. Bartlett, 706
F.3d 139, 143 (2d Cir. 2013)), the first prong of the test is easily satisfied.
20
As to the second prong, because of the difficulty in obtaining empirical
proof of regulation efficacy, courts have traditionally been more deferential
to the legislature in this area. Heller v. Dist. of Columbia (Heller III), No.
08-1289, 2014 WL 1978073, at *10 (D.D.C. May 15, 2014) (“‘The quantum
of empirical evidence needed to satisfy heightened judicial scrutiny of
legislative judgments will vary up or down with the novelty and plausibility
of the justification raised.’” (quoting Nixon v. Shrink Mo. Gov’t PAC, 528
U.S. 377, 391 (2000))). But see Peruta, 742 F.3d at 1176-77 (stating that
“when assessing ‘the fit between the asserted interests and the means
chosen to advance them,’” a court should apply “no such deference”
(quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997))).14 Our
review of the Declaration of Policy expressed in section 790.25 sufficiently
establishes that a reasonable fit exists between the challenged law and the
Legislature’s asserted objectives. As a result, this second prong of the
intermediate scrutiny analysis is satisfied as well.
Therefore, we hold that section 790.25 passes the intermediate scrutiny
test and survives Defendant’s challenge.
2. Overbreadth
Defendant also asks this court to declare that Florida’s “open carry”
prohibition is overbroad and should be found to be unconstitutional
because it infringes on constitutionally protected conduct.
It has been noted that First Amendment standards of review are
generally ill-suited for use in settling Second Amendment questions.15
14 Reliable scientific proof regarding the efficacy of prohibiting open carry is
difficult to obtain. Volokh, 56 UCLA L. Rev. at 1465 (“There are no controlled
experiments that can practically and ethically be run. ‘Natural experiments’
stemming from differences in policies and in gun ownership rates among different
cities, states, or countries are subject to many confounding factors, such as
culture and background crime rates.”).
15 See, e.g., Darrell A.H. Miller, Text, History, and Tradition: What the Seventh
Amendment Can Teach Us About the Second, 122 Yale L.J. 852, 895-96 (2013)
(discussing the problems of using First Amendment standards of scrutiny to
Second Amendment challenges, and stating that “[t]he flexible levels-of-scrutiny
analysis that encumbers the First Amendment is ‘baggage’ the Heller [I] majority
seems eager to shed when it comes to the Second Amendment”) (footnotes
omitted); Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of
Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street
Gangs, 41 Urb. Law. 1, 82 (2009) (“Seeking guidance from the standards of
21
Moreover, recent cases in other courts following Heller I and McDonald
have similarly declined to consider applying an overbreadth analysis, as
used in First Amendment cases, to challenges of firearms laws. United
States v. Chester (Chester III), 514 F. App’x 393, 395 (4th Cir. 2013) (“[N]o
circuit has accepted an overbreadth challenge in the Second Amendment
context.”); Kachalsky, 701 F.3d at 101 (refusing to consider Second
Amendment overbreadth challenge because “[o]verbreadth challenges are
generally limited to the First Amendment context,” and “even if . . .
overbreadth analysis may apply to Second Amendment cases,” it may be
invoked only by plaintiffs with a valid as-applied challenge); Decastro, 682
F.3d at 169 (“There is no overbreadth argument that [appellant] can make
in the Second Amendment context.”); United States v. Barton, 633 F.3d
168, 172 n.3 (3d Cir. 2011) (noting, in Second Amendment challenges,
that courts “do not recognize an ‘overbreadth’ doctrine outside the limited
context of the First Amendment”).16
scrutiny under the First Amendment, although advocated by some, encounters
serious problems.”) (footnote omitted).
16 Justice Scalia invoked the First Amendment numerous times to declare an
individual right to keep and bear arms in Heller I. See 554 U.S. at 579–80, 582,
591, 595, 629 n.27, 635 (appealing to free speech or the First Amendment to
support various interpretive points). Therefore, we do not imply that challenges
in Second Amendment cases can never be resolved by looking to other areas of
First Amendment jurisprudence, or that such jurisprudence cannot be applied
to Second Amendment challenges in other contexts. For example, content
neutral regulations limiting speech’s time, place, or manner must also survive a
form of intermediate scrutiny similar to that undertaken here—i.e., if the
regulation promotes a significant interest unrelated to the suppression of a
message and allows for “‘ample alternative channels for communication.’” See,
e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984)). Similar regulations
have also been subjected to a form of intermediate scrutiny because doing so
imposes a lesser burden on First Amendment values. See Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (stating that “[i]n places
which by long tradition or by government fiat have been devoted to assembly and
debate . . . [t]he state may . . . enforce regulations of the time, place, and manner
of expression which are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of
communication”) (citations omitted). Indeed, the Third Circuit’s decision in
Marzzarella rested on a view that because “Heller [I] itself repeatedly invokes the
First Amendment in establishing principles governing the Second Amendment,”
that fact “implies the structure of First Amendment doctrine should inform . . .
analysis of the Second Amendment.” 614 F.3d at 89 n.4. But see Kachalsky,
701 F.3d at 91-92 (stating that “[w]e are hesitant to import substantive First
Amendment principles wholesale into Second Amendment jurisprudence. . . . it
22
The Sixth Circuit is the only court we have found to engage in an
overbreadth analysis in the context a Second Amendment challenge, and
it did so after determining, at step two of the two-step test, that strict
scrutiny should apply to the provision at issue in that case. See Tyler,
2014 WL 7181334, at *19 (stating that “[o]verbreadth, however, can and
must be considered as part of strict scrutiny’s narrow-tailoring
requirement”). Therefore, because we have determined that applying strict
scrutiny is not appropriate here, we decline the invitation to consider
Defendant’s challenge to Florida’s open carry restriction using an
overbreadth analysis.
3. Alternative Channels to Exercise the Right
Defendant does not argue that the requirements to obtain a Florida
permit are unreasonable to the point of making the law unconstitutional.
Defendant was not prohibited from obtaining a concealed weapons
permit—indeed, he possessed one at the time of his arrest. Likewise,
Defendant did not argue that he was somehow precluded from the ability
to lawfully carry his weapon in a concealed fashion. He was able to
lawfully possess his firearm, albeit while concealed, for self-defense
purposes as recognized by the Second Amendment, the Florida
Constitution, and Florida Statutes. The course of conduct he chose, that
of openly carrying his firearm for protection, was not the only option
available to him to exercise his rights.
While the right to carry outside the home has been established by the
highest court of the land, no decision interpreting the Second Amendment
can be cited for the proposition that a state must allow for one form of
carry over another.17 Because the Legislature has the right to enact laws
regarding the manner in which arms can be borne, it is likewise permitted
to forbid the carrying of arms in a particular place or manner which, in its
would be as imprudent to assume that the principles and doctrines developed in
connection with the First Amendment apply equally to the Second, as to assume
that rules developed in the Second Amendment context could be transferred
without modification to the First.”).
Also, in the First Amendment context, the Court has applied strict scrutiny
when reviewing situations where there has been an “infringement” on political
speech, Citizens United, 558 U.S. at 340, and on the freedom of association, Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000), and on a content-based speech
regulation. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
17In Heller I, the Court cites several nineteenth-century cases holding that certain
modes of public carry can be prohibited when other modes are allowed. 554 U.S.
at 610-14.
23
collective judgment, is likely to lead to breaches of the peace, see Carlton
v. State, 58 So. 486, 488-89 (Fla. 1912), provided a reasonable alternative
manner of carry is provided.
We stress, however, that the Legislature’s discretion in this area is not
limitless. For example, the federal court 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. See Kachalsky, 701 F.3d at 97
(stating that “[i]n the context of firearm regulation, the legislature is ‘far
better equipped than the judiciary’ to make sensitive public policy
judgments (within constitutional limits) concerning the dangers in
carrying firearms and the manner to combat those risks. Thus, our role
is only ‘to assure that, in formulating its judgments, [New York] has drawn
reasonable inferences based on substantial evidence.’” (alteration in
original) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66
(1994))). 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. The degree of legislative deference exhibited in cases such as
Woollard, Drake and Kachalsky goes too far, and would serve to validate
expansive restrictions inconsistent with those rights guaranteed by the
Second Amendment and the Florida Constitution.
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.’” Id. at 1172 (quoting Nunn v. State, 1 Ga.
243, 248 (1846). 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 I, 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.” Drake, 724 F.3d at 449 (Hardiman, J., dissenting).
In our opinion, section 790.053 does not effectively enjoin responsible,
law-abiding citizens from the right to carry a firearm in public for self-
defense. Rather, it permits the typical responsible, law-abiding citizen the
ability to bear arms in public, albeit with constitutionally permissible
24
restrictions, for the lawful purpose of self-defense. 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. Further, open carry
is not the only practical avenue by which Defendant may lawfully carry a
gun in public for self-defense. Through its “shall-issue” permitting
scheme, Florida has provided a viable alternative outlet to open firearms
carry which gives practical effect to its citizens’ exercise of their Second
Amendment rights.
II. The Exceptions to the Prohibition Against Open Carry Constitute
Affirmative Defenses.
Defendant asserts that the exceptions under section 790.25(3) are
elements the State must prove to support a violation of the open carry
statute, not affirmative defenses. The State responds that the exceptions
are affirmative defenses that must initially be raised by, and supported
with, evidence from the defendant, rather than negated in the first
instance by the state. “Determining whether [an] exception is an element
of the crime to be negated by the State or is in the nature of a defense,
requiring the defendant to come forward with evidence, is an issue of law
subject to de novo review.” Hodge v. State, 866 So. 2d 1270, 1271-72 (Fla.
4th DCA 2004).
In determining whether an exception is an element of the crime or an
affirmative defense, a court looks to its placement in the wording of the
statute. Id. at 1272. As we explained in Hodge:
If the exception appears in the enacting clause, the burden
lies with the State to prove that the defendant is not within
the exception; but, if the exception is contained in a
subsequent clause or statute, that is a matter of defense
requiring the defendant to put forth some evidence in support
thereof.
Id.In the instant case, the exceptions are not in the enacting clause of
section 790.053, but are contained within a separate statute altogether.
See § 790.25(3). The trial court properly read section 790.053 in
conjunction with section 790.25(3), which sets forth specific persons,
places, and activities where it is legal to “own, possess, and lawfully use”
(and in some cases openly display), firearms without first obtaining any
permit or license. Id.
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Since the law specifically excludes prosecution for open carry violations
in those instances, the trial court correctly determined they are affirmative
defenses and instructed the jury as to the elements of the crime.
III. Defendant Does not have Standing to Challenge the “Brief and Open
Display” Exception.
Defendant further argues that the open carry statute is
unconstitutionally vague as to what constitutes a “brief” and open display
of a firearm. Section 790.053 contains the following exception:
It is not a violation of this section for a person licensed to carry
a concealed firearm as provided in s. 790.06(1), and who is
lawfully carrying a firearm in a concealed manner, to briefly
and openly display the firearm to the ordinary sight of another
person, unless the firearm is intentionally displayed in an
angry or threatening manner, not in necessary self-defense.
Testimony during trial revealed that in February 2012, officers from the
Fort Pierce Police Department responded to a call. When the officers
arrived at the scene five minutes later, they saw Defendant carrying a
firearm in “plain view” in a holster on his hip. The firearm was on the
outside of Defendant’s tight fitting tank top. A video recording from a
police car was introduced into evidence and published to the jury. The
video depicts Defendant walking on the sidewalk with the firearm clearly
visible on the outside of his clothing. After the trial, the court denied
Defendant’s various motions to dismiss, making a finding of fact that there
was no credible evidence presented at trial that Defendant’s firearm had
been concealed before his arrest, or that it could have been, considering
his manner of dress.
Defendant is precluded from bringing an “as applied” constitutional
challenge because the factual findings made by the trial court demonstrate
that he never concealed his weapon during the relevant period. Despite
Defendant’s claim that his weapon was holstered and thus legally
“concealed,” a holster alone cannot conceal a firearm. “Conceal” means
“to hide (something or someone) from sight” or “to keep (something)
secret.”18 Defendant’s holstered weapon was in plain view. Because he
openly displayed his firearm at all times, the exception he seeks to
challenge does not apply to him, and therefore, he lacks standing to raise
18Conceal Definition, Merriam-Webster.com, http://www.merriam-webster.com/
dictionary/concealed?show=0&t=1396289892 (last visited Jan. 4, 2015).
26
this challenge. See Broadrick, 413 U.S. at 610 (“Embedded in the
traditional rules governing constitutional adjudication is the principle that
a person to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may conceivably be
applied unconstitutionally to others, in other situations not before the
Court.”).
Accordingly, we uphold the trial court’s findings in all respects.
Affirmed.
MAY and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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