Earlier today my colleague Tom Knighton wrote about the frustrations Second Amendment activists have over the lack of action in the Florida legislature in repealing some of the Sunshine State's gun control laws, despite Republican supermajorities in both chambers. One of the to-do items that Gun Owners of America's Luis Valdes wants lawmakers to tackle is getting rid of the state's ban on open carry.
While Florida doesn't require a license in order to lawfully carry a concealed firearm, openly carrying a firearm is generally prohibited... even for those with a carry permit (though they are allowed to "briefly and openly display the firearm to the ordinary sight of another" without committing a crime). Second Amendment groups like GOA have been trying for several years now to get the Republican-controlled legislature to repeal the ban, but they've encountered resistance from lawmakers.
GOA is also challenging the ban in court, however. The group filed suit in federal court seeking to overturn the law and naming then-St. Lucie County Sheriff Keith Pearson and 19th Judicial Circuit State Attorney Thomas Bakkedahl as defendants (Pearson has now been replaced by current Sheriff Richard Del Toro in the lawsuit). Former Florida Attorney General Ashley Moody, whose office would ordinarily have represented the public officials in the litigation, declined to defend the open carry ban, but the Republican sheriff and state attorney are mounting their own defense of the law.
Two sides in the dispute have both asked U.S. District Judge Jose Martinez to grant summary judgement in their favor, circumventing the need for a trial. In their most recent brief, the defendants argue that district courts don't have the power to declare laws facially unconstitutional and unenforceable, pointing to the Supreme Court's decision in Trump v. CASA and contending SCOTUS made it clear that "district courts lack the authority to prohibit enforcement of a law or policy against anyone who is not a named party to the lawsuit, and that an injunction could not bind 'one who is not a party to the cause.'"
The pair also claim that GOA lacks standing to sue on behalf of its members and that the named plaintiff in the case lacks standing because as a non-resident of St. Lucie County he's not in imminent danger of arrest or prosecution by county officials for openly carrying.
Now, it would be bad enough if these officials were trying to get the case tossed on technical grounds, but Del Toro and Bakkedahl (through their attorney) also argue that the ban on open carry fits comfortably within the Second Amendment and the national tradition of gun ownership.
To do that, the defendants point to this passage from the Bruen decision:
The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.
In defending its "may issue" carry regime in Bruen, New York pointed to 19th century prohibitions on concealed carry. The Supreme Court acknowledged that "the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues,” but noted that the opinions cited by New York "agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry."
This, to me, is probably the biggest legal hurdle that the plaintiffs face. In their own motion for summary judgement, they argued that "the Founders broadly understood the term 'to bear' to mean to 'wear, bear, or carry …upon the person or in the clothing or in a pocket.'" They note that there's nothing in the plaint text of the Second Amendment to suggest that one form of carriage can be banned so long as another is allowed. They even argued that Florida's open carry ban "offends the memory of the colonists who openly carried their muskets and mustered on the greens at Lexington and Concord to fight for their independence," adding that, "had they complied with an open carry ban, this country might still be a British colony."
All of that is true, but it doesn't address the armed elephant in the room: the Supreme Court has certainly suggested, if not stated outright, that the national tradition of gun ownership allows for states to lawfully eliminate one kind of public carry so long as they left open the other option.
That doesn't change the fact that the vast majority of states allow for both concealed and open carry, and more than half the country doesn't require a permit to do either. Still, Martinez might very well decide it's up to the legislature, not the federal courts, to remove the ban on open carry from Florida statute, which is all the more reason for gun owners in the state to replace any Republicans who are squishy on the Second Amendment with stalwart defenders of the right to keep and bear arms.
