Norman v. State link to oral arguments here.

Norman v. State is an Open Carry case. I've posted an link to the oral arguments on the "Oral Arguments" page of my website which contains a number of links to oral arguments in other cases.

Click here.

Thanks for the link .. the attny seems to think that the govt could do almost anything short of a ban ...

davidmcbeth said:

Thanks for the link .. the attny seems to think that the govt could do almost anything short of a ban ...

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She argued that the challenge survives the rational basis test. Strange how often that is raised as a defense given that SCOTUS took rational review off the table. Usually what courts do is to say they are applying intermediate scrutiny when they are in fact applying something less than rational review.

Even the rational basis test has some teeth. Laws which don't implicate a fundamental right or any of the categories which required heightened scrutiny can be "stupid" but they still must be rational and not arbitrary. The reasons which caused the law to be enacted in the first place must still be present today or the law is at risk of invalidation even under the rational basis test.

davidmcbeth said:

Thanks for the link .. the attny seems to think that the govt could do almost anything short of a ban ...

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The state's attorney was just awful. If she was smart she would have cited Peruta over and over again and subscribed to SAF/Gura's strategy of allow one or the other, but she just rambled on about the right not extending outside the home and "common sense". Fine by me, a nice OC win makes yet another path the courts are taking. It makes it hard for SCOTUS to keep denying cert when the courts are splitting in many different ways.

California Right To Carry said:

She argued that the challenge survives the rational basis test. Strange how often that is raised as a defense given that SCOTUS took rational review off the table. Usually what courts do is to say they are applying intermediate scrutiny when they are in fact applying something less than rational review.

Even the rational basis test has some teeth. Laws which don't implicate a fundamental right or any of the categories which required heightened scrutiny can be "stupid" but they still must be rational and not arbitrary. The reasons which caused the law to be enacted in the first place must still be present today or the law is at risk of invalidation even under the rational basis test.

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The state's briefing on this was really weird considering they never ever specify what the right is. The state almost seems to be throwing the case intentionally.

press1280 said:

The state's attorney was just awful. If she was smart she would have cited Peruta over and over again and subscribed to SAF/Gura's strategy of allow one or the other, but she just rambled on about the right not extending outside the home and "common sense". Fine by me, a nice OC win makes yet another path the courts are taking. It makes it hard for SCOTUS to keep denying cert when the courts are splitting in many different ways.

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Peruta is the only case which has created a split. It created a split with every Federal and state court of appeals. Peruta even created an intra-circuit split here in the 9th Circuit which is one of the reasons AG Harris gave in her en banc petition.

Peruta would not have helped the state's attorney any given that the court referred to the Peruta decision providing an "alternative" means of carry. There is a lot of Federal case law saying that the government cannot provide alternatives to a fundamental right.

One can never predict the outcome of a case based on oral arguments but the failure of the state's attorney to provide any evidence to support her "commonsense" assertion that Open Carry is more dangerous despite nearly two hundred years of precedents saying that concealed carry is more dangerous than Open Carry means she failed to meet her burden under heightened scrutiny which leaves just rational basis as her only justification for upholding the Open Carry ban.

Heller took rational basis off the table and so "legally" she lost her case.

Let us hope at least two of the judges take Norman's advice and strike down the law with a limited stay ending at the close of Florida's upcoming legislative session.

California Right To Carry said:

Peruta is the only case which has created a split. It created a split with every Federal and state court of appeals. Peruta even created an intra-circuit split here in the 9th Circuit which is one of the reasons AG Harris gave in her en banc petition.

Peruta would not have helped the state's attorney any given that the court referred to the Peruta decision providing an "alternative" means of carry. There is a lot of Federal case law saying that the government cannot provide alternatives to a fundamental right.

One can never predict the outcome of a case based on oral arguments but the failure of the state's attorney to provide any evidence to support her "commonsense" assertion that Open Carry is more dangerous despite nearly two hundred years of precedents saying that concealed carry is more dangerous than Open Carry means she failed to meet her burden under heightened scrutiny which leaves just rational basis as her only justification for upholding the Open Carry ban.

Heller took rational basis off the table and so "legally" she lost her case.

Let us hope at least two of the judges take Norman's advice and strike down the law with a limited stay ending at the close of Florida's upcoming legislative session.

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The jury is still out on CCW being an acceptable means. SCOTUS has never specifically ruled on it; the 19th and early 20th century state cases certainly make it easier for the OC route although I believe those cases are a product of their time. The easily concealable pistols were cheap and commonly carried by minorities and poor whites. We know now that people can carry concealed without plotting to secretly kill someone which the courts believed was the only reason someone would carry concealed. The society back then didn't soil itself at the sight of a gun.

press1280 said:

The jury is still out on CCW being an acceptable means. SCOTUS has never specifically ruled on it; the 19th and early 20th century state cases certainly make it easier for the OC route although I believe those cases are a product of their time. The easily concealable pistols were cheap and commonly carried by minorities and poor whites. We know now that people can carry concealed without plotting to secretly kill someone which the courts believed was the only reason someone would carry concealed. The society back then didn't soil itself at the sight of a gun.

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The society back then didn't soil itself at the sight of a gun.

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I long for such a society. Would that be too much to hope for?

press1280 said:

The jury is still out on CCW being an acceptable means. SCOTUS has never specifically ruled on it; the 19th and early 20th century state cases certainly make it easier for the OC route although I believe those cases are a product of their time.

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SCOTUS has said three times that concealed carry is not a right. It wasn't just 19th and early 20th century state cases which held that there is no right to concealed carry, every court, state and Federal, since Bliss v. Commonwealth in 1822 has held that there is no right to carry a concealed weapon. Including the Peruta decision which said "To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry."

I do not understand why there are so many people who simply cannot comprehend why it is that when a right is incorporated to the states via the 14th Amendment, the right is incorporated to the states as the right was understood in 1868 when the 14th Amendment was adopted. In 1868 it was clearly understood that only cowards and criminals carried concealed weapons and therefore concealed carry was not a right. Here in California, in 1868, there was an absolute statewide prohibition on concealed carry excepting only travelers while on a journey and police. No permits, state or local, could be issued regardless of the reason.

Incorporation of a right via the 14th Amendment is as simple to understand as why we don't put diesel fuel into the tank of a motor vehicle powered by gasoline. If one does not understand the "why?" then he'll simply have to accept the fact, as much as he dislikes it, that this is just the way it is.

California Right To Carry said:

SCOTUS has said three times that concealed carry is not a right. It wasn't just 19th and early 20th century state cases which held that there is no right to concealed carry, every court, state and Federal, since Bliss v. Commonwealth in 1822 has held that there is no right to carry a concealed weapon. Including the Peruta decision which said "To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry."

I do not understand why there are so many people who simply cannot comprehend why it is that when a right is incorporated to the states via the 14th Amendment, the right is incorporated to the states as the right was understood in 1868 when the 14th Amendment was adopted. In 1868 it was clearly understood that only cowards and criminals carried concealed weapons and therefore concealed carry was not a right. Here in California, in 1868, there was an absolute statewide prohibition on concealed carry excepting only travelers while on a journey and police. No permits, state or local, could be issued regardless of the reason.

Incorporation of a right via the 14th Amendment is as simple to understand as why we don't put diesel fuel into the tank of a motor vehicle powered by gasoline. If one does not understand the "why?" then he'll simply have to accept the fact, as much as he dislikes it, that this is just the way it is.

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Good explanation.

I think people get all tangled up with concealed carry, because almost every state allow it (even when not constitutionally mandated to do so.)

It's pretty simple. States may only, minimally, infringe on the right to open carry a firearm if it is done in a manner that is very narrow in it's scope and specifically tailored to serve a complementing state interest. The so-called, generic, 'public safety' concern is not enough. As Mr. Friday pointed out, that might include a restriction on having a handgun holstered, or a rifle slung as opposed to being carried in one's hands. And perhaps some 'sensitive' buildings, like jails and courthouses, that is, in the areas where criminals and crazies are stored.

Initial brief on the merits filed with the Florida Supreme Court

The Initial Brief by Norman has been filed with the Florida Supreme Court. I just gave it a first read and I like it. Norman's attorney (Eric Friday) argued that Open Carry is the Second Amendment right (and the right under the Florida Constitution), and that the State may license or ban concealed carry, but not open carry, and that the state cannot require a permit to openly carry firearms.

Some might fault Normans attorney for seeking his alternate relief (last sentence of brief) but they should keep in mind that this is an appeal of a criminal conviction. Friday's job is to overturn Norman's conviction, not vindicate the Second Amendment.

Obviously, the SAF isn't going to invite Friday back to speak and there won't be any award from the NRA in his future.

I maintain a tabbed page at my website dedicated to this case which can be found here -> http://blog.californiarighttocarry.org/?page_id=2318

The state's answering brief is due on December 15th. Norman's answering brief is due twenty days later and then we wait to see if their will be oral arguments and then we wait for a decision.

California Right To Carry said:

SCOTUS has said three times that concealed carry is not a right. <snip>

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So what? I am not impressed with SCOTUS nor seek them to validate a right, they cannot vote on such a thing anyways. SCOTUS changes their minds routinely....that's why they don't produce factual findings on the law but just opinions.

OC/CC -- up to the person -- both are OK. I would never find anyone guilty of any gun related crime.


Still liking your posts though !

The FL Supreme court will find that the "right" is the privilege to purchase a license to do otherwise illegal activity, namely to carry concealed weapons in places the state has not arbitrarily banned license holders from carrying.

Should the legal language in SB 300 go through this session, there is a non zero chance they'd rule correctly, I'd say about 5%. SB 300 will most likely not make it to the governor's desk. I expect bad legal precedent as a result of the case, much like with the "stand your ground" legislation.

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Wasn't the state's response due 12/15?

district9 said:

Wasn't the state's response due 12/15?

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Here you go:

State: The open carry ban is constitutional on it's face. The Supreme Kourt has said the right to bear arms is not a right to bear anything in whatever manner you want. The Fl Constitution says the state may regulate the manner of bearing arms. Open carry is scary and unsafe. We have to issue licenses to people who aren't "unskilled or lawless".

Fl Carry: The open carry ban in no way is written to keep the "unskilled or lawless" from carrying, which is what the "manner" regulation means. We don't require licensure for keeping arms, only that lawless people are banned from possessing them and that if they're found possessing them there can be severe consequences. And as applied to people with CWFL's, the open carry ban serves no state interest. There is no evidence open carry is scary or unsafe, 45 other states have open carry. Criminals do not open carry, and "unskilled" people are punished under 790.10, which prohibits exhibiting weapons in a "rude, careless, angry, or threatening manner, not in necessary self-defense". You can't make someone prove by prior restraint (with $120 and a couple months wait) that they are allowed to exercise a fundamental right, which carrying arms is.

Fl Supreme Kourt 4-1 or 3-2: You have a right to bear arms. The state can ban or regulate that right in any manner they see fit. Manner, manner, manner. Manner is what we say it means. Your right is the privilege to purchase a license to conceal, open carry is irrelevant. Go away.

The end.

77zach said:

Here you go:

State: The open carry ban is constitutional on it's face. ...

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it's = it is
its = possessive form of "it"

The end.

district9 said:

Wasn't the state's response due 12/15?

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But to answer your question it's due 12/20/2015, Mississippi carry's brief was denied for not following the rules and the state is asking for an extension, which will be granted , so you're looking at 1/20/15. They won't uphold Norman's conviction and hold the ban constitutional until after the 2016 statutes are done. I hope my above analysis is correct, there's a chance we get some really bad precedent. The decision to pursue this in the kangaroo kourt system of florida is risky and can profit us nothing, imo.

http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2015&p_casenumber=650

district9 said:

Wasn't the state's response due 12/15?

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Apparently, the court was closed on the Friday after Thanksgiving as well as Monday the 30th otherwise the state's calculation of "20 days" doesn't make sense. The state, in a brief regarding the Amicus by Mississippi Carry said that its brief to Norman's Initial Brief was due on or before the 20th of this month. Today, the state filed a motion for an extension of time to file to file its Answering brief which it will no doubt receive. We won't know when the new date is until the court files the new due date.

UPDATE:

Respondent’s motion for extension of time is granted, and respondent is allowed to and including January 20, 2016, in which to serve the answer brief on the merits. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED TO RESPONDENT FOR THE FILING OF THE ANSWER BRIEF ON THE MERITS. All other times will be extended accordingly.

77zach said:

But to answer your question it's due 12/20/2015, Mississippi carry's brief was denied for not following the rules and the state is asking for an extension, which will be granted , so you're looking at 1/20/15. They won't uphold Norman's conviction and hold the ban constitutional until after the 2016 statutes are done. I hope my above analysis is correct, there's a chance we get some really bad precedent. The decision to pursue this in the kangaroo kourt system of florida is risky and can profit us nothing, imo.

http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2015&p_casenumber=650

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I have no faith in the Federal courts and CA11(the regular judges, not the senior judges) is overwhelmingly Dem-appointees. I think this is the way to go, unfortunately.

Thanks for the info 77zach and California Right To Carry.

77zach, I think your analysis in post 15 is unfortunately spot on.