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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-18-2015, 10:25 AM
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Default Florida Court Rules Against Norman In Open Carry Case - Cert denied 11/27

Here's the bad news:

https://edca.4dca.org/DCADocs/2012/3...5_083006_i.pdf

The Peruta case is mentioned in the decision.

Florida Carry plans to appeal to the Florida Supreme Court.

As requested by Paladin:

https://www.supremecourt.gov/search....lic/17-68.html

Last edited by ccmc; 09-20-2017 at 7:25 AM.. Reason: Request by Paladin
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Old 02-18-2015, 11:06 AM
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Kinda didn't agree with their statement that said basically "because SCOTUS said we could regulate conceal carry...that means we can regulate open carry too."

Cuz all of the examples that SCOTUS pointed to about long standing regulation of concealed carry being presumptively lawful was specifically because open carry was UNregulated......it was the free exercise of the right.
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Old 02-18-2015, 11:17 AM
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Originally Posted by Untamed1972 View Post
Kinda didn't agree with their statement that said basically "because SCOTUS said we could regulate conceal carry...that means we can regulate open carry too."

Cuz all of the examples that SCOTUS pointed to about long standing regulation of concealed carry being presumptively lawful was specifically because open carry was UNregulated......it was the free exercise of the right.
There's a lot in the decision I don't agree with, but none of that matters. They pretty much did what I expected ie throw it back at the legislature which is sadly too beholden to the tourism and retail lobbies to pass an OC bill (which Governor Scott has said he would sign). Hope I'm wrong about that, as I don't see the outcome in the Florida Supreme Court being any different.
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Old 02-18-2015, 11:27 AM
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I liked this part... Too bad we can't all agree to this...

Quote:
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.
Quote:
“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 selfdefense.”
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Old 02-18-2015, 11:33 AM
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Oh man, this is right out of Animal Farm...

Quote:
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.
Started out with great intentions and then is skewed to fit the government agenda...

Like... You are free to go about your business, until the government decides otherwise...
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Last edited by dscoduc; 02-18-2015 at 11:34 AM.. Reason: Added more text
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Old 02-18-2015, 11:49 AM
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I read through most of it and thought it was a sound verdict. The guy had a concealed carry permit but decided to carry it in the open - not even trying to conceal it... The guy also admitted that he knew Open Carry is illegal but decided he was exempt from the law (which he wasn't)...

The way I read it the bottom line is that a State can say either Open Carry or CCW is illegal but both can't be illegal (sound familiar? - thank you Peruta). In the case of State of Florida they chose to be a Shall Issue State and make open carry illegal... They have it better than here in California at the moment...
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Old 02-18-2015, 12:45 PM
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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.

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, 014 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. 80, 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.
This is where I feel the courts are failing, the implementation of intermediate scrutiny correctly. They are willing to blindly defer to the legislature and any calls that a law is "for public safety." I agree that public safety is a compelling reason to enact a law, but the courts have to at least [I]try[I] to do some analysis on the specific law in question before they make a ruling on it.

In this particular case the court finds that "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," but I find that completely pointless to say because the Declaration states...

Quote:
(1) DECLARATION OF POLICY.—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.
There is nothing specific in there about Open Carry. There is nothing that describes what concerns or suspected effects of open carry that the legislature identified, and whether they are lawful concerns, there is just complete deference. What is the point of a court system that is supposed to decide on the legality of the legislatures decisions, if they defer to the legislatures decisions to decide the legality?
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Old 02-18-2015, 1:45 PM
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What is the point of a court system that is supposed to decide on the legality of the legislatures decisions, if they defer to the legislatures decisions to decide the legality?
About as pointless as Congress, deferring their lawmaking abilities to the Executive and Judicial Branch.

This will likely be the main argument for a higher level court appeal.
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Old 02-18-2015, 2:52 PM
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I thought this was the way the court would go, even though neither Norman nor the state was aiming for this outcome. This opinion, while not everything we want, DOES support Peruta and the overall strategy of Gura/SAF, and rejects Kachalsky, Drake, and Woollard. The big question now is if the FL Supremes will take the case with this outcome, which doesn't make any waves in FL but does make some waves on the national front. If the FL Supremes pass, it can be appealed to SCOTUS.
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Old 02-18-2015, 2:59 PM
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Not a completely surprising outcome, unless you're part of the "open carry is the core right" crowd. I personally agree that the core of the 2A is self defense, and not the mode of carry. As long as citizens are equally protected from government infringement allowing them to carry an operable firearm in a ready condition for self defense, then the 2A has been protected.

Yes, I know that Heller quoted a late 19th century court case talking about "unmanly assasinations" or "unmanly advantages" or something like that about concealed carry. Whatever it was, Heller didn't see fit to expound on it's role in their decision other than to show that some regulations have always been permitted. Let the flaming begin.
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Old 02-18-2015, 3:07 PM
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I'm part of the "I don't need permission for human rights" crowd.
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Old 02-18-2015, 3:07 PM
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Not a completely surprising outcome, unless you're part of the "open carry is the core right" crowd. I personally agree that the core of the 2A is self defense, and not the mode of carry. As long as citizens are equally protected from government infringement allowing them to carry an operable firearm in a ready condition for self defense, then the 2A has been protected.

Yes, I know that Heller quoted a late 19th century court case talking about "unmanly assasinations" or "unmanly advantages" or something like that about concealed carry. Whatever it was, Heller didn't see fit to expound on it's role in their decision other than to show that some regulations have always been permitted. Let the flaming begin.
I would agree and also point out that society was different back then and concealed carry is much more accepted today than in the 1800's. I believe there was probably a racial aspect to this as well. They didn't want blacks carrying concealed firearms to defend themselves, but by open carrying firearms they were "outing" themselves and would probably be targets of harassment for daring to defend themselves.
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Old 02-18-2015, 3:15 PM
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Originally Posted by press1280 View Post
I would agree and also point out that society was different back then and concealed carry is much more accepted today than in the 1800's. I believe there was probably a racial aspect to this as well. They didn't want blacks carrying concealed firearms to defend themselves, but by open carrying firearms they were "outing" themselves and would probably be targets of harassment for daring to defend themselves.

Very correct. Race has always played a roll in firearms laws in this Country. Also something to think about, historically there have been time and place restrictions on open carry, so it's not like it's always been an unfettered and untouched right.
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Old 02-18-2015, 3:31 PM
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This decision affirms that the right to carry exists. Any such decision is in our favor, even though this is a state court.

Whether we get open carry, concealed carry, either or both, it's a huge step forward from what's been going on in some federal circuits. Baby steps.
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Old 02-19-2015, 4:52 AM
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Originally Posted by press1280 View Post
I thought this was the way the court would go, even though neither Norman nor the state was aiming for this outcome. This opinion, while not everything we want, DOES support Peruta and the overall strategy of Gura/SAF, and rejects Kachalsky, Drake, and Woollard. The big question now is if the FL Supremes will take the case with this outcome, which doesn't make any waves in FL but does make some waves on the national front. If the FL Supremes pass, it can be appealed to SCOTUS.
I also thought the court would rule this way, but don't understand what you mean about the state not aiming for this outcome. They got everything they wanted despite the most lackluster presentation at orals they could possibly muster. I don't think SCOTUS will grant cert to this case if it goes that far, and I think the Florida Supreme Court will either pass or affirm this ruling. Any action on this front will have to come from the Florida legislature.

Another unfortunate consequence is the upholding of open carry exceptions as affirmative defenses which the legislature needs to address as well.
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Old 02-19-2015, 7:38 AM
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Originally Posted by Sleighter View Post
Not a completely surprising outcome, unless you're part of the "open carry is the core right" crowd. I personally agree that the core of the 2A is self defense, and not the mode of carry. As long as citizens are equally protected from government infringement allowing them to carry an operable firearm in a ready condition for self defense, then the 2A has been protected.

Yes, I know that Heller quoted a late 19th century court case talking about "unmanly assasinations" or "unmanly advantages" or something like that about concealed carry. Whatever it was, Heller didn't see fit to expound on it's role in their decision other than to show that some regulations have always been permitted. Let the flaming begin.
Where I disagree with you is when it comes to "regulation". As SCOTUS stated regulation or prohibition of concealed carry was presumptively lawful because of unrestricted open carry in those states.

I'm not arguing for open vs. concealed carry. I'm pointing to "permitted" vs "unrestricted". If a state wants to declare concealed the legal manner of carry.....fine. But then to place a permit requirement on top of it to do so now means you are not FREE to exercise your right. It is an infringement. There should be at least ONE unrestricted manner of carry available.

I doubt anyone can find "long standing regulations" requiring Gov't permission slips, background checks, training classes, or range qualifications at the time of the founders before one could exercise their constitutional rights.
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Old 02-19-2015, 8:19 AM
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I'm not arguing for open vs. concealed carry. I'm pointing to "permitted" vs "unrestricted". If a state wants to declare concealed the legal manner of carry.....fine. But then to place a permit requirement on top of it to do so now means you are not FREE to exercise your right. It is an infringement. There should be at least ONE unrestricted manner of carry available.
This is all correct in theory, and I'm certainly not going to disagree with you. But realistically speaking do you think we will ever see this nationwide, and if so, in what time frame?
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Old 02-19-2015, 8:56 AM
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I'm not arguing for open vs. concealed carry. I'm pointing to "permitted" vs "unrestricted". If a state wants to declare concealed the legal manner of carry.....fine. But then to place a permit requirement on top of it to do so now means you are not FREE to exercise your right. It is an infringement. There should be at least ONE unrestricted manner of carry available.
We are not there yet and that's the problem.

At this time, we have to get to: "the right to carry a functional firearm outside the home is indeed a right." In the process, there will be many games that involve "open vs. concealed." Just look at our own Peruta and how Thomas wanted to avoid addressing the issue.

After we get "bear" confirmed and solidified, then and only then can we really get into the issue of open vs. concealed and the level of permitting.
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Old 02-19-2015, 9:00 AM
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What i got out of this is its got similarities to peruta in the ruling.

They state that the right exists outside the home to carry. A right exists to carry in public for self defense.

They ruled the state may regulate carry outside the home via choosing the method they permit but they may not remove all viable modes of carry.
- a later battle can address rifle vs pistol .... that might come down to NFA or GCA doing away with teh distinction between the two what is the relevance to two classes of weapons if a pistol can shoot rifle ammo and a rifle pistol ammo ........ length of barrel, how its held all are factors of blah blah blah making the weapon more accurate and effective at self defense.... weather its concealable is a condition of a concealed permit and does not make the weapon any more dangerous or unusual..... but that path walks down challenging AWB's etc. maybe the AWB, NFA/GCA and CCW vs OC battles all converge at a later date in destroying the arbitrary classifications that the legislature and administrative branches have erected.

They essentially reached a judgement that if a shall issue concealed carry system didnt exist in the state then the lack of open carry and a restricted concealed would have been invalidated

They took issue with the 2nd , 3rd and 4th circuit rulings

Not a great ruling but continues down the similar path that peruta and moore went down, heck even Doe vs wilmington housing declared the right exists outside the home. those three CCA's choose to avoid or assume and then gyrate around that fact. more and more though courts are taking different routes to get there it seems the shift is occuring that they are agreeing the right does exist outside the home. much like gay marriage (and im not using that example as a good one just of court behavior) the court rulings were all over the board coming to different conclusions and through different methods then a shift occurred not a public shift but a quiet internal mentality of the courts and it started to appear that more and more rulings.
Im of the opinion that the shift to courts accepting the right does exist outside the home and not looking for such creative ways to avoid it is becoming mainstream. the successful challenges seem to have some interesting similarities too.


" 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.’” 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, 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.”
"
http://www.washingtonpost.com/news/v...an-open-carry/





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Old 02-19-2015, 9:24 AM
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This is all correct in theory, and I'm certainly not going to disagree with you. But realistically speaking do you think we will ever see this nationwide, and if so, in what time frame?
In CA....prolly not for another 20yrs at least. But more and more states that have been shall issue are moving to permitless carry.....so I could see a lot of the country going that direction on its own.

There is like 2 or three more states attempting to pass that this year alone. And the more states that go that route....the weaker any resisting states "public safety" argument becomes for wanting to restrict, permit or regulate it.
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Old 02-19-2015, 9:47 AM
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In CA....prolly not for another 20yrs at least. But more and more states that have been shall issue are moving to permitless carry.....so I could see a lot of the country going that direction on its own.

There is like 2 or three more states attempting to pass that this year alone. And the more states that go that route....the weaker any resisting states "public safety" argument becomes for wanting to restrict, permit or regulate it.
You're more optimistic than me. Other than Vermont (whose permitless carry stems from a 1913 Vermont Supreme Court decision that is unlikely to be repeated anywhere) all the states that are going this route are doing so with a decisive republican legislative majority. Combine that with SCOTUS letting Drake, Kachalsky and Woollard stand (albeit tacitly) I expect the status quo will reign for a long time ie states may regulate as they see fit, and that may issue states with democrat legislative majorities will continue to restrict the right with few consequences. The shall issue states are probably pretty safe even with democrat legislative majorities although, as has been seen in Colorado, infringements will occur around the margins. Even in Florida there are democrats from Palm Beach and Broward Counties that continue to propose infringements that so far have gained no traction.
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Old 02-19-2015, 10:26 AM
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I expect the status quo will reign for a long time ie states may regulate as they see fit, and that may issue states with democrat legislative majorities will continue to restrict the right with few consequences.
This would be true if not for the current legal battle for "bear arms."

Sure SCOTUS decided *not to take* some cases, but they also could have taken them and ruled that the right didn't exist. If that was their intention, it would have been easy to do. Also, at this time we already have a confirmed circuit split (with Moore in CA-7 completely finalized) so SCOTUS will have to take a case and ensure uniform jurisprudence sooner or later.

At that time, we either lose big if SCOTUS says that any regulation scheme is permissible even if it results in just one carry permit per million people, or we win big by SCOTUS copy-pasting, e.g., the really well written decision in Peruta.
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Old 02-19-2015, 12:32 PM
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For the most part I thought it a well reasoned ruling.

The only glaring fault was acceptance of "public safety" for a ban on open carry, without any investigation of how the public are endangered by open carry more than concealed.
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Old 02-19-2015, 12:34 PM
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For the most part I thought it a well reasoned ruling.

The only glaring fault was acceptance of "public safety" for a ban on open carry, without any investigation of how the public are endangered by open carry more than concealed.
And yet.....states like CA claim that covering your gun with a shirt somehow makes it more dangerous. That's how you know it's all a scam.
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Old 02-19-2015, 1:31 PM
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And yet.....states like CA claim that covering your gun with a shirt somehow makes it more dangerous. That's how you know it's all a scam.
CA doesn't like either concealed carry or open carry. Seeing guns out in the open is scary to people. Carrying guns concealed is also scary to people.

But, you can have pepper spray!
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Old 02-19-2015, 2:37 PM
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Bottom line though, Florida makes it easy to get CCW and has clearly indicated that's how they want folk to bear - they don't even hit you for accidental exposure. If we had that regime here in CA I'd be fine with that.

The judge was careful to point out the glaring differences b/w FL vs CA & NY
even if the justification were "we're sick of hearing from terrified soccer moms" the fact that FL makes CCW easy, lets them get away with banning OC.
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Old 02-19-2015, 11:41 PM
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I also thought the court would rule this way, but don't understand what you mean about the state not aiming for this outcome. They got everything they wanted despite the most lackluster presentation at orals they could possibly muster. I don't think SCOTUS will grant cert to this case if it goes that far, and I think the Florida Supreme Court will either pass or affirm this ruling. Any action on this front will have to come from the Florida legislature.

Another unfortunate consequence is the upholding of open carry exceptions as affirmative defenses which the legislature needs to address as well.
The state never presented their defense as shall-issue satisfying the right, which I thought (and was correct) was a easy winner. Instead, their argument was almost incoherent at times talking about it not infringing basically because "we say so." The court here effectively overturned the Crane decision, which was technically binding precedent (as I understand, FL Appeals courts are bound by previous appeals rulings, even different courts). Neither side argued for overturning Crane, but the court basically discarded it because it was pre-Heller.
Also, and this is a good thing for us nationally, the entire opinion was 2A based. I thought it possible they try to avoid the 2A and simply base everything on FL's RKBA amendment.
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Old 02-20-2015, 4:49 AM
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The state never presented their defense as shall-issue satisfying the right, which I thought (and was correct) was a easy winner. Instead, their argument was almost incoherent at times talking about it not infringing basically because "we say so." The court here effectively overturned the Crane decision, which was technically binding precedent (as I understand, FL Appeals courts are bound by previous appeals rulings, even different courts). Neither side argued for overturning Crane, but the court basically discarded it because it was pre-Heller.
Also, and this is a good thing for us nationally, the entire opinion was 2A based. I thought it possible they try to avoid the 2A and simply base everything on FL's RKBA amendment.
The state never presented any kind of case IMHO, and I agree their argument was pretty much incoherent, but none of that matters as the law will always be what a court says it is.

I think Florida Carry alluded to Crane in their argument that the shall issue licensing system was a privilege, and that unlicensed open carry should be the right, but the court didn't agree. I'm not sure they effectively overturned Crane - more like saying the privilege (shall issue licensing) satisfies the right as articulated by SCOTUS in Heller and McDonald.

The whole affirmative defense aspect of the decision really bothers me.
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Old 02-20-2015, 6:54 AM
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A privilege can't be a right at the same time. But if open carry were made legal, then I suppose Crane would be back in play, but under the current scheme no.
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Old 02-20-2015, 10:26 AM
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A privilege can't be a right at the same time. But if open carry were made legal, then I suppose Crane would be back in play, but under the current scheme no.
Unfortunately the court says it can, and that's what matters until this ruling gets overturned (which I don't think will happen). It is possible that the Florida legislature will pass an open carry bill (again I don't think it will happen, but more likely than the court ruling being overturned IMHO), but that will most likely make the CWFL valid for both concealed and open carry. I guess the abbreviation would then have to be WFL.
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Old 02-20-2015, 9:52 PM
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Kinda didn't agree with their statement that said basically "because SCOTUS said we could regulate conceal carry...that means we can regulate open carry too."

Cuz all of the examples that SCOTUS pointed to about long standing regulation of concealed carry being presumptively lawful was specifically because open carry was UNregulated......it was the free exercise of the right.

Yeas. I'm not seeing how that "extension" is "logical" at all.


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Oh man, this is right out of Animal Farm...



Started out with great intentions and then is skewed to fit the government agenda...

Like... You are free to go about your business, until the government decides otherwise...

Pretty much. But such is flaw in Fla law (which they clearly went with, instead of the 2A).


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I thought this was the way the court would go, even though neither Norman nor the state was aiming for this outcome. This opinion, while not everything we want, DOES support Peruta and the overall strategy of Gura/SAF, and rejects Kachalsky, Drake, and Woollard. The big question now is if the FL Supremes will take the case with this outcome, which doesn't make any waves in FL but does make some waves on the national front. If the FL Supremes pass, it can be appealed to SCOTUS.

I liked how they skewered Kachalsky, Drake, and Woollard as well. Not really happy about how they made the same mistake that Peruta did though. With luck, Mr Norman will appeal, and quickly.


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Where I disagree with you is when it comes to "regulation". As SCOTUS stated regulation or prohibition of concealed carry was presumptively lawful because of unrestricted open carry in those states.

I'm not arguing for open vs. concealed carry. I'm pointing to "permitted" vs "unrestricted". If a state wants to declare concealed the legal manner of carry.....fine. But then to place a permit requirement on top of it to do so now means you are not FREE to exercise your right. It is an infringement. There should be at least ONE unrestricted manner of carry available.

I doubt anyone can find "long standing regulations" requiring Gov't permission slips, background checks, training classes, or range qualifications at the time of the founders before one could exercise their constitutional rights.

Correct in all respects.


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This is all correct in theory, and I'm certainly not going to disagree with you. But realistically speaking do you think we will ever see this nationwide, and if so, in what time frame?

Just as soon as this hits SCOTUS.


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This decision affirms that the right to carry exists. Any such decision is in our favor, even though this is a state court.

Whether we get open carry, concealed carry, either or both, it's a huge step forward from what's been going on in some federal circuits. Baby steps.

Yes, any Ruling that affirms the Right to carry is a good one. And, the Courts do seem to be more and more accepting of this.


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We are not there yet and that's the problem.

At this time, we have to get to: "the right to carry a functional firearm outside the home is indeed a right." In the process, there will be many games that involve "open vs. concealed." Just look at our own Peruta and how Thomas wanted to avoid addressing the issue.

After we get "bear" confirmed and solidified, then and only then can we really get into the issue of open vs. concealed and the level of permitting.

I disagree. Gura (and most every else) is conceding that "the state can regulate the manner of carry" right from the very start. He, and the Fla 4th Dist Court of Appeal say that Heller says this. He, and the Fla 4th Dist Court of Appeal are wrong. I keep looking, and I keep not finding wording to this effect. But, the danger is that the courts will start to accept this line of reasoning. If the courts do, then Open Carry will be as dead as Jacob Marley. Basically, the issue can't be put off. The Courts will define "and bear" AND how to bear at the same time.

The good news is that if Mr Norman decides to appeal, the basic illogic of the 4th Dist. means that SCOTUS (whenever this gets there) will Rule in favor of the freest expression of the Right: Unlicensed Open Carry.


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  #32  
Old 02-20-2015, 10:56 PM
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Where I disagree with you is when it comes to "regulation". As SCOTUS stated regulation or prohibition of concealed carry was presumptively lawful because of unrestricted open carry in those states.

I can't recall that argument being made in either Heller or McDonald. Im not claiming to have a photographic memory though, so can you point me to the page of the argument or quote it?

Also, I just don't see SCOTUS ever accepting unrestricted carry as the core right. Even under strict scrutiny it's an easy argument that shall-issue permits are the most narrowly tailored approach to meet the states need to keep guns in public away from the mentally ill, felons, etc. Especially considering that with the balance of the court currently we would need 2 moderates to side with us for them to vote in our favor. Moderate justices are never going to agree to unrestricted carry. Unless, and this would be terrible, they decided that unrestricted long gun carry was the core right.
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Old 02-21-2015, 1:08 AM
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The good news is that if Mr Norman decides to appeal, the basic illogic of the 4th Dist. means that SCOTUS (whenever this gets there) will Rule in favor of the freest expression of the Right: Unlicensed Open Carry.

The Raisuli
What will you do if SCOTUS disagrees and says that the FL 4DCA (and by extension, Peruta) was correct?
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Old 02-21-2015, 3:18 AM
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Yeas. I'm not seeing how that "extension" is "logical" at all.





Pretty much. But such is flaw in Fla law (which they clearly went with, instead of the 2A).





I liked how they skewered Kachalsky, Drake, and Woollard as well. Not really happy about how they made the same mistake that Peruta did though. With luck, Mr Norman will appeal, and quickly.





Correct in all respects.





Just as soon as this hits SCOTUS.





Yes, any Ruling that affirms the Right to carry is a good one. And, the Courts do seem to be more and more accepting of this.





I disagree. Gura (and most every else) is conceding that "the state can regulate the manner of carry" right from the very start. He, and the Fla 4th Dist Court of Appeal say that Heller says this. He, and the Fla 4th Dist Court of Appeal are wrong. I keep looking, and I keep not finding wording to this effect. But, the danger is that the courts will start to accept this line of reasoning. If the courts do, then Open Carry will be as dead as Jacob Marley. Basically, the issue can't be put off. The Courts will define "and bear" AND how to bear at the same time.

The good news is that if Mr Norman decides to appeal, the basic illogic of the 4th Dist. means that SCOTUS (whenever this gets there) will Rule in favor of the freest expression of the Right: Unlicensed Open Carry.


The Raisuli
I think the license issue will not be decided by this case, no matter if the FL Supremes or SCOTUS takes it. Remember, Norman wants the charges against him tossed, not necessarily to get unlicensed carry. He had a permit, so getting standing against a licensing scheme may be difficult, and the court probably doesn't want to address that since it's not necessary at this point with this plaintiff.
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Old 02-21-2015, 9:05 AM
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if you need permission to do something how can it be a right?
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Old 02-21-2015, 9:52 AM
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if you need permission to do something how can it be a right?

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Old 02-21-2015, 11:03 AM
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Originally Posted by Mulay El Raisuli View Post
Gura (and most every else) is conceding that "the state can regulate the manner of carry" right from the very start. He, and the Fla 4th Dist Court of Appeal say that Heller says this. He, and the Fla 4th Dist Court of Appeal are wrong. I keep looking, and I keep not finding wording to this effect.
It comes under the "longstanding prohibitions."

Sure it would be nice to have open carry as the basic right since it's a very potent hammer to go against any jurisdiction that would tamper with the concealed carry licenses, but it would be a poor strategy to try *only* that approach at this time, particularly since we cannot even get the basic "*some* sort of carry must be allowed."

I don't see it as "throwing us under the bus." There is too much at stake to go for "all or nothing," particularly when "nothing" is a realistic possibility.
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Old 02-21-2015, 1:30 PM
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Originally Posted by Mulay El Raisuli View Post
...Gura (and most every else) is conceding that "the state can regulate the manner of carry" right from the very start. He, and the Fla 4th Dist Court of Appeal say that Heller says this. He, and the Fla 4th Dist Court of Appeal are wrong....
It's actually that you're wrong and have always read Heller incorrectly. I've explained tihs to you on a number of occasions, including here, here, here, here, and here.

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Originally Posted by Mulay El Raisuli View Post
... the danger is that the courts will start to accept this line of reasoning....
They have been accepting that line of reasoning.

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Originally Posted by Mulay El Raisuli View Post
...The good news is that if Mr Norman decides to appeal, the basic illogic of the 4th Dist. means that SCOTUS (whenever this gets there) will Rule in favor of the freest expression of the Right: Unlicensed Open Carry....
Perhaps in your fantasy world.

Your reading of Heller is, and has been, distorted by confirmation bias.

The real lawyers disagree with you. I have earned by living reading and understanding the law and appellate court decisions. I have done that in real life, in the real world for real stakes -- the lives and property of real people. I have done that under the scrutiny of judges, regulators, and other lawyers (both colleagues and opposition lawyers).

You are sitting in your easy chair imagining that you understand these things because you have found a way to twist the language of the decision so as to appear in your confused mind to give you the result you want.

I've already fully analyzed the Heller opinion in connection with Mr. Justice Scalia's citations of Chandler and Nunn as shown in the posts of mine I've linked to. I'm not going to go over that ground again.

Time will demonstrate how wrong you are. Your view was not a factor in the ruling of the Federal District Court for the District of Maryland in Woollard v. Sheridan, was not adopted by the Seventh Circuit in Moore, was not adopted by the Ninth Circuit in Peruta, most recently it was not adopted by the Florida Court of Appeals in Norman, and it will never be adopted by the Supreme Court.
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Old 02-22-2015, 7:11 PM
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For those who didn't want to read the post above, here is what Fiddletown just did to Mulay El Raisuli's argument.

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Old 02-23-2015, 4:30 AM
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Motion for appeal or rehearing by March 5.

Last edited by ccmc; 02-23-2015 at 4:47 AM.. Reason: spelling
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