Sunday, February 22, 2015

Norman Architecture

Norman v State (.pdf) was a case from Florida's 4th District Court of Appeal  where the state's ban on open carry was challenged. Eugene Volokh, Sebastian and others have written about the case approvingly, because even though it upheld the state's ban on open carry it opined that a state could ban open or concealed carry, but not both. It had to leave at least one of the two options available.

The court used a two step test, the first step determined whether the law severely intruded upon the core Right (armed self defense outside the home), and the second step what level of scrutiny should be applied. The court decided that since it only affected one mode of carry, with the other available, that it was not a severe burden on the core right. The court went on to apply a light form of intermediate scrutiny - probably a bit more strict than rational basis, but not quite as harsh as actual intermediate scrutiny. The court also declined to consider an overbreadth challenge to the open carry prohibition.

The court erred in several places, and those who think this some sort of victory are mistaken.

In determining whether the core Right was unduly burdened, the court made several leaps of faith, relying on some of the phrases from Heller that were themselves in error. The court looked to traditional or long standing restrictions to compare with Florida's law. Until Heller, all the circuit courts viewed the 2nd amendment as a collective, not an individual Right and either denied standing altogether or upheld any law that was challenged. Heller's relevant determination was a that the 2nd amendment concerned an individual Right. The courts have occasionally ruled that even if the 2nd amendment did concern an individual Right it was only a limitation on the federal government, not the states. McDonald clarified that the 2nd amendment was indeed applicable against the states. Thus the circuit courts should have, post Heller and McDonald started from scratch, as damn near every ruling on the Right to arms had been based on ideas that the Supreme Court said was invalid. Instead, the circuit courts, as well as this Florida court, have latched on to what should be considered dicta from Heller and used that idea of "long standing" to justify all the court's decisions which were based on fundamental errors of law.

As I said, the court embraced the passages in Heller where Scalia needlessly and mistakenly claimed that laws prohibited concealed carry were not automatically suspect and flipped it around to presume that if concealed carry could be lawfully regulated then open carry must therefore be able to be lawfully regulated. Of course, by regulated they also include prohibited.

In regards to Florida's Constitution and its Right to Arms provision, it's flawed. It somehow claims, as do several other states, that the legislature has the power to regulate the manner of carry. The court failed to realize this deficiency and took it as is. It went on to examine Florida's statues concerning carry and determined that since Florida's "shall issue" law was so lenient (compared with other states) that the core Right of carrying a weapon for defense outside of the home was not unduly burdened by the prohibition on open carry.

A note here. This is Florida. The court is based in West Palm Beach. Have you ever been to Florida? Do you have any idea how hot and muggy it gets down there? Now, in July, a few miles inland of Miami Beach, imagine how you'd dress to conceal a full size 1911. Go ahead. I'll wait. Just think about it. Now, as you were thinking about it - merely thinking about it, did you find yourself starting to perspire? In Florida's climate (as well as others) it's burdensome to wear the amount and/or type of garments necessary to conceal a full sized pistol, or for some even a medium sized pistol. That's something that should have been brought up if it wasn't, and it's something the court should have considered before it pronounced that concealed carry is just dandy. Unless of course the court feels that hyperthermia is not an unreasonable burden for us gun nuts to endure.

In determining scrutiny the court examined what everyone else did and went with that, more or less. They stated they'd use intermediate scrutiny, but in application it seemed a bit lighter than that. For example it accepted, without much debate it seemed, the government's assertion that the law was necessary for public safety. The court starts off its intermediate scrutiny review on the premise that if the state did not regulate a person's Right to carry it would be harmful to the public safety of the state. It would have been preferable to ask for the government to elaborate on that a bit instead of just accepting it as a foregone conclusion. That in itself renders this intermediate scrutiny test not all that different from rational basis. The second part of their intermediate scrutiny seems to have amounted to little more than looking at the statute and proclaiming "Ayup, that's public safety language rietch there!" and declaring the intermediate scrutiny satisfied.

To make it clear, the court's reasoning is that if people are not regulated by the legislature then carrying a weapon is a risk to public safety. You are not to be trusted to carry a weapon safely unless the government tells you how.

The court claimed the overbreadth challenge would only be applicable if strict scrutiny were utilized, so they passed on that one. They shouldn't have so lightly dismissed it, as a narrowly tailored regulatory scheme focused on unprotected activities that spills over and burdens protected activities always merits examination. I think in doing so they would have found that an overbreadth challenge would have been successful in invalidating the law, which is likely why they declined.

The ruling seemed schizophrenic in spots, as they spoke disapprovingly of other courts giving too much deference to the legislature, and then turned around and themselves gave too much deference to the legislature.

But in the end they found that banning open carry was okey dokey as long as a permissive concealed carry scheme was in place. This is why Volokh and Sebastian view this as some sort of favorable ruling - a court said the government can only ban 1 form of carry.

That however was not the most important conclusion from this decision. The conclusion was that the state has the power to regulate both modes of carry as long as one regulatory scheme is reasonably permissive. A state may,according to this court's rationale, ban both open and concealed carry without a permit, so long as either open or concealed carry has a "shall issue" or similar licensing system in effect.

Traditionally courts have deemed it acceptable for a state to ban concealed carry altogether. They have done so on the premise that the 2nd amendment did not concern an individual Right, and various state constitutions have clauses in them that allows the legislature to regulate the manner of carry.

Constitutions are not perfect. Some are in fact quite flawed. States such as Florida and Colorado and North Carolina and Texas have limiting provisions that claim the state may impose restrictions upon the manner and method of carry. Since the 2nd amendment was until recently not seen as an impediment, courts looked to the state constitutions and upon finding such a provision ruled that concealed carry or open carry or carry altogether could be prohibited by law.

But what is worth noting is that in states where courts upheld the bans on concealed carry, unregulated open carry was an option. No permits or licenses were required. That meant if a person was too impoverished to pay for the permit and the training classes most permit systems require, they could still legally carry openly.

In this instance the reverse has happened; the courts viewed a permit system as an acceptable way to carry legally. Because someone could apply for a permit to carry concealed then the state needn't have any other option available. A Florida CCW permit costs around $112, not including the cost of training (another $75 or so) which is a prerequisite. For some people this is not a trivial sum. The court in Florida has effectively put a price on the ability to carry a weapon outside the home, that price being whatever the legislature decides to set the permit fees at, along with the market price of the required instruction.

The federal constitution suffers no such defect as does Florida's (and several other states). It does not differentiate betwixt open or concealed carry, nor does it invest any powers in a legislative body to regulate the same. To divide carry into two parts and claim that prohibiting one is acceptable so long as the other is not completely obliterated is a flawed method of interpretation. The only purpose is to justify a blatant intrusion of a Right under the pretense of lawful action. It is equivalent to dividing "the press" into two categories, say professional journalists and amateur journalists, and ruling that one category may be banned altogether so long as a licensing system exists to allow the other.

The people who assert this is a positive ruling do so because they believe it's a step in an incremental strategy to gain wider recognition of the Right to arms. But they are incorrect. That the court agrees carrying weapons outside the home is part of the Right to arms is not the significant part of this ruling. That a state may ban one and heavily regulate the other manner of carry unrestrained by the 2nd amendment is the relevant premise of this decision. If it is not countered, if it is accepted amongst the other circuits, it may - may - lead to a slight easing of permit requirements in some states. Then again it may not. What it would do is enhance the regulatory power of the state where carrying arms is concerned, and most ominously if accepted within the gun culture, it would lead to confusing the Right to carry with a permitting process, and accepting a privilege system instead of demanding that a Right be respected.

This premise of state regulation of a Right cannot be built upon positively except by those who do view a permitting process as the final step. There is no way to accept this ruling and use it in whole or part to push for a restraint upon state power where carrying of arms is concerned. This ruling, both in method and result, is flawed and should be denounced, not upheld as a step on the way to a greater recognition of Rights. Hopefully this will be appealed and the Florida Supreme Court will be presented with persuasive arguments as to why the state has no legitimate authority to interfere with carry, concealed or open. Until then, this was a loss. Not one that we can't recover from as long as we recognize it for what it is, but a loss indeed.

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