The Florida Supreme Court just handed the US Supreme Court a Second Amendment case it can’t refuse.
In a 4-2-0 decision, the Florida Supreme Court upheld that state’s ban on openly carrying firearms which was enacted in 1987. The case is Dale Norman v. State of Florida.
By upholding the ban the Florida Supreme Court managed to do what no other Federal court of appeals or state high court has done and that is to publish a decision which conflicts with every one of those courts and which conflicts with the United States Supreme Court decisions in Baldwin, Heller, McDonald and Caetano.
The US Supreme Court does not like to be slapped in the face. Nearly one year ago today a unanimous US Supreme Court reversed and remanded a unanimous decision of the Massachusetts high court which had held that electric stun guns are not protected by the Second Amendment because they did not exist in 1791 when the Second Amendment was enacted.
This directly conflicted with the Heller decision and did so in an arrogant way. Even the justices who do not think that the Second Amendment is an individual right did not dissent to the US high court reversing and remanding back to the Massachusetts high court. Justices may think that a prior decision is wrong but they were unified in upholding the authority of the Court to be the court which decides what the US Constitution means.
The US Supreme Court (SCOTUS) rarely decides to hear a case simply because a lower court decision was wrong. Instead, SCOTUS views itself as a court which resolves conclusions in Federal law between the Federal circuits and the interpretation of Federal law by state courts of last resort (usually the state supreme court). Various justices over the years have given interviews where they express amazement at how many lawyers are seemingly unaware of this fact.
For example, when SCOTUS decided to hear the appeal in District of Columbia v. Heller there was a three way split among the Federal courts. The 9th circuit court of appeals had held that the Second Amendment is not an individual right whereas the D.C., and Fifth circuit court of appeals had published decisions in which it held that the Second Amendment is an individual right.
SCOTUS granted the cert petition in Heller and held that the Second Amendment is an individual right.
Importantly, the Heller decision also said that concealed carry is not a right and that Open Carry is the right guaranteed by the Constitution.
Until now, every Federal court of appeals and every state court of last resort has held that concealed carry is not a right and/or there is no Second Amendment right to carry a handgun outside of one’s home. Some have assumed, but not decided, that there is a right to carry a handgun concealed outside of the home but upheld the various “good cause” requirements to be issued a concealed carry license.
Should Mr. Norman decide to file a cert petition with the US Supreme Court then his will be the first cert petition which satisfies SCOTUS Rule 10 – The US Supreme Court rule which states that the purpose of SCOTUS is not to correct the mistakes of the lower courts but is, instead, to resolve splits on Federal law. SCOTUS does not always require a split, in some cases such as patent cases there can be no circuit split because only one Federal circuit decides patent cases. There are other times when SCOTUS will hear a case which does not present a split because it presents an exceptional case of national importance.
The question is will SCOTUS simply issue a per curiam which reverses and remands the Norman case back to the Florida Supreme Court for a do-over or will it grant the cert petition and decide the case on the merits. Those of us who support the Second Amendment hope that it is the latter.
Once the Florida Supreme Court decision is final, Mr. Norman has 90 days to either file his cert petition or ask SCOTUS for an extension of time to file his cert petition.
I sincerely hope that he does. It will likely be a year or more before my California Open Carry appeal is decided by the 9th circuit court of appeals. Hopefully I will win and it will be the State of California which files the cert petition but if I lose and Mr. Norman does not appeal to the US Supreme Court then the SCOTUS Rule 10 splits remain and I only need one split for my cert petition to be granted.
