Featured The Supremes Decline to Hear Two More Second Amendment Cases Adam Kraut November 28, 2017 Join the Conversation On Monday, in what is a seemingly continuing trend, the Supreme Court issued orders from its November 21st conference where it denied certiorari in two Second Amendment related cases. Earlier this year, the Supreme Court denied certiorari in two other Second Amendment cases, which were previously discussed here. Unlike last time, there was no dissenting opinion from any of the justices. THE CHALLENGE TO FLORIDA'S BAN ON OPEN CARRY Link to decision is below. Likely the lesser known of the two, Norman v. Florida was an appeal from the Florida Supreme Court challenging the state's general ban on the open carry of firearms. In general, open carry in Florida is prohibited, with the exception of sixteen specified exemptions. Except as otherwise provided by law…it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. F.S.A. § 790.053 So How Did Norman Become a Litigant? In February of 2012, Dale Lee Norman was granted a Florida Concealed Weapon License. Shortly after receiving it, he set off from his house and was seen walking down Route 1 with an uncovered firearm on his hip, which prompted a concerned citizen (or busybody) to call the police. After arriving, the police noted that Norman was open carrying and he was subsequently charged with violating the law. After pleading not guilty and going to trial, Norman was found guilty by a jury of his peers. However, the court certified three important questions which arose out of Norman's case, as they would have statewide application, for the appellate court to review. We're only going to focus on the larger overarching one, that being “[i]s Florida’s statutory scheme related to the open carry of firearms constitutional?” Florida Supreme Court Review The Florida Supreme Court first looked to Florida's statutes. It noted that the law created a “shall issue” permitting scheme, which would leave no discretion to the issuing authority. Simply put, you either met the criteria to be issued a license or you did not. The criteria include requirements like “the applicant is not a convicted felon, has not been committed to a mental institution, and has demonstrated competence with handling a firearm.” After determining that pretty much anyone other than a prohibited person could obtain a permit, it moved on to the next part of its analysis. The Court then proceeded to examine the history and scope of the rights provided by the Second Amendment and the Florida Constitution. It briefly reviewed the holdings in District of Columbia v. Heller and McDonald v. City of Chicago, which I hope you know by now. If not, Heller confirmed there was an individual right to keep and bear arms and McDonald incorporated that right by the Due Process Clause of the 14th Amendment against the states. The Court continued its analysis looking at the various Federal Circuit Court decisions regarding the carrying of firearms, finding that several circuits have upheld “good cause” provisions. In examining the Florida Constitution, the Court found that the right to keep and bear arms was not an absolute right. After determining that intermediate scrutiny was the appropriate level to apply, the Court engaged in an analysis to see whether the law would survive constitutional scrutiny. For those that don't recall, under intermediate scrutiny, a law must further an important government interest and do so by means that are substantially related to that interest. Analyzing the law under the Second Amendment, the Court determined that the State had an important interest in “ensuring public safety by reducing firearm-related crime…” It found that the “State’s prohibition on openly carrying firearms in public with specified exceptions—such as authorizing the open carrying of guns to and from and during lawful recreational activities— while still permitting those guns to be carried, albeit in a concealed manner, reasonably fits the State’s important government interests of public safety and reducing gun-related violence.” It also concluded that the law did not violate the Florida constitutional right to keep and bear arms. SCOTUS Denied Certiorari…Now What? Well, unfortunately for you Floridians and anyone visiting, the “open carry ban” remains in effect, with the Florida Supreme Court decision being the final word on the matter. Of course, the Florida Legislature could always rescind the ban, however, that does not seem likely. MARYLAND'S BAN ON “ASSAULT WEAPONS” Perhaps more far-reaching in its implications, was the Court's refusal to hear the 4th Circuit's en banc decision in Kolbe v. Hogan. The Fourth Circuit Court of appeals covers Maryland, West Virginia, Virginia, North Carolina and South Carolina. Original Challenge and Initial Review Kolbe had challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s, other military-style rifles and shotguns, as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment and several other provisions. The District Court (lowest level) expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. Once appealed to the 4th Circuit, the three-judge panel, which originally heard the case, found that the Second Amendment protected the rifles and magazines that were banned by the FSA. Of equal importance, was that the judges also thought a strict scrutiny analysis was proper for such a challenge. Strict scrutiny requires the law must further a compelling governmental interest and must have been narrowly tailored to achieve that interest. Simply put, the law must be written in the least restrictive means possible in order to further a compelling governmental interest. En Banc The 4th Circuit Said What? Unfortunately, the 4th Circuit reheard the case en banc (as a whole), which vacated the panel's decision. En banc, the court declared that …contrary to the now-vacated decision of our prior panel — the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’ — ‘weapons that are most useful in military service’ — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. What Does This Mean? As you may have guessed, the 4th Circuit (en banc) upheld the district court's prior determination that the FSA was constitutional. Given the Supreme Court's refusal to hear the appeal, this means several things. For Marylanders, they are still subject to the same restrictions which were imposed on them with the passage of the law back in 2013. The more troubling aspect is that the 4th Circuit, which covers five different states, has stated that restrictions on certain types of firearms is constitutionally permissible. It opens the door for the other states, within the 4th Circuit, to regulate “assault weapons” in a manner that is inconsistent with what most of us would believe is constitutionally permissible. ABOUT THE AUTHOR Adam Kraut is a firearms law attorney practicing in southeastern PA and across the country federally. He is back on the ballot for the NRA Board of Directors in 2018 and has introduced a series of proposed by-law changes to restore accountability to the members. Adam hosts The Legal Brief, a show dedicated to crushing the various myths and misinformation around various areas of the gun world. He also was the general manager of a gun store in the suburbs of Philadelphia. 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