On Sept. 25, Florida’s First District Court of Appeal three judge panel ruled that the state statute banning open carry was unconstitutional. This decision now makes open carry legal in Florida.
Judge Stephanie Ray, writing for the panel, stated that “the Constitution protects the right to carry arms openly for self-defense. Florida’s Open Carry Ban cannot be reconciled with that guarantee.”
Before this decision, open-carry was illegal under Florida Statute §790.053, which provided that “it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.”
This ruling marks a larger national shift in Second Amendment legal philosophy after the Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen.
Prior to Bruen, interpretation of the Second Amendment was primarily shaped by the landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago. In Heller, the Supreme Court ruled that the Second Amendment guaranteed an individual right to bear arms, and in McDonald, it held that this right also applies to the states. What arose from these two decisions was a “two-step” framework adopted by lower courts, in which judges first looked to see whether a law regulated conduct protected by the Second Amendment. If it did, they then applied means-end scrutiny to balance the Government’s interest with the Constitutional right. Nonetheless, the Bruen decision rejects this two-step framework.
Justice Clarence Thomas, who authored the majority opinion, stated that the two-step framework was “one step too many.” Rather, if a challenged law is within the plain text of the Second Amendment, then a court must decide whether the law is “consistent with the Nation’s historical tradition of firearm regulation.” For a law to align with historical practice, it must have a historical analogue that is similar in both how and why the regulation burdens an individual.
As such, the decision in Florida’s open carry case rested on the fact that there are no historical analogues to an open carry ban. Judge Ray wrote that “[the State] identifies no Founding-era law that broadly prohibited the open carry of firearms in public. Nor does it cite any historical regulation imposing a burden or justification comparable to Florida’s Open Carry Ban.”
Open carry is only one piece of Florida’s sprawling gun law framework. The Bruen decision may well ripple into other key restrictions, including red flag, sensitive place and felony prohibiter laws.
Red Flag Laws
One area of interest is the state’s Red Flag law. Passed in the aftermath of the mass shooting at Marjory Stoneman Douglas High School, Florida’s Red Flag Law allows law enforcement to petition a court for a Risk Protection Order (RPO) if there is reason to believe an individual is a danger to themself or others. If granted, the RPO requires that the person temporarily surrender any firearms or ammunition they own and prohibits them from purchasing any new firearms for up to one year.
This law has recently been the subject of scrutiny, with Governor Ron DeSantis expressing after his State of the State address in March that the process of issuing RPOs is “…not the way due process works.”
Whether Florida’s Red Flag Law satisfies the Bruen framework has become clearer after a recent Supreme Court decision addressing danger-based firearm restrictions.
In United States v. Rahimi, the Supreme Court ruled that the disarmament provision of Domestic Violence Restraining Orders was constitutional, overturning a Fifth Circuit ruling. The Court observed that “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” These so-called “going armed” laws prohibited carrying weapons for the purpose of terrorizing the public.
Accordingly, if a constitutional challenge to Florida’s Red Flag law were to arise, it would most likely be pursued under the Fourteenth Amendment’s Due Process Clause, rather than based on the Second Amendment, given concerns about the procedures for temporarily depriving individuals of firearms without a prior hearing.
Sensitive Place Restrictions
But there are areas where open carry is restricted. These are referred to as “sensitive places,” locations where guns can be prohibited without violating the Second Amendment. Sensitive places were first addressed in Heller, which recognized the validity of laws preventing carrying firearms in places “such as schools and government buildings.” Bruen also recognized these places to include “legislative assemblies, polling places, and courthouses.”
Since the Supreme Court has ruled that these areas are sensitive places in which carry may be restricted, challenges to similar restrictions are unlikely to succeed.
Under Florida law, firearms are also banned in sensitive locations such as police stations, airports, bars and athletic events that are unrelated to firearms.
There is strong historical grounding for categorizing bars as sensitive places. Several colonial-era militia regulations prohibited the sale of liquor to members of the militia on duty and prevented them from meeting within half a mile of a tavern. These militia regulations were cited by a Ninth Circuit panel in Wolford v. Lopez to justify a Hawaii state law designating several locations as sensitive places. However, the scope of what qualifies as a sensitive place will soon be tested, as on October 3rd, the Supreme Court agreed to review the Ninth Circuit’s decision.
The Supreme Court’s review may center on how far historical firearm regulations can be compared to restrictions on modern settings such as stadiums, amusement parks, zoos, museums and libraries. In Wolford, the Ninth Circuit panel upheld Hawaii’s law by comparing the restrictions for these venues to historical laws regulating carry in “ball rooms,” “social parties” and “assembly.” The key concern, however, is whether the Court will recognize a meaningful difference between private social events and public spaces. The outcome in Wolford could therefore guide how Florida, home to some of the nation’s busiest tourist destinations, defines the limits of “sensitive places” as it balances public carry rights with safety concerns in parks and entertainment venues.
Felony Prohibitor Laws
Under Florida law, individuals previously convicted of a felony, whether in Florida or another state, are prohibited from owning or purchasing firearms. Historical examples show that legislatures have long disarmed persons considered dangerous, a principle that the Supreme Court reaffirmed in Rahimi. This supports the continued logic of restrictions on those convicted of violent crimes. However, the constitutionality of removing nonviolent felons’ guns remains uncertain.
Even before Bruen, some judges argued that prohibiting nonviolent felons from owning firearms was unconstitutional. In a 2019 dissent in a Seventh Circuit panel, then-Judge Amy Coney Barrett wrote that “founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.” Rather, such measures were reserved for those regarded as “dangerous.”
The arguments for disarming nonviolent felons seem to be weak. A dissenting judge in a Third Circuit panel reasoned that historical laws disarming minority groups like African Americans, Catholics and Native Americans are similar to modern felon gun bans. Yet, as Bruen cautioned, “not all history is created equal.” Historical examples of firearm regulation rooted in discrimination represent constitutional failures, not tradition courts should preserve. How courts fix the distinction between violent and nonviolent felons will determine whether Florida’s felony prohibitor law remains enforceable under the post-Bruen framework.
What’s Next
The Bruen ruling has opened the door for renewed scrutiny of a wide range of gun policies, from felony prohibitor laws to red flag measures and sensitive place restrictions. While it remains to be seen how future courts will interpret these issues, lawmakers may need to anticipate such challenges when drafting or revising legislation. For now, Florida’s gun regulations and those across the nation remain in a period of uncertainty.
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