Florida Appeals Court Says Open Carry Ban Is Unconstitutional

Second Amendment activists and pro-2A politicians like Gov. Ron DeSantis have been trying to get Florida’s ban on openly carried firearms repealed for several years, but thanks to a handful of Republicans in leadership positions in the state Senate those efforts have been stymied. Now a Florida appellate court has given Second Amendment advocates more legal ammunition in their quest by declaring the ban a violation of the right to keep and bear arms. 

The decision in McDaniels v. Florida is pretty lengthy, but the bottom line is this:

Florida law generally makes it a crime for an ordinary, lawabiding, adult citizen to carry a firearm openly in public. Stanley Victor McDaniels was convicted under that law, and he nowappeals. He contends that this open carry ban is incompatible with the Second Amendment’s guarantee of the right to bear arms. Guided by the Constitution’s text and this Nation’s historical tradition of firearm regulation, we agree. We therefore declare the law unconstitutional, vacate McDaniels’s conviction, and reverse his sentence.

McDaniels specifically set out to challenge the law by standing on a street corner in downtown Pensacola on Independence Day in 2022, waving a copy of the Constitution with a pistol openly carried in a holster. Police and prosecutors obliged by arresting and charging him with a second-degree misdemeanor, and McDaniels was convicted and sentenced to probation and community service. 

The appellate court concluded that bearing arms, either openly or concealed, does fit within the confines of the Second Amendment, so it was up to the state of Florida to demonstrate a national tradition of banning the practice. The appellate court concluded that Florida:

… 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. At most, it has pointed to laws regulating the method or manner of carry, but those laws left intact the ability to bear arms openly for peaceable purposes. By contrast, Florida’s Open Carry Ban eliminates that option altogether and thus extends far beyond anything recognized in our historical tradition. 

The panel found far more historical evidence for banning or regulating the concealed carry of firearms, though even then most of the statutes cited by the state of Florida were adopted long after the Second Amendment’s ratification in 1791. 

Now Florida Attorney General James Uthmeier has tough decision to make. Uthmeier has declined to defend Florida’s ban on gun sales to adults under the age of 21, and he may very well believe that Florida’s open carry ban is equally indefensible. But today’s decision isn’t binding statewide, so if he decides not to appeal to the Florida Supreme Court then the open carry ban will still be in place throughout much of the state. 

I think there are good reasons for Uthmeier to appeal, even though I concur with the appellate court’s decision. Bringing this to the Florida Supreme Court may be the fastest way to get the state’s open carry ban removed from statute, but it also makes no sense to have a law that can be enforced in only some parts of the state. 

At the same time, though, gun owners and officials like DeSantis need to keep up the pressure on Senate President Ben Albritton to allow a repeal bill to receive a vote from the full Senate next session. The law is clearly on the side of those seeking to repeal Florida’s open carry ban, and Albritton’s refusal to let the bill get a full hearing and vote would be even more politically and morally repugnant now that the First District Court of Appeal has weighed in and declared the ban unconstitutional. 

Editor’s Note: The radical left (and some squishes on the right) will stop at nothing to enact and uphold their gun control agenda and strip us of our Second Amendment rights.

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