Two More Favorable Court Rulings

Court Gavel

Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms. This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe Huffman for the tipoff.

The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.

The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunate tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.

18 thoughts on “Two More Favorable Court Rulings”

  1. The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

    Am I wrong to interpret this to mean that the judge in this case is effectively ruling that it is unlawful for polities to outright prohibit carry without a “license” that the common man cannot hope to get?

    In more specific terms, did this judge just rule that what NYC, NJ, and MD all do in regards to the carrying of firearms is unconstitutional?

  2. No. The Florida case was not a win for us. It upheld the very mistaken belief that a state has the power to prohibit the exercise of a Right. Claiming that it has to allow one form or the other is no victory. Imagine if a court said that you could talk about politics in your home, or with a state issued license whisper about politics in a private club, but could not talk about politics in a public park where passers by could overhear you. You wouldn’t try to claim that was a victory for freedom of speech would you?

    The Florida constitution, among others, is mistaken in ascribing power to the state to regulate the manner of carry. The 2nd amendment has no such error in it, and going by its applicability via the 14th, the judge erred in not striking down Florida’s ban. If there was a concerted effort on the part of allegedly pro-gunowner lawyers to achieve this result instead of going for an outright dismissal of the notion that states can bar one form of carry or the other, then we need to stop paying them for their services and demand for a refund.

    1. No. The Florida case was not a win for us. It upheld the very mistaken belief that a state has the power to prohibit the exercise of a Right. Claiming that it has to allow one form or the other is no victory.

      I understand your position, and I agree with you in principle.

      Still, I believe firmly that as a practical point, making it practical for the average man to exercise his right to bear arms has been the greatest victory we have won in the last century. It has involved a lot of hard work, and it has been a gradual and iterative process. Like it or not, jurisprudence such as this is necessary for us to continue this process: It’s likely the only way we are going to get positive decisions out of the first, second, and third Federal Circuits, and it is thus the only way we are likely going to be able to force states in these regions to grant concealed carry licenses on a shall-issue basis.

      Whether or not it meshes with your view of the text/intent/spirit/etc. of the Second Amendment (I know that it doesn’t for me on a philosophical level), the hard fact of the matter is that we are in a cultural war with the antis. As long as they are able to continue to deny the right to bear arms within the borders of states they control, we will NEVER be able to make legislative progress in those states, and those moving from these states will continue to bring anti-gun culture with them.

      In other words, we need to bring the cultural battles to the strongholds of our political opponents so as to prevent them from bringing the fight to us.

      Thus I have the following question for you: Would you rather have this particular kind of jurisprudence (i.e. “the right to bear arms must be respected in at least one form”) become nationwide, thus allowing us to judicially force shall-issue without needs-based tests in NY/MD/DC/CA/HI/NJ/etc., or would you prefer to have them continue to bring the fight to us in the form of ballot initiates like they did in WA (and are priming to do in NV, and other states)?

    2. Every 2nd Amendment attorney I’ve ever spoken with thinks this is the right tactic to get as broad protection as possible out of the courts, even ones whose wookie suits are far more thick and luxuriant than mine.

      We’d all like the courts to to rule the right to carry is unqualified, but we also have to deal with nearly two centuries of case law that said concealed carry could be restricted as long as open carry was legal, along with a federal court system that’s relatively hostile to the right on a bad day, and lukewarm to it on a good one. It would take a very good day to get better rulings, and we need to build more case law first.

      1. This.

        There’s a lot of really shitty case law that currently holds sway, and given the typical judicial aversion to setting sweeping precedent with any one decision, there is no practical way to get good case law without working up case law that is gradually less and less shitty.

  3. We all agree it shouldn’t be this way, but it is. We have to understand that this is the first step; get Carry recognized to some extent at the Federal Level (because it really hasn’t up to now), then expand it in the decades to come.

    We’re not going to see every Judge in the nation fall to his knees tomorrow and realize that the 2nd means what the 2nd means. There’s never going to be a single court case or law where after we’ll all cheer, the triumphant music will play, and we’ll fade to the credits. This is a generational fight. And that implies that we must raise generations to fight it.

    Make it easier to buy, easier to own, easier to carry. We normalize gun ownership again, and the antis are done. We can then get the final restorative changes into place. But we must deny them ownership of the cultural norm. And whatever makes ownership easier and more overt, helps us.

    I hold the same opinions of every gun law in existence that Publicola does, but we don’t yet have the national support, the local influence on the relevant political parties, nor the judicial backup needed to drive out all these useless laws at this point.

  4. HSR47,
    Your question presumes that it’s only a choice between having the privilege of carry recognized by the courts, or having ballot initiatives promoting anti-gunowner laws. I don’t think it is. I think it’s possible to have the courts respect the actual Right, which would consequently make it easier to fight ballot measures harmful to us. (I also cheated on the Kobayashi Maru) But this case in question does not do anything positive, let alone make ballot measures more difficult for the anti’s.

    The culture is what this type of ruling endangers. A permit to carry, even if it has “shall issue” on it, is a perversion of the Right to carry. If you have a permit or a license, you’re not exercising a Right – you’re enjoying a privilege. That is the danger of licenses and permits – they sucker folks into thinking it’s a Right, while conditioning them to accept it as a privilege.

    As to the culture – I disagree with where you’re going. If laws could eradicate a culture then the Disarming Act and its progeny would have wiped out what y’all call the gun culture, & likely prevented the American revolution in the first place. It’s long and involved and consequently I’m trying to mesh together a post on it, but the cultural war is an independent effort of the legal battles. A law won’t destroy the culture, but an idea can. And the idea that it’s okey dokey to regulate carry as long as one form is not altogether prohibited is a very bad idea. I see no progression from this court decision to having the Right to carry (open or concealed, with no permit or license required)respected. It was not favorable in conclusion nor was it acceptable in method.

    Then I’d advise you to re-examine the legal circles you’re traveling in. I could very well be mistaken, but I cannot see hwo this case can lead us to having the courts declare that restrictions on the Right to carry (like permits or licenses) are off limits. Odds are those attorneys are not on the same side as I am (i.e. they’re fine with permits and licensing in theory as well as practice).

    I understand that the courts ain’t our friends, but my beef is that folks like you & Volokh and presumably those lawyers you spoke of are trying to spin this as a positive step. It’s not. Unless you think “shall issue” is the end all be all of carrying, then this ruling was harmful to the notion of carrying being a Right instead of a privilege.

    I’ll try not to repeat myself (just like I’ll try to be brief) but cementing the notion that “shall issue’ somehow involves the Right to carry is dangerous to us as a culture, moreso than any laws that make it harder to carry or even own.

    Court cases that aspire to some greater end are built in steps. I agree. But those steps must lead to the desired place. This isn’t a step where the end will be desirable. this step by the court affirms that a legislature can regulate the manner of carry. The idea that they must ‘allow” either open or concealed is not the most important part of this case – it’s that whatever manner they “allow” can be regulated so long as it does not totally eliminate carry. In other rulings where open carry was present, no restrictions were in place (i.e. no license or permit). In this one, the mode of carry is regulated and they found that because the regulations weren’t as bad as in NY or Cali then it was acceptable, so open carry could be banned altogether. A court saying that the only method of legal carry can be licensed and regulated by the state is NOT a positive direction for gunowners who want the Right respected. It’s only a positive for folks that think ‘shall issue” is somehow the exercise of a Right.

    I’ve only read the decision. I have no idea what the plaintiffs & defendant argued. But this decision cannot be built upon to further the Right to carry. It could be built on to make the privilege of carry akin to an entitlement, but in the long run that will do us more harm than good.

    1. Most everyone would like to see Constitutional Carry. That’s why it’s been labeled that.

      The strategy is not to challenge licensing until the courts at least accept that there’s a right. That was Heller. Next step, get it recognized as a fundamental right, and applicable to the states through the 14th Amendment. That was McDonald. Then get a right to carry a firearm outside the home for self-defense. We haven’t had that case yet.

      In all cases licensing hasn’t been challenged. That’s not because anyone likes licensing, it’s because you don’t ask the courts to eat the whole apple in one bite. You can say they should, but the experts believe they won’t, and we lose the whole thing.

      Most of them believe this is a decades long project. I was told by one prominent Second Amendment attorney in his 60s that he did not believe he would live to see most of the Second Amendment well-protected by the courts. He said I might, and that’s assuming everything goes according the plan, which it probably won’t in some cases. But the goal is to get court protections as close to what we’d find ideal as we can, without pushing so far so fast we lose everything.

  5. Btw, y’all ever been in west Palm Beach (where this court is located) in July? Can you imagine carrying concealed a full sized 1911 down there? This ruling shows the court not only has no notion of what the Right to carry is, but they somehow think hyperthermia is a reasonable burden on us gun nuts. :)

    1. I do agree with that. The only real differentiating factor between open and concealed should be a warm or cold day. The argument over which one is “correct” is pointless. Carry is Carry. I think Volokh pointed this illusory difference to some extent in a recent article where he hypothesizes carrying concealed, yet wearing a T-Shirt that says you’re carrying concealed.

      We may however have to protect Open Carry where it’s currently available, expand it where possible, and push each state towards ConCarry. I don’t see local, state or Federal judges getting us there.

      You may be right that this is not a great result for us, and for the most part, I agree. But as you said, if the Disarming Acts didn’t work, then I don’t see how this can. What can do it is a tipping point level of restriction whereby our culture is not able to expand.

      The Court appears to have ruled on what the law currently says. In that case, we have to change the law. We’re not the gay rights crowd; we can’t rely on a judge who’ll find our way because he’s sympathetic. We’d have to start getting 2nd Amendment friendly judges on the bench, and we’re not even close to thinking that way, let alone doing it (a flaw in the gun rights movement).

  6. I think all of us need to understand that not only is the general culture evolving, but so is the gun culture. Go back 20 years, and many gun people didn’t even think Carry should be allowed, permit or not. Many didn’t think NFA items should be available. Some call Reagan a great 2nd Amendment supporter, but he also spoke in favor of banning some common rifles.

    Both have changed drastically in the last two decades; the NFA item only really appearing on the radar of the gun rights community in the last 5-6 years.

    Constitutional Carry has also become the buzzword in the last 5 years. The gun culture is fortunately moving relatively quickly through these phases, and we’ll see all the more push towards a closer representation of the original 2nd Amendment as time goes on, provided we do our part in driving the culture. I think more of us should be doing the same not just with UBC, but with any background check systems.

    We need to keep pushing our own community, which will push the overall lobbying trend, which will change the culture and the laws around gun rights. Then we’ll have decisions beyond the Florida one that correct its failings.

  7. You might want to consider consulting Florida Carry, which litigated the Norman case. They did not consider it much of a victory.

  8. Sebastian,
    I have problems with the way the noted, respected and revered 2nd Amendment attorneys have handled things since the 1980’s. Until a non 2nd amendment attorney (Gura) stepped up to the plate folks who wanted to sacrifice chickens in religious rites were more successful in the courts than the 2nd Amendment attorneys were. (& even Gura made some errors which is & will cause us problems). They have always seemed too cautious and any strategy was not pursued to any great degree. It may take several decades, but that’s in large part due to their timid approach. If they were more aggressive we’d be close to having the Right respected in under 2 decades, and the clock would have started ticking in the 1990’s. If you’re claiming that they have gotten together & actually agreed to try something then that’s cool for them. However my original point stands:

    This wasn’t a favorable ruling. It did not recognize a Right to carry outside the home, but a privilege. Building this premise up to Constitutional carry is not possible as it moves things in the opposite direction.

    Besides, if a right to carry outside the home was the next step, they could have easily challenged the NP ban on carry before congress did away with it. That was ripe as even Kennedy mentioned protection from bears during Heller’s oral arguments.

    If there is a concerted effort – and given the way the big players have done things since the 80’s I’m skeptical – then this case was not a step forward unless the ultimate goal is “shall issue” and not constitutional carry. I think you’d be surprised how many gunowners and prominent pro-2A types are fine with a liberal permit system & don’t want anything else.

  9. Now that I’ve had time to read the whole ruling, rather than just a summary, I’m more sympathetic to the position that this was a loss. The court did mention licensing, which is something I’d like to be rid of. Some of the language the court used to reach the decision in open carry are likewise unhelpful. But the court did not reach into the reasonableness of Florida’s licensing scheme. That could still be wholly unconstitutional in a case brought at a later time with the right plaintiff. But this ruling would mean, if upheld, that Florida could never repeal or probably even restrict it’s current regime, and if the same reasoning used in this case were applied in another jurisdiction, or even the Supreme Court, it would be a huge boost to freedom in states like California, New Jersey, New York, Massachusetts, Maryland and Hawaii.

  10. So I’m assuming an appeal of this is on the books? What’s the chances for it, given the current Florida Supreme Court?

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