The Florida Supreme Court upheld last week the state’s ban on openly carrying firearms, according to the Associated Press.
The court ruled in a 4-2 decision that the law is constitutional and does not impede a citizen’s Second Amendment right to keep and bear arms.
The controversy began when Dale Norman – a concealed carry holder – was arrested by Fort Pierce police in 2012 because his gun was visible as he walked down a sidewalk. He was convicted of a misdemeanor, appealed the conviction, and followed the appeal process all the way to the Florida Supreme Court.
The court reasoned that because the ban on open carry regulates “only one manner of bearing arms,” it “does not impair the exercise of the fundamental right to bear arms.” In other words, because Florida residents generally have easy access to concealed carry permits, banning open carry does not significantly limit their right Second Amendment rights.
But the court went further.
While they agreed that the Second Amendment includes the right to bear arms outside the home, they saw open carry as working against “the stated government purpose of public safety and reducing gun violence.”
Open carry diminishes public safety because hypothetical criminals are more likely to target individuals with guns. According to the court, “deranged persons and criminals would be less likely to gain control of firearms in public because concealed firearms — as opposed to openly carried firearms — could not be viewed by ordinary sight.”
So, in this imaginary scenario, a would-be criminal sees a person with a firearm, intentionally targets that person, and seizes control of their firearm. For this reason the ban on open carry serves an “important government interest” and is therefore not subject to strict scrutiny under the Heller decision.
There’s just one problem. Couldn’t that hypothetical scenario just as easily run in the opposite direction? Wouldn’t a criminal be more likely to avoid a person with a firearm?
As Eugene Volokh writes for the Washington Post, “one should have either empirical studies or at least an inherently plausible theory” when determining whether a law serves or detracts from an important government interest.
The Florida Supreme Court’s theory is anything but plausible. No one knows precisely how a criminal would react to a person with an openly carried firearm, but the Florida Supreme Court doesn’t know either. They do not cite any empirical studies to back up their claims, and the counterargument – that a criminal would run away at the sight of a firearm – is just as plausible.