Florida ban on open carry of guns unconstitutional, appeals court rules

TALLAHASSEE, Fla. — Florida is a step closer to allowing the open carry of firearms in public, based on a court decision out of the Panhandle.

On Wednesday, the Florida First District Court of Appeal ruled that the state’s open carry ban is unconstitutional, saying that it conflicts with the Second Amendment’s guarantee of the right to bear arms.

The ruling isn’t final until the 15-day window for a rehearing has run out. But Florida Attorney General James Uthmeier will not seek a rehearing or ask the Florida Supreme Court for review, meaning the court’s decision will likely stand. On social media, Uthmeier said he fully supported the ruling.

The open carry case originated from the 2022 arrest of Stanley McDaniels in Escambia County. McDaniels, before the arrest, had livestreamed himself with a visible holstered pistol and a copy of the U.S. Constitution in downtown Pensacola.

The state appeals court said that under the U.S. Supreme Court’s new framework for evaluating restrictions on the Second Amendment, Florida’s ban didn’t pass muster.

The Florida Supreme Court in 2017 upheld Florida’s open carry ban, but the First District appeals court said a 2022 U.S. Supreme Court case takes precedence. That case, referred to as the Bruen decision, says that laws restricting the Second Amendment must be rooted in historic gun regulation.

“No historical tradition supports Florida’s Open Carry Ban,” the court wrote in its opinion. “To the contrary, history confirms that the right to bear arms in public necessarily includes the right to do so openly.”

All three judges in the case concurred. Judge Lori S. Rowe was appointed by former Gov. Charlie Crist, and Judges Stephanie W. Ray and M. Kemmerly Thomas were appointed by former Gov. Rick Scott.

Florida is one of four states — alongside Illinois, Connecticut, and California — that ban open carry in nearly all circumstances for all kinds of firearms, according to Everytown for Gun Safety. Florida’s ban has been in effect since 1987.

Uthmeier said Wednesday on social media that he “fully supports the Court’s decision.” The Florida Attorney General’s Office had been defending the open carry ban in the case under former Attorney General Ashley Moody.

“This is a big win for the Second Amendment rights of Floridians,” Uthmeier said. “As we’ve all witnessed over the last few days, our God-given right to self-defense is indispensable.”

Gov. Ron DeSantis has supported open carry and has called for the Legislature to pass it. But Florida’s Republican lawmakers have demurred.

Instead, in 2023, Florida lawmakers passed a law allowing people to carry concealed guns without a permit and without training.

DeSantis, in a social media post, said the court’s decision “aligns state policy with my long-held position and with the vast majority of states throughout the union.”

“Ultimately, the court correctly ruled that the text of the Second Amendment — ‘to keep and bear arms’ — says what it means and means what it says," DeSantis said.

Along with pushing the Legislature to pass open carry, DeSantis has also said he wants to repeal some Florida gun restrictions passed after the massacre at a Parkland high school in 2017.

That includes the red flag law, which allows courts to temporarily disarm people at risk of harming themselves or others, and a restriction that stops people younger than 21 from buying long guns.

In a court battle over the latter, Uthmeier had said that he would not defend the Florida law if it came in front of the U.S. Supreme Court.

Luis Valdes, the Florida director of Gun Owners of America, applauded Wednesday’s court decision, saying it was especially important “after the Republican supermajority Legislature has failed to address this issue for a number of years now.”

But Douglas Letter, Brady United Against Gun Violence’s Chief Legal Officer, decried the decision, saying in a statement that U.S. governments “have always been able to restrict the way in which someone carries a firearm in public, and that includes restricting open carry.”

“Floridians and the millions of tourists and visitors that travel to the Sunshine State annually will be endangered if the decision stays in effect,” Letter said.

The court, in its decision, said its ruling “is not to say that open carry is absolute or immune from reasonable regulation,” but that the state may not “extinguish the right altogether for ordinary, law-abiding, adult citizens.”

Even if Florida’s law prohibiting open carry were nullified, state law still bars people from carrying firearms in any capacity to certain places, including police stations, courthouses, polling places and college campuses.

Laws also are still in place about who can purchase a gun. Firearm purchases are restricted for certain people, including those with felonies or domestic violence injunctions.

Pinellas County Sheriff Bob Gualtieri, a Republican, has long opposed open carry. But Gualtieri said Wednesday that his personal opinions are irrelevant.

“We don’t make the law, we follow the law,” Gualtieri said. “This is going to be the law in Florida and we’ll follow the law and we’ll adhere to it.”

Gualtieri said he thought it was important that people know the ruling doesn’t negate a private property owner’s ability to restrict people from carrying firearms on their property, like in certain grocery stores or in restaurants.

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