Florida, Open Carry, and the Second Amendment After Bruen

By Jordan Levitt '26

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Courts are increasingly reshaping Second Amendment doctrine in the wake of New York State Rifle & Pistol Association v. Bruen, where the Supreme Court held that New York’s “proper cause” requirement violated the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising the right to carry a handgun publicly for self-defense. The Court rejected the old two-step means-end approach in favor of text, history, and tradition. As a result, Florida’s firearm carry regime has invariably entered a period of renewed constitutional scrutiny. (1) Historically known for a categorical prohibition on the open carry of firearms, Florida courts have now begun to reassess that restriction under Bruen’s renewed and historically grounded framework. This framework rejects means-end scrutiny, where a law is evaluated based on its apparent value to society, in favor of an analysis rooted in constitutional text and, most paramount, historical tradition. (2) This doctrinal shift reflects a broader national reevaluation of firearm regulations that were previously sustained through judicial deference to legislative policy judgments. (3) On September 16, 2025, the First District Court of Appeal invalidated Florida’s open carry ban as unconstitutional in McDaniels v. State, striking down a statute enacted by the 1987 legislature that broadly criminalized public open carry with only narrow exceptions, finding it conflicted with the Second Amendment under the historical framework articulated in Bruen. (4) The statutes at issue, Florida Statute § 790.053 and §790.01, were enacted in the same year Florida adopted a right-to-carry framework for concealed weapons, creating a regulatory scheme that permitted concealed carry while simultaneously prohibiting open carry. (5) For decades, this prohibition stood as a defining feature of Florida firearm law, despite longstanding historical recognition of open carry as a lawful means of bearing arms. (6)

The decision in McDaniels signals a meaningful shift in Florida firearm jurisprudence, placing the state squarely within the post-Bruen landscape where categorical restrictions on public carry are increasingly difficult to sustain absent clear historical justification. (7) In doing so, the court aligned Florida with a growing number of jurisdictions reassessing public carry regulations under Bruen’s historically focused test. (8) This shift reflects a broader recalibration of Second Amendment jurisprudence, one that definitively treats the right to bear arms as a substantive constitutional guarantee rather than a policy preference subject to legislative discretion. (9) Before Bruen, courts routinely upheld firearm regulations by applying intermediate scrutiny, weighing asserted public safety interests against the degree to which a regulation burdened individual rights. (10) Florida’s open carry ban persisted ultimately within that framework, justified by legislative determinations concerning public order, law enforcement discretion, and community safety rather than by reference to historical tradition. (11) Under this approach, courts frequently deferred to legislative judgments regarding the necessity and effectiveness of firearm regulations, even if such regulations lacked historical precedent. (12)

Bruen expressly dismantled this analytical model. The Supreme Court held that the Second Amendment “demands a test rooted in the Nation’s historical tradition of firearm regulation,” placing the burden squarely on the government to demonstrate that any modern regulations are consistent with historical analogues from the Founding or Reconstruction eras. (13) The Court rejected any form of interest balancing, emphasizing that constitutional rights do not rise or fall with contemporary assessments of public utility. (14) As a result, any regulations previously upheld under intermediate scrutiny are now subject to renewed constitutional vulnerability. When applied to Florida’s open carry prohibition, Bruen’s framework exposes a crucial constitutional defect. Public carry falls squarely within the Second Amendment’s protection of the right to “bear arms,” a phrase the Supreme Court has repeatedly interpreted to encompass the carrying of firearms for lawful purposes outside the home. (15) Historical sources consistently distinguish between permissible regulation of the manner of carry and impermissible prohibitions on carry altogether. (16) While several nineteenth-century jurisdictions regulated or prohibited concealed carry, open carry was widely recognized as a lawful and often constitutionally protected means of bearing arms. In fact, there exists virtually no evidence of any statewide or other large-scale restrictions on firearm ownership or open possession during this era in the state of Florida or anywhere else in the country. (17)

Florida’s statutory scheme, which essentially criminalized open carry in public settings with few exceptions while permitting concealed carry through licensing frameworks, lacked a clear historical analogue supporting such a categorical restriction. (18) This asymmetry is constitutionally significant under Bruen, which instructs courts to examine whether modern regulations impose a comparable burden on the right to bear arms as historical regulations did. (19) The absence of any historical precedent for prohibiting open carry while allowing concealed carry undermines the constitutional legitimacy of Florida’s former statutory approach.

The practical consequences of this doctrinal shift are quite significant but often misunderstood. Florida permits concealed carry without a license under Florida Statute § 790.01, subject to location-based restrictions and enumerated exceptions under § 790.25. The invalidation of the open carry ban does not eliminate these limitations, nor does it create an unregulated right to carry firearms in all public spaces. Rather, it reinforces a central constitutional principle of both the US and the state of Florida. While the state may regulate where and how firearms are carried, it may not criminalize an otherwise lawful mode of public carry simply because it is publicly disfavored, absent a clear historical justification. (21)

For lawful gun owners in Florida, this distinction is far beyond just academic. It defines the outer boundary of permissible regulation and clarifies the extent to which the state may impose such restrictions consistent with constitutional text and history. (22) As Florida Attorney General James Uthmeier has informed law enforcement agencies and policymakers, § 790.053 is now unenforceable, and they must operate within a newly minted framework that prioritizes historical legitimacy over regulatory convenience, reshaping both enforcement practices and legislative strategy. (23)

Florida’s experience mirrors a broader national trend post Bruen, as courts nationwide

increasingly invalidate firearm regulations that rely on modern policy decisions untethered from historical practice. (24) Florida’s case is particularly impactful and instructive, however, given its longstanding resistance to open carry alongside its simultaneous embrace of concealed carry. That tension underscores Bruen’s core lesson: constitutional permissibility relies on historical legitimacy, not legislative preference. (25) Plainly, the Second Amendment operates as a fixed constraint on governmental authority, not as a conditional right dependent on shifting assessments of public risk. (26)

As Florida courts continue to apply Bruen, the future of any firearm regulation in the state will depend on adherence to this historically grounded framework. The rejection of Florida’s open carry ban affirms that the Second Amendment places real limits on the state’s power to regulate public carry and that those limits simply cannot be avoided through categorical prohibitions unsupported by historical tradition. (27) In that respect, Florida’s recent judicial developments mark not a new expansion of rights, but a restoration of the constitutional boundaries historically recognized in American law. (28)

Endnotes

1. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

2. Bruen, 597 U.S. 1.

3. District of Columbia v. Heller, 554 U.S. 570 (2008).

4. McDaniels v. State, No. 1D2023-0533 (Fla. 1st Dist. Ct. App. Sept. 10, 2025).

5. Fla. Stat. §§ 790.01, 790.053.

6. Heller, 554 U.S. 570.

7. McDaniels, slip op.

8. See, e.g., Antonyuk v. Hochul, 639 F. Supp. 3d 232 (N.D.N.Y. 2022); Koons v. Platkin, 673 F. Supp. 3d 515 (D.N.J. 2023).

9. Bruen, 597 U.S. 1.

10. See, e.g., United States v. Chester, 628 F.3d 673, 680–82 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010).

11. Fla. Stat. § 790.053.

12. Norman v. State, 215 So. 3d 18, 36–40 (Fla. 2017).

13. Bruen, 597 U.S. 1.

14. Ibid.

15. Heller, 554 U.S. 570.

16. See Clayton E. Cramer, “Concealed Weapon Laws of the Early Republic,” 43 Journal of the Early Republic 73 (2023); David B. Kopel & Joseph G.S. Greenlee, “The ‘Sensitive Places’ Doctrine,” 13 Charleston Law Review 205 (2018).

17. Ibid.

18. Fla. Stat. §§ 790.01, 790.053.

19. Bruen, 597 U.S. 1.

20. Fla. Stat. § 790.01.

21. Bruen, 597 U.S. 1.

22. Ibid.

23. Florida Attorney General James Uthmeier, Guidance to Law Enforcement Regarding McDaniels v. State, Office of the Attorney General (Sept. 15, 2025).

24. See, e.g., United States v. Rahimi, 602 U.S. ___ (2024); Antonyuk v. Hochul, 639 F. Supp. 3d 232 (N.D.N.Y. 2022).

25. Bruen, 597 U.S. 1.

26. Ibid.

27. McDaniels, slip op.

28. McDonald v. City of Chicago, 561 U.S. 742 (2010).