Florida is now, in practical effect, both a permanent concealed-carry state and an open-carry state. That is not a prediction. It is the combined result of a state appellate decision, a formal non-enforcement memo from the Florida Attorney General, and a federal court settlement in which the government’s own defendants conceded, on the record, that the state’s open-carry ban cannot survive the Second Amendment.
The McDaniels Decision Started the Collapse
The trigger was McDaniels v. State, decided September 10, 2025 by Florida’s First District Court of Appeal. Stanley Victor McDaniels had been arrested in Pensacola for carrying a holstered handgun openly and visibly. He was not threatening anyone. His conduct was peaceful. He was prosecuted anyway under section 790.053(1) of the Florida Statutes, the general open-carry ban. The trial court rejected his constitutional defense and convicted him.
A unanimous three-judge panel — the opinion authored by Judge Stephanie Ray, joined by Judges Lori Rowe and M. Kemmerly Thomas, no dissent — reversed. The panel held that section 790.053(1) violates the Second Amendment under Bruen and United States v. Rahimi because it is inconsistent with the nation’s historical tradition of firearms regulation. Open carry, the court found, was the default mode of bearing arms during the founding period. That holding abrogated the earlier reliance on Norman v. State, a 2017 Florida Supreme Court decision that had upheld the same ban 4-2 using the interest-balancing, tiers-of-scrutiny methodology the Supreme Court rejected five years later in Bruen. A decision built on a discredited method cannot bind a court once that method itself has been discredited.
The Attorney General Read the Writing on the Wall
Five days after McDaniels came down, Florida Attorney General James Uthmeier issued a memorandum to the state’s law enforcement agencies and prosecuting authorities, dated September 15, 2025. He wrote that the First District Court of Appeal had struck down the open-carry ban, “finding that law-abiding adult citizens have the right to carry firearms openly in public under the second amendment.”
“The defendant in McDaniels carried a sidearm in a holster tucked in his pants, but the gun was uncovered [visible]. Importantly, he was a law-abiding citizen and did not threaten or otherwise [menace] anyone with a gun. His actions were peaceful and orderly.”
Uthmeier’s memo did more than summarize the opinion. He instructed that McDaniels applies statewide, not merely within the First District’s 32 counties, and directed prosecutors to stand down. That is a significant use of executive discretion: the state’s chief law enforcement officer declaring that continued enforcement of section 790.053 against peaceful open carriers would mean prosecuting people for exercising a right the Constitution protects.
A Federal Defendant Concedes the Point
The state-court and executive-branch developments were not the only front. Gun Owners of America, Inc., the Gun Owners Foundation, and an individual Florida plaintiff had filed suit in August 2024 in the Southern District of Florida — Gun Owners of America, Inc. v. Del Toro — naming the St. Lucie County Sheriff and Thomas Bakkedahl, the elected State Attorney for Florida’s Nineteenth Judicial Circuit, as defendants. That is a distinct office from Uthmeier’s: a circuit-level prosecutor’s office, not the statewide Attorney General’s.
In June 2025, GOA moved for summary judgment, arguing that the plain text of the Second Amendment covers open carry of handguns, that Heller confirms handguns are protected arms, and that the historical record affirmatively supports open carry rather than merely failing to prohibit it. The brief pointed to the Militia Act of 1792, which required able-bodied citizens to appear at musters armed and equipped, and to founding-era town-green gatherings — including at Lexington and Concord — where citizens openly bore muskets and rifles as a matter of course.
Reported by GOA on December 10, 2025, the defendants settled and stipulated to dismiss the case with prejudice, agreeing to pay GOA’s attorneys’ fees and costs. The stipulation contains concessions that matter well beyond this one case.
“[T]he open carry of firearms … is … presumptively protected by the plain text of the Second Amendment as articulated in [New York State Rifle & Pistol Association v. Bruen] 2022 … Florida’s open carry ban under section 790.053[(1)] is incompatible with the Second Amendment as no historical tradition supports such a restriction … and Florida law enforcement agencies must conform their practices to that constitutional standard.”
The defendants further agreed they “will not enforce or cause to be enforced Florida statute 790.053.”
Why a Concession Is More Powerful Than a Default
I have argued for years that government concessions in Second Amendment litigation carry weight beyond the case that produced them. When a state prosecutor’s office stipulates, in a filed federal document, that no historical tradition supports a carry restriction, that admission becomes part of the public record other litigants and courts can cite. It is one thing for a court to rule against the government. It is another for the government itself to concede, under its own signature, that the historical case for the restriction does not exist. This settlement gives Florida’s open-carry ban that second kind of death — not merely enjoined, but disowned by the office that was supposed to defend it.
Where This Leaves Floridians
Between the First District’s holding, the Attorney General’s statewide non-enforcement instruction, and a federal defendant’s own concession that no historical tradition supports the ban, every relevant Florida authority has now agreed section 790.053 cannot stand. I am not a Florida-licensed attorney, and anyone considering open carry in Florida should confirm current guidance with Florida counsel or a gun-rights organization before acting. But on this record, a prosecutor who tried to bring a new open-carry case would be the outlier, arguing a position the state’s own officials have already abandoned.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.