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Vertical stare decisis: Can a District Court of Appeal overrule Florida Supreme Court precedent?

11/4/25

By: Robert Scavone Jr.

The First District Court of Appeal recently struck down a Florida law that prohibited people from openly carrying firearms in public. The court held that section 790.053 violated the Second Amendment as applied to the states through the Fourteenth Amendment. McDaniels v. State, No. 1D2023-0533, 2025 WL 2608688 (Fla. 1st DCA Sept. 10, 2025).

McDaniels raises an interesting question about precedent: Can an intermediate appellate court set aside binding state supreme court precedent on a federal constitutional question when the U.S. Supreme Court changes the analytical framework for answering the question? First, some background.

Until recently, states had broad authority to regulate the possession of firearms. And many states enacted laws banning people from carrying firearms in an unconcealed manner. Beginning in 2008, in a case called District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court began cutting back on states’ authority. The narrowing continued in McDonald v. City of Chicago, 561 U.S. 742 (2010). After these cases, federal district and appellate courts analyzed firearm regulations using “means-end scrutiny,” which balances a state’s interests in regulating against an individual’s protected right.

But in 2022, the Court did away with means-end balancing in the Second Amendment context in New York State Rifle & Pistol Association, Inc., v. Bruen, 597 U.S. 1 (2022). The Bruen test asks whether a person’s conduct is covered by the Second Amendment’s “plain text.” If it is, the conduct is presumed protected and the “government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Back to Florida.

In 2017, the Florida Supreme Court determined the constitutionality of section 790.053. The court evaluated the question under Heller and McDonald and, applying intermediate scrutiny, concluded that the law did not violate the Second Amendment. Norman v. State, 215 So. 3d 18, 41 (Fla. 2017). Norman garnered the support of three justices, and another justice concurred in the result only. Two justices dissented, and one did not participate.

Florida’s Constitution states that “[t]he concurrence of four justices shall be necessary to a decision.” Art. V, § 3(a), Fla. Const. And a concurrence in the result only doesn’t count. Floridians For A Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007). Yet, McDaniels treated Norman’s conclusion about section 790.053 as a “holding.” 2025 WL 2608688, at *5.

Notwithstanding this acknowledgement, the First DCA determined that Norman “[did] not provide controlling precedent.” Id. at *6. Why? Because Norman was decided under an analytical framework Bruen rejected. Since Norman, the U.S. Supreme Court has shifted away from means-end balances; therefore, under the Supremacy Clause, the First DCA was free to apply Bruen despite Norman’s on-point holding. Id.

The court, quoting its precedent, stated:

The decisions of the United States Supreme Court on questions of federal constitutional law have direct and controlling effect on our decisions though the Florida Supreme Court has not yet had an opportunity to conform its previously expressed views, which were themselves in conformity with United States Supreme Court decisions as then understood by the Florida Supreme Court.

Id. (quoting Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980). This statement is peculiar for three reasons. First, Florida’s Constitution does not contain a Second Amendment conformity clause. Second, Spencer cited State v. Dwyer, 332 So. 2d 333 (Fla. 1976), which explains:

Stare decisis is a fundamental principle of Florida law. It played an important part in the development of English common law and its importance has not diminished today. Where an issue has been decided in the Supreme Court of the state, the lower courts are bound to adhere to the Court’s ruling when considering similar issues, even though the court might believe that the law should be otherwise.

Id. at 335 (emphasis added). Dwyer also concluded that a Florida Supreme Court opinion regarding the constitutionality of a statute is binding unless the U.S. Supreme Court determines that the specific statute is unconstitutional. Id. And McDaniels acknowledged that the U.S. Supreme Court had not addressed the constitutionality of section 790.053. 2025 WL 2608688, *6.

Third, the Florida Supreme Court has cautioned that district courts should “‘follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’” Marshall v. Crosby, 911 So. 2d 1129, 1135 (Fla. 2005) (quoting Bottoson v. Moore, 833 So. 2d 693, 695 (Fla. 2002) (plurality)). “To allow a District Court of Appeal to overrule controlling precedent of this Court would be to create chaos and uncertainty in the judicial forum.” Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973).

The First DCA in McDaniels was bound to “follow controlling precedents set by the Florida Supreme Court.” State v. Lott, 286 So. 2d 565, 566 (Fla. 1973) (citing Hoffman). Until McDaniels, the First DCA adhered to this “fundamental principle”: “We are bound to follow the case law set forth by the Florida Supreme Court, which ‘shall prevail until overruled by a subsequent decision of [that] Court.’” Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240, 1242 (Fla. 1st DCA 2012) (quoting Hoffman).

McDaniels represents an unusual treatment of precedent. And it does not cite any Florida Supreme Court opinion authorizing the District Courts of Appeal to jettison its precedent because the U.S. Supreme Court changed course. It’s unclear what effect McDaniels will have moving forward or whether District Courts of Appeal will feel empowered to apply a similar approach in other contexts.

For information on how we can assist you with appeals and complex motions, please contact Robert Scavone Jr. at robert.scavone@fmglaw.com.

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