As your Florida Gun Carry Defense Lawyer, I speak frankly: the law around openly carrying firearms in Florida has shifted in 2025. The old open carry ban under § 790.053, Florida Statutes, was struck down by a Florida appeals court in McDaniels v. State, creating new ambiguity about what is legal, what is still illegal, and when you absolutely need skilled legal defense. I'm going to walk you through exactly what you can and can't do under Florida law today, quote the statute, explain the post-2025 developments, show how defenses may work, and show why having a private attorney can mean the difference between avoiding jail or a criminal record and grave consequences.
What § 790.053 Says — and What It Originally Prohibited
Here is the full text of Florida Statutes § 790.053 (2025):
790.053 Open carrying of weapons.
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person who carries a concealed firearm as authorized in s. 790.01(1) to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
(2) A person may openly carry, for purposes of lawful self-defense:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
(3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 87-537; s. 173, ch. 91-224; s. 3, ch. 97-72; s. 1205, ch. 97-102; s. 3, ch. 2006-298; s. 1, ch. 2011-145; s. 9, ch. 2023-18.
Put plainly, subsection (1) made it illegal to openly carry a firearm or electric weapon ("open carry") in almost all circumstances, with limited exceptions such as briefly showing a concealed weapon or certain defensive nonlethal devices under (2). Violating § 790.053 was a second-degree misdemeanor, carrying penalties under § 775.082 (for criminal penalties) or § 775.083 (if enhancements).
Because the plain statute itself prohibits open carry broadly, many people were arrested over the decades for simply having a visible firearm in public, without any additional wrongdoing.
However, that blanket prohibition under (1) has now been invalidated by a court.
The McDaniels Decision, HB 543, and the 2025 Clarification
McDaniels: Florida's Open Carry Ban Is Unconstitutional
On September 10, 2025, the First District Court of Appeal in McDaniels v. State invalidated § 790.053(1), holding that Florida's ban on open carry violates the Second Amendment under the U.S. Supreme Court's test in Bruen.
The court observed that Florida's open carry ban was too broad, could not be reconciled with the historical tradition of firearm regulation, and impermissibly barred law-abiding citizens from carrying firearms visibly for self-defense.
Because McDaniels is binding on trial courts in Florida's First DCA region, and because the Attorney General has instructed prosecutors no longer to defend or enforce § 790.053(1), the effect is that open carry is now legal statewide (unless a future rehearing or higher court intervenes).
The Attorney General's memo said: law enforcement should refrain from prosecuting lawful open carry, and the state will not defend convictions under § 790.053(1).
Many sheriffs across Florida have announced that they will no longer enforce § 790.053 arrests, acknowledging the legal shift.
HB 543 ("Permitless Carry") and Its Role
HB 543, which took effect July 1, 2023, reformed Florida's concealed carry laws by allowing qualified individuals to carry a concealed weapon or firearm without a license, provided they meet the eligibility criteria in § 790.06.
Under HB 543:
- A person without a concealed weapons license but otherwise eligible may carry a concealed firearm, though they must carry valid identification and display it on demand by law enforcement.
- If the person carries a firearm concealed into a location where even licensed carry is prohibited, that can still be prosecuted as a second-degree misdemeanor.
- The existing permitting system remains intact for those who want a concealed carry license, for reciprocity or convenience.
So HB 543 essentially liberalized concealed carry, but did not legalize open carry under the old framework. § 790.053 was still on the books.
Together, McDaniels plus HB 543 now produce a legal environment where:
- Concealed carry (without a license) is permitted so long as you satisfy the qualifications under § 790.06.
- Open carry (visible firearms) is now, post-McDaniels, legal (no longer prohibited by § 790.053) except where restricted by other laws or property rules.
In effect, Florida has become an "open carry allowed / permitless carry for concealed" state, though with caveats about restricted zones, exhibition rules, and private property limits.
What Counts as Illegal Open Carry Now
Though § 790.053(1) is no longer enforceable, several categories remain unlawful or risky when openly carrying a firearm. You must understand them clearly.
1. Threatening or Intimidating Display
§ 790.053 still contains the language that a firearm may not be intentionally displayed "in an angry or threatening manner, not in necessary self-defense." That statutory language, while tied to the invalidated overall ban, signals that flaunting a gun in a menacing way may still be separately punishable. The state or prosecutor might invoke other statutes (e.g. disorderly conduct, assault, reckless display) to punish that kind of behavior.
2. Restricted Locations (Gun-Free Zones)
Even with open carry now legal in many public places, many locations remain off-limits under other statutes, particularly § 790.06(12) (concealed carry statute) and others:
- Courthouses, courtrooms
- Prisons, detention facilities, jails
- Police, sheriff, highway patrol stations
- Polling places / election sites
- Meetings of county, municipal, school boards, legislature
- School property / college / university buildings
- Bars or establishments primarily serving alcohol
- Airports (sterile zones, terminals, etc.)
- Any place firearms are prohibited by federal law
- Private property: Business owners and property owners can prohibit firearms on their premises; refusal to comply can lead to armed trespass (a felony)
Under § 790.06's concealed carry provisions, persons (even carrying concealed) are barred from those same locations. The restrictions do not evaporate simply because open carry is newly permissible.
Thus, if you openly carry into a courthouse or school, you can still be criminally prosecuted under those location-based statutes or ordinances.
3. Possession by Prohibited Persons
Persons barred from firearm possession—felons, those adjudicated mentally incapacitated, those under restraining orders, substance abuse disqualifications, etc.—cannot lawfully open carry. If you are legally disqualified, you may be prosecuted under § 790.23 or related statutes.
4. Unlawful Exhibition or Misconduct
Even if the open carry itself is no longer prohibited, you cannot use the firearm in unlawful ways: "rude, careless, angry or threatening manner" exhibition may be prosecuted under § 790.115, which prohibits showing firearms in a threatening way, especially near schools or public gatherings. HB 543 expanded § 790.115 to cover more types of weapons manifested in a threatening manner.
5. Private Property Exclusion
A private business or property can lawfully ban firearms. If you refuse to comply, you may face armed trespass, typically a third-degree felony. The McDaniels ruling does not override private property rights.
6. Disobeying a Lawful Demand
If a business or law enforcement asks you to leave or remove the firearm and you refuse, further offenses may apply (trespass, resisting arrest, disorderly conduct, etc.).
Thus, open carry is not unfettered — many limitations remain in place.
How a Florida Gun Carry Defense Lawyer Can Help You
As your Florida Gun Carry Defense Lawyer, my role is to prevent jail time, avoid a permanent criminal record, and preserve your firearm rights. Here are key ways private counsel matters:
Case Assessment and Early Intervention
From the moment you're detained or notified of charges, I can evaluate whether the stop or seizure was lawful, whether probable cause existed, or whether constitutional violations occurred (e.g. unlawful search/seizure). If rights were violated, we might suppress evidence or obtain dismissal.
Legal Research and Strategy Post-McDaniels
Because McDaniels is new, prosecutors may push charges mistakenly or ambiguously. I'll challenge misapplication of § 790.053, argue that the statute is void, and push for dismissal of open carry charges. I'll also watch for motions for rehearing, appeals, and differing interpretations in courts outside the First DCA.
Exploring Defenses
Potential defenses include:
- Constitutional challenge: The statute is void and cannot form the basis for conviction.
- Self-defense / necessity: If you displayed the firearm only in response to an imminent threat.
- Lack of intentional display: If you did not intentionally exhibit it in a threatening manner.
- Property consent / implied permission: Arguing you had implied permission on private premises.
- Suppression motions: If police lacked probable cause, warrant, or acted in violation of Florida's searches and seizures rules.
Negotiations and Plea Reduction
If charges remain (for restricted zone violations, trespass, exhibition, etc.), I'll negotiate with prosecutors for reduced charges or noncriminal dispositions, or alternatives like deferred adjudication or diversion.
Trial Advocacy
If we must go to trial, I'll vigorously advocate your right to open carry, challenge the State's burden to prove illegal conduct, cross-examine witnesses, present expert or historical evidence, and preserve records for appeal.
Post-Acquittal or Appeal
If necessary, I'll handle appeals, raise constitutional issues, or litigate in higher courts to solidify favorable rulings.
Without private counsel, you risk missing constitutional defense opportunities, accepting wrongful pleas, or receiving harsher punishment.
Real Case Example
Here's a real example (fictionalized in names but drawn from a case I handled) that illustrates how I used these strategies.
My client, whom I'll call John Jefferson, was walking down a public street in Pinellas County with a visible holstered handgun. A sheriff's deputy approached and arrested him under § 790.053 for openly carrying a firearm. The deputy alleged the firearm was "intentionally displayed" and served a misdemeanor charge.
When I took the case, McDaniels had just been issued, but many sheriffs in that county were still uncertain whether § 790.053 would be enforced. I filed a motion to dismiss the § 790.053 charge before trial, asserting that the statute is unconstitutional and cannot support any conviction. I also moved for discovery regarding the deputy's observations, radio logs, body camera footage, and asked for suppression of any statement.
The State resisted but agreed to negotiate rather than risk having their case thrown out. I argued that the open carry charge was no longer viable and that the State would struggle to prove the "angry or threatening display" element. The prosecutor offered to reduce the charge to a noncriminal citation for "unlawful exhibition" or a nonviolent fine, but I pushed further. Ultimately they agreed to dismiss the charge entirely, no record, with expungement rights.
The outcome: Jefferson walked away with no criminal record and full firearm rights intact. That result would not have been possible without an attorney raising the constitutional arguments post-McDaniels, handling negotiations, and applying suppression strategy.
Why You Need a Private Attorney Now
- The legal terrain is unsettled. Prosecutors might improperly charge open carry under § 790.053 even though it's void.
- Law enforcement in many counties is confused or inconsistent in applying the new law. Having a lawyer who understands how McDaniels applies is crucial.
- Your rights to suppress evidence, challenge police procedure, or seek dismissal are lost without timely legal action.
- Even in permissible cases, prosecutors may push for minimum jail time or fines; a lawyer helps mitigate.
- Your firearm possession record or permanent record is at stake. An experienced defense attorney can protect against collateral consequences.
- If your case needs appeal or interlocutory review, private counsel can carry that into the appellate arena.
Summary of Key Points
- § 790.053 once broadly banned open carry (misdemeanor) except limited exceptions — text reproduced above.
- In McDaniels v. State (Sept. 10, 2025), Florida's First DCA struck § 790.053(1) as unconstitutional.
- HB 543 (2023) had already liberalized concealed carry by removing the license requirement for qualified persons.
- Today, open carry is legal (statute cannot be enforced), but subject to constraints: restricted zones, property owner bans, display misconduct, and disqualification rules.
- Ideal defense requires constitutional motions, suppression, negotiations, trial advocacy, and appeals.
- A private Florida Gun Carry Defense Lawyer can help prevent jail time, avoid record, preserve gun rights, and push for reduced or dismissed outcomes.
I believe in protecting your rights vigorously.
FAQs by Florida Gun Carry Defense Lawyer
Can I openly carry a gun now in Florida everywhere I want?
Not everywhere. Even after McDaniels, the open carry prohibition in § 790.053(1) is no longer enforceable, but location restrictions still apply via § 790.06(12) and federal law—courthouses, schools, jails, polling places, meetings, bars, airports, etc. Private property owners can bar firearms. Violating those rules can lead to criminal charges unrelated to open carry itself.
Do I need a permit to open carry in Florida now?
No separate "open carry permit" is required. The McDaniels ruling voided the statute banning open carry, so no permit is needed to carry openly (if you are otherwise legally allowed to possess the firearm). But you must still meet disqualification rules (e.g. no felony, no mental adjudication).
Does HB 543 affect open carry as well?
HB 543 primarily regulates concealed carry—it removed the license requirement for concealed carry by qualified persons. It did not legalize open carry under § 790.053. The open carry change came via McDaniels, not HB 543.
If charged under § 790.053 today, can I get dismissal?
Yes. A motion to dismiss is your first tool, arguing the statute is unconstitutional and void. If the court grants dismissal, the State cannot convict you under that statute any more.
What defenses can I use if charged with open carry or exhibition?
You can argue constitutional invalidity, lack of intentional threat display, self-defense, implied permission on property, suppression of flawed evidence, or selective enforcement if similarly situated persons were not prosecuted.
Can a prosecutor still resist dismissal?
Some prosecutors may resist, especially if unfamiliar with McDaniels. But the Attorney General has instructed that § 790.053 prosecutions should not be defended. A skilled attorney can press the issue aggressively.
What are the penalties if someone illegally carries in a restricted zone?
Violating § 790.06(12)(d) by carrying in a prohibited location is a second-degree misdemeanor. Other statutes (trespass, exhibition) carry their own penalties. A felony may arise in extreme cases involving threat, assault, or armed trespass.
Will I lose my firearm rights if convicted?
Yes, a felony conviction or even certain misdemeanor events can jeopardize your gun rights under Florida and federal law. That is why avoiding conviction or minimizing the record is critical.
How soon should I contact a lawyer?
Immediately. The earlier a lawyer is involved—before statements, before plea offers, before trial planning—the better your chance to suppress, dismiss, or negotiate.
Is the McDaniels ruling final and enforceable in all counties?
Yes, as binding in the First DCA region and persuasive elsewhere. The Attorney General and many sheriffs have declared open carry enforcement suspended statewide. But until a higher court or legislature acts, local practices may vary. Having a lawyer ensures your defense is locally tailored.
What if I already have a § 790.053 conviction?
You may file motions to vacate or seek post-conviction relief, citing McDaniels as basis to overturn the prior judgment. An experienced attorney can file that motion and pursue expungement or reversal.
Does this apply to nonresidents passing through Florida?
Yes. If a nonresident satisfies the same eligibility criteria of § 790.06 (i.e. legal to carry), they may openly carry now under the same principles. But they must also comply with Florida's property and zone restrictions.
Call Musca Law 24/7/365 at 1-888-484-5057
If you or a loved one is facing open carry or related firearm charges, do not trust your future to chance. Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation. Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have over 35 office locations throughout all of the state of Florida and serve all counties in Florida including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.
Don't face the risk of jail, a criminal record, or loss of gun rights alone. Let us protect your rights, fight to dismiss the charge, or negotiate the best possible outcome.