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Thread: Re-thinking open carry in vehicles in WI

  1. #1
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    Only a $100 fine for open carrying in vehicle in WI?

    Seems like a pretty low barrier to exercising your self defense rights - if charged, a great defense would be per the Wisconsin State Constitution at Article I, Section 25 which provides that "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."
    WI Code Section 167.31 ("Safe use and transportation of firearms and bows") provides that ". . . (2) PROHIBITIONS; MOTORBOATS AND VEHICLES; HIGHWAYS AND ROADWAYS. . . . (b) Except as provided in sub. (4), no person may place, possess or transport a firearm, bow or crossbow in or on a vehicle, unless the firearm is unloaded and encased or unless the bow or crossbow is unstrung or is enclosed in a carrying case. . . . (e) A person who violates pars. (a) to (d) is subject to a forfeiture of not more than $100. . . ."

    What is the cite to the Hamdan case? Any thoughts on whether open carry of handguns for defensive pursposes in vehicles could be defended as exempt from the ban at 167.31because:

    a. Your not hunting.

    b. Article I, Section 25.

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    http://www.wisbar.org/res/sup/2003/01-0056.htm

    Mike, it does look good, but the court is filled with people that don't understand their job. They didn't interpet, the made it up. You would think an open carry challenge would work, but who knows. Sad isn't it.

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    I have not been pulled over by the police in years. Everytime I exceed the speedlimit on I-95 (i.e., go with the flow of traffic), I risk at least a $100 fine.



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    Mike wrote:

    a. Your not hunting.

    b. Article I, Section 25.
    1. What does hunting have to do with anything? (note: your = belonging to you; you're = you are)

    2. The WI Supreme Court has determined that Section 25 is essentially meaningless outside of the business/home context.

    3. You always run the risk of being charged with carrying a concealed weapon. Does it make sense? No, but given the rulings in Wisconsin, anything short of mounting a gun on the hood, surrounded by neon lights is risky.:shock:

    4. I-95 doesn't run through Wisconsin.

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    apjonas wrote:
    Mike wrote:

    a. Your not hunting.

    b. Article I, Section 25.
    1. What does hunting have to do with anything? (note: your = belonging to you; you're = you are)

    2. The WI Supreme Court has determined that Section 25 is essentially meaningless outside of the business/home context.

    3. You always run the risk of being charged with carrying a concealed weapon. Does it make sense? No, but given the rulings in Wisconsin, anything short of mounting a gun on the hood, surrounded by neon lights is risky.:shock:

    4. I-95 doesn't run through Wisconsin.
    What are the ciotes to the WI Art. I Sect. 25 holdings you speak of?

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    apjonas wrote:
    You always run the risk of being charged with carrying a concealed weapon [when open carrying in a vehilce]. Does it make sense? No, but given the rulings in Wisconsin, anything short of mounting a gun on the hood, surrounded by neon lights is risky.:shock:
    10 states do not prohibit unlicensed open carry in vehicles (13 if you count TX & AR "while traveling" and CA in incorporated areas where counties do not ban open carry).

    What authorities can you cite to support this general claim that persons open carrying in vehicles are any more at risk of being charged with unlawful concealed carry than those walking about town or sitting down at a restaurant?

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Another issue.

    There's a "gun free school zones" law in WI that makes it a class I felony to possess a loaded handgun in a car, I believe.

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    Mike wrote:
    apjonas wrote:
    You always run the risk of being charged with carrying a concealed weapon [when open carrying in a vehilce]. Does it make sense? No, but given the rulings in Wisconsin, anything short of mounting a gun on the hood, surrounded by neon lights is risky.:shock:
    10 states do not prohibit unlicensed open carry in vehicles (13 if you count TX & AR "while traveling" and CA in incorporated areas where counties do not ban open carry).

    What authorities can you cite to support this general claim that persons open carrying in vehicles are any more at risk of being charged with unlawful concealed carry than those walking about town or sitting down at a restaurant?
    Start with State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994) and then apply the Hamdan and Fisher decisions to see how the court tends to interpret statutes. Carry on the right hip = concealed; Shoulder harness with your left arm in the way = concealed; On the passenger seat = concealed; On the floor = concealed; On the dash to the right of a bobblehead = concealed. I'm not saying that vehicle carry is any riskier than sitting down in restaurant, although probably less of a problem if walking. What I am saying is the WI Supreme Court has a penchant for taking the clear and obvious language of the constitution/statutes and making it muddy and complicated, usually to the detriment of the gun owner.



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    Mike wrote:
    apjonas wrote:
    Mike wrote:

    a. Your not hunting.

    b. Article I, Section 25.
    1. What does hunting have to do with anything? (note: your = belonging to you; you're = you are)

    2. The WI Supreme Court has determined that Section 25 is essentially meaningless outside of the business/home context.

    3. You always run the risk of being charged with carrying a concealed weapon. Does it make sense? No, but given the rulings in Wisconsin, anything short of mounting a gun on the hood, surrounded by neon lights is risky.:shock:

    4. I-95 doesn't run through Wisconsin.
    What are the ciotes to the WI Art. I Sect. 25 holdings you speak of?
    The "ciotes" are Hamdan and Fisher. I'm sure you can find them.

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    You are not being helpful. Please give full cites.

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    The problem in Wisconsin is that the laws are so tangled up in inconsistent statutes and court decision that it's very difficult to know what is legal and what isn't. Add a healthy dose of ignorance of laws and logic into the mix and you have the confusion which prevails.

    One would think that because there is a particular statute that governs the transport of firearms in a vehicle, i.e., that they be unloaded and encased, that the worse you'dface for having a firearm in your vehicle is the "no more than $100" ticket for having a firearm that is either loaded or encased. But the problem is "they" have seen fit, not to prosecute people under that statute, but under the concealed weapons statute, whichwhile a misdemeanor, is certainly a more serious charge.

    The courts have failed to recognize the illogical nature of their rulings when one considers that courts have ruled that the police did NOT need a warrant to seize drugs on the seat of a car because they are "IN PLAIN VIEW." Yet, if it happens to be a firearm on the seat, instead of drugs, the firearm is "CONCEALED." Maybe some lawyer can explain to me why one object on the seat is "in plain view" while another object is "concealed." I have a master's degree in Philosophy and I've had more than just an introductory course in logic, so I don't think it will be easy to convince me.

    Listening to the oral arguments in the Hamdan case (available online on the Wisconsin Supreme Court website) provided further illumination regarding the inconsistency and plain stupidity of the current concealed weapons situation in Wisconsin. If you listen, the supreme court justices barely contain their scepticism when the Assistant Attorney General states that, in his opinion,technically a person with an opaque gun case in their house is violating the Wisconsin concealed weapons statute. Indeed, a person with knives in their closed kitchen drawers is in violation of the law. But, he adds, nobody would likely ever be prosecuted for such infractions of the law. One justice responds something to the effect "so one would have to rely on the good-will of a prosecuter not to be charged with having a concealed weapon because one has a gun cabinet or knives in a drawer?" I think the embarassing silliness of the AG's position is one of the reasons the court ruled that on one's own property or place of business one can have a concealed weapon.

    But what the court really needs to do is to declare the entire concealed weapons statute un-constitutional. Or, the legislature to repeal it.

    I think if we had a mass open carry movement in Wisconsin, the opponents of concealed carry might have a quick change of mind......
    A. Gold

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    Shotgun wrote:
    One would think that because there is a particular statute that governs the transport of firearms in a vehicle, i.e., that they be unloaded and encased, that the worse you'dface for having a firearm in your vehicle is the "no more than $100" ticket for having a firearm that is either loaded or encased. But the problem is "they" have seen fit, not to prosecute people under that statute, but under the concealed weapons statute, whichwhile a misdemeanor, is certainly a more serious charge.

    The courts have failed to recognize the illogical nature of their rulings when one considers that courts have ruled that the police did NOT need a warrant to seize drugs on the seat of a car because they are "IN PLAIN VIEW." Yet, if it happens to be a firearm on the seat, instead of drugs, the firearm is "CONCEALED."
    Please provide an authority to your view that police charge and win cases for concealed carry when gun was in plain view in car - court case cite, news article, etc.

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    OK, to answer my own question, in State v. Walls the appellate court held that a gun on a car seat was concealed, and the WI SC refused to review. I guess that leaves dash carry or shoulder holster carry.

    [p]

    The WI legislature should intervene and clarify that open carry in a car is OK if the gun can be seen by looking into an open window of the car whebn standing next to the car.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Everyone, please read Wisconsin Statute 948.605. This is one of the reasons why open carry in Wisconsin is a dangerous proposition. If they don't pop you for disturbing the peace, they can and will pop you for carrying a firearm within 1000 feet of a school, and since it's a felony, if you get convicted, you can never possess a firearm ever again unless you wait many years and spend thousands if not tens of thousands of dollars.

    948.605 Gun−free school zones. (1) DEFINITIONS. In this
    section:
    (a) “Encased” has the meaning given in s. 167.31 (1) (b).
    (ac) “Firearm” does not include any beebee or pellet−firing
    gun that expels a projectile through the force of air pressure or any
    starter pistol.
    (am) “Motor vehicle” has the meaning given in s. 340.01 (35).
    (b) “School” has the meaning given in s. 948.61 (1) (b).
    (c) “School zone” means any of the following:
    1. In or on the grounds of a school.
    2. Within 1,000 feet from the grounds of a school.
    (2) POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco
    and firearms in which political subdivision the school zone is
    located, and the law of the political subdivision requires that,
    before an individual may obtain such a license, the law enforcement
    authorities of the political subdivision must verify that the
    individual is qualified under law to receive the license;
    3. That is not loaded and is:
    a. Encased; or
    b. In a locked firearms rack that is on a motor vehicle;
    4. By an individual for use in a program approved by a school
    in the school zone;
    5. By an individual in accordance with a contract entered into
    between a school in the school zone and the individual or an
    employer of the individual;
    6. By a law enforcement officer acting in his or her official
    capacity; or
    7. That is unloaded and is possessed by an individual while
    traversing school grounds for the purpose of gaining access to
    public or private lands open to hunting, if the entry on school
    grounds is authorized by school authorities.
    8. By a person who is legally hunting in a school forest if the
    school board has decided that hunting may be allowed in the
    school forest under s. 120.13 (38).

    This is contained the Chapter "Crimes Against Children". This was missed by a lot of folk in this page.

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    This confusing mess is the way the government likes it. It allows a selective enforcement of the law. You can carry openly in Wisconsin the law is clear! But the law is equally clear not in a vehicle! Further, carry openly down the street the law is silent. Stray within a 1000 Ft. of a school and the law is clear! You’re a felon. Have you ever taken a city map and drawn 1000ft radius around the perimeter of all the public and private school properties. In most cities and towns a pedestrian would not be able to navigate from one end to the other without infringing on a gun free school zone.

    Bicycle would be ok just don't pedal by the school. I think that sums it up pretty well. The laws are just the way they want them. You have your constitutional rights in tact in Wisconsin just don't you dare to exercise them!

    I own property in WI and I do carry openly but I am never within 10 miles of a school. Unfortunately I can not vote in WI. I waste my vote down in IL.

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    You are correct that the Wisconsin firearm laws are a mess. I have traded email back and forth with the DNR legal department and with my State senator concerning the conflict between 941.23 (which is the Wisconsin Statute prohibiting concealed carry) and Wisconsin statute 167.31(2)(b) (which is the statute that requires a weapon to be unloaded and concealed in a carrying case so that no part of it is visible if the weapon is transported on or in a motor vehicle).

    In two cases State v Kieth and State v Hamdan the Wisconsin Supreme Court defined concealement as any time the three following conditions occur.

    The weapon is hidden from view. The person knows it is there. and the weapon is within reach. In Hamdan the SSC said if those conditions were present the State could charge violation of 941.23.

    Compliance to 167.31(2)(b) can definitely cause a person to meet all three of those conditions therefore a person would be in violation of the concealed carry prohibition.

    Those were the arguments I presented to the DNR law office and to my state senator. Their initial responses were that previous state supreme court decisions addressed the apparent conflict between the two statutes and declared that if a person wished to avoid the conflict they need only carry the weapon out of reach in the vehicle. By doing so one of the concealment conditions mentioned was not met therefore the weapon was not concealed.My response to them was that the SSC judgements were made at a time when nearly all motor vehicles were cars, trucks, boats, busses, trains and airplanes. Today there are a number of vechiles were upon it is legal to carry a firearm and it is not possible to carry it out of reach. Vehicles such as ATV's, snowmobiles, trail bikes, lawnmowers,motorcycles, golf carts etc.

    The DNR and my senator finally conceded that there were situations in which Statutes 941.23 and 167.31(2)(b) conflicted. The DNR responded to the conflict by saying that if a weapon was totaly encased in a containment that advertises it's presence and was carried on or in a vehicle where it is not possible to carry it out of reach the DNR would not charge concealment. When pressed the DNR would notspeculate on how other law enforcement agencies would view the situation. Thesituation I used was me riding my trail bike through town to a shooting range with a handgun totally encased in a gun rug and strapped to the handle bars.

    My senator responded saying that she agreed that the two statutes could conflict but that the law enforcement agencies had an agreement on how to handle the situation and that the state legislature would unlikely do anything about it.

    How's that for a response from someone who is supposed to uphold the State Constitution and represent the best interest of their constituents?

    The bottom line is that one or both of the statutes are unconstitutional because if they are both enforced the rights given Wisconsin citizens by Article 1 chapter 25 ;The people have the right to keep and bear arms for security, defense, recreation, hunting or any other lawful purpose. and Article 1 chapter 26; The people have the right to hunt and fish are definitely infringed. Or as a minimum itcould be interpreted that it is not legal to carry a totally concealed weapon on or in any motor vehicle if it is impossible to carry it out of reach.

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    Still learning WI law and statutes...

    Why would DNR be involved? Is there no differentiation of 'statute' from 'regulation' or legislative act from bureaucratic regulation? Is the DNR's charter so broad as to encompass a non-hunter?

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    A State statute is a state statute. Statutes apply in any situation. Any law enforcement officer can cite you for a violation. Regulations are statutes that have been adopted as rules. The DNR has adopted 167.31(2)(b) as a rule that applies if a person is transporting a firearm in a motor vehicle for the purpose of hunting. They then call it a hunting regulation. Many people are confused that statuteswhich are used by the DNR to create regulations only apply to activities the DNR has jurisdiction over. Not so. If a local police officer sees an uncased gun in a car he will just as quickly give you a citation for carring an uncased weapon in a motor vehicle as a game warden would.

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    Doug:

    I forgot to add that under Wisconsin law a game warden is considered a law enforcement officer and has the same arrest authority as any policeman or deputy sheriff. In fact they have more authority because they can enter your home without a search warrant and trespass on your property without permission.

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    I'm traveling and don't have regular connections nor time to write...but Wisconsin gun owners must constitute an organization like VCDL to coordinate the rationalization of first the gun laws and then WI Statutes in general. I would suggest looking at, obviously, VCDL's constitution and to Grass Roots Gun Rights SC, the organization with which I am most familiar. Both are to my knowlege quite independent of legacy organizations with excessive historical and political baggage.

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    Regular Member Smurfologist's Avatar
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    Lammie wrote:
    Doug:

    I forgot to add that under Wisconsin law a game warden is considered a law enforcement officer and has the same arrest authority as any policeman or deputy sheriff. In fact they have more authority because they can enter your home without a search warrant and trespass on your property without permission.
    I am not liking the State of "Whiskeyonsin" at all. Someone must have drank too much whiskey when they decided to give a game warden that much power!! I am glad to be living in Virginia via Chicago, Illinois (Lammie, I feel your pain and frustration with your state's gun laws).

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Lammie wrote:
    Doug:

    I forgot to add that under Wisconsin law a game warden is considered a law enforcement officer and has the same arrest authority as any policeman or deputy sheriff. In fact they have more authority because they can enter your home without a search warrant and trespass on your property without permission.
    I have to throw a penalty flag on the play here, a game warden is an agent of the state and therefor subject to the 4th and 5th amendment.

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    Regular Member Smurfologist's Avatar
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    Lonnie Wilson wrote:
    Lammie wrote:
    Doug:

    I forgot to add that under Wisconsin law a game warden is considered a law enforcement officer and has the same arrest authority as any policeman or deputy sheriff. In fact they have more authority because they can enter your home without a search warrant and trespass on your property without permission.
    I have to throw a penalty flag on the play here, a game warden is an agent of the state and therefor subject to the 4th and 5th amendment.
    I was about to say...............Thanks Lonnie Wilson!

    2nd Amendment..........Use it...........Or, lose it!!:X
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