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Thread: Wisconsin open carry or concealed carry?

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    Concealed Carry or Open carry in Wisconsin?

    Article 1 chapter 25:
    The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

    Article 1 chapter 26:
    The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law.

    Statute 66.0409(2):
    No political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, delay, transfer, ownership, use, keeping, possesion, bearing, transportation, licensing. permitting, registration, or taxation of any firearm, including ammunition and reloader components, unless the ordinance or resolution is the same or similar to and no more stringent than, a state statute.

    State v Hamdan (2003):
    The supreme court held that not withstanding Article 1 chapter 25 the state has the authority to regulate the manner of carry of firearms therefore the concelaed carry prohibition statute 941.23 was constitutional. The Court also said there were two manners of carry, visible and hidden. The court also declared that if the state intends to prosecute against one manner of carry it must provide for a resonable alternative or yield to the ammendment. The court said that if a person is carrying a firearm for a lawful purpose the burden is on the state to prove it was carried for an unlawful (criminal) purpose. Note: This would tend to "shoot down" the disorderly conduct theory.

    State v Hamdan (2003)
    The State prosecuters argued that if Hamdan had been wearing his firearm in a holster (visible) he would not have been charged. Governor Doyle was Attorney General at that time and a member of the prosecution.

    Governor Doyle's comment as recorded by the Wisconsin Dells Events paper dated March11 2006:
    "If you want to carry a gun. Wear it on your hip".

    What is significant about the above information?

    First:They all support in various degrees the right to open carry firearms in the state of Wisconsin.

    Second: They destroy the local ordinance "disorderly conduct" theory. The State doesn't consider the peaceful carry of a firearm as disorderly conduct, therefore, statute 66.0409(2) prohibits local political subdivisions from doing so.

    Third: They are all relatively new. All happened after 1995.

    Fourth: In regards to open carry they may in combination endow the citizens of Wisconsin with the most liberal firearm carry and ownership rights in the nation.

    So, Open carry or concealed carry? What are the pros and cons?

    The pros and cons as I see them.

    Open carry pros:

    . No license requirements. No costly certification requirements. No renewal requirements, Few retricted locations.
    1. You can't carry in a school zone unless you live there or are conducting a training class where firearms are required.
    2. You can't open carry a loaded firearm in or on a motor vehicle. 167.31(2)(b).
    3. You can't open carry in a goverment building. 941.235.
    4. You can't carry a loaded firearm in a place that sells on sale alcohol.

    Open carry cons:

    Public discomfort.
    No background checks.

    Open carry personal restrictions:

    A person with a handgun must be of legal age. Must not be a convicted felon. Must not be charged with domestic abuse or violence.

    Concealed carry pros:

    Public comfort.
    Background check.

    Concealed carry cons: (Information from recently failed Personal Protection Act)

    License requirement ($75). Certification classes ($150 - $300). Renewal requirement. Numerous restrictions on carry locations. Carry restrictions at proprietor discretion. Discriminates based on ability to pay.

    Concealed carry personal restrictions.

    Must be 21 years of age. Must not be a convicted felon. Must not be charged with domestic abuse or violence. Must have a CCW license. Must have evidence of certification training.

    Conclusion.

    There is no doubt in my mind that the information I cited at the beginning of this post establishes the free right of Wisconsin citizens to open carry firearms for their personal protection. Unfortunately under current social environment doing so would probably make the general public uneasy. I have to admit I would myself feel uneasy if I saw a large number of people walking around with firearms on their hips. That is the one thing concealed carry has going for it "Out of sight. Out of mind." I would not object to some reasonably priced and restricted concealed weapon privilege for those who wish to obtain a permit. I would only accept it on the conditions that it is written as a priviledge and not a right (For example: A drivers license gives one the privlege to drive. Not the right to drive). A privlege may have a price associated with it however, our constitutional rights are priceless. The other condition I have is that a concealed carry statute in no way pre-empts or restricts our current right to open carry. I will in no way sell out my rights just to get on the concealed carry band wagon. I have too many relatives that gave their lives fighting for our rights.

    There is one thing that any movement or comittee that intends to resurect the concealed carry initiative should keep in mind. The road to tyranny is built one brick at a time.

    The now deceased Personal Protection Act was championed by a number of well meaning, very dedicated individuals that spent many years shedding blood, sweat, tears and dollars.trying to get concealed carry passed. a movement that started before the ammendments and statutes I referenced above were made into law. Unfortunately they were too close to the issue and never stepped back to see what was happening to our firearm laws right under their noses. They were so obsessed and certain of winning that they gave up too many concessions in order to win political support and they were so sure of winning they refused to "upset the apple cart"and modify the bill. I know. I had numerous conversations with WCCA, Rep Gunderson's man Mike Bruhn and Senator Zien on the subject.

    By not recognizing the significance of the changes our firearm rights were going through it's my opinion they made the tactical error of not playing the Open vs Concealed card. I think that if many of the political opponents were faced with the choice between many people walking around with visible firearms with few restrictions and people carrying concealed firearms with numerous restrictions they would have chosen the later and the governor's veto would have been easily overridden.











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    Great points.

    But how do you get past local ordinances such as Disturbing the Peace or Disorderly Conduct?

    That's the question I've been asking every attorney I can talk to, and nobody has given me a satisfactory answer.

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    Read statute 66.0409(2) again. Especially the word "bearing". If the state does not consider bearing firearms in public as disorderly conduct or disturbing the peace, (and of course it does not otherwise there would be no need for statutes 941.235 and 941.237) then 66.0409(2) prohibits a political subdivision from doing so. This of course presumes the person bearing the firearm is acting in an orderly and lawful manner. In fact I believe it is statute 66.0409(4) that nullifies any local ordinances that prohibit carry of firearms. I repeat thethreat of disturbing the peace and disorderly conduct are only scare tactics used to keep us sheep in line.

    Note: statutes 941.235 qnd 941.237 which resrtrict the areas a firearm may be carried are obviously intended to apply to the general public. Surely an on-duty police officer can carry in those locations in the performance of his/her duties. In fact if 941.235 was intended to include peace officers they wouldn't be able to carry their firearms in their own sheriff department. A sheriff department is a govermnet building.

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    I'm not questioning the state pre-emption law.

    What I'm asking is if the state law defining Disorderly Conduct or Disturbing the Peace can override local statutes.

    This is where we need an attorney's opinion.

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    I agree with (almost) everything you say (I don't think I would necessarily feel uneasy by large numbers of people wearing sidearms. It depends upon who they are. It only takes ONE idiot with a weapon to make me feel uneasy-- but that's no different than the unease I feel when I see an idiot who is driving a car; and I live with that almost every day that I leave the house.)

    I think if you read previous posts of mine you will see that I have long advocated open carry as a means to achieve concealed carry in Wisconsin. I think we have the right to both. Unless you have an unfortunate incident or you simply do not conceal well, you can carry concealed in Wisconsin without anyone being aware of it. There's always that nagging concern, however, that you'll be caught and have to deal with the legal system. We shouldn't have to put up with that.

    As has been discussed ad nauseum in this forum, there's the nagging concern that OC will ALSO give you an appointment with the legal system in Wisconsin. And that's just not right and we definitely shouldn't have to put up with that.
    A. Gold

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    Think about it a little. In p48 of State v Hamdan the State Supreme Court stated that the concealed weapon statuteis a strict liability statute, without exception, that applied even to the activities contained in Article 1 chapter 25. In p69 the SSC also indicates that there are only two manners of carry, hidden and visible. If hidden is verbotten thenany local political subdivison attempting to deny visible carry by charging a violation of state disorderly or disturbing the peace statutesisguilty of taking away the only alternate means to hidden carry for a person to exercise their constitutional rights given by Article 1 chapter 25. I think any prosecuting attorney presented with that argument would refrain from proceeding, especially if there were no conditions of abnormal conduct exibited by the person when charged.

    The state pre-emption statute 66.0409 is only a little over six years old. In regards to our firearm rights many people fail to recognize just how powerful it is. It is sending a message to political subdivisions that in effect says. If the state doesn't have a prohibition or restriction of a firearm activity you better damn well not have one either. There are only two exceptions to that. A political subdivision may prohibit discharge of a firearm within its jurisdiction and it may assess a sales and/or use tax on sales of firearms and firearms related items. 66.0409 is available on the internet. it only has 4 sub paragraphs. It doesn't have any "weasle words" in it.

    Monkeyleg: Your biggest challenge is to find an honest attorney that is sensitive to our cause. Especially in the Madison/Milwaukee areas.



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    Lammie, I've already talked to the three NRA-recommended attorneys here in WI. And they all said the same thing: you can be arrested for DC or DP charges.

    DC and DP aren't just state charges. Just about every municipality has disorderly conduct or disturbing the peace provisions in the municipal code. I don't see how these local ordinances can be overridden by the state pre-emption law, as the law doesn't address either of those charges.

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    Wait a minute. Why is it my challenge?

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    Monkeyleg wrote:
    Lammie, I've already talked to the three NRA-recommended attorneys here in WI. And they all said the same thing: you can be arrested for DC or DP charges.

    DC and DP aren't just state charges. Just about every municipality has disorderly conduct or disturbing the peace provisions in the municipal code. I don't see how these local ordinances can be overridden by the state pre-emption law, as the law doesn't address either of those charges.

    Sorry for the language, but NRA attorneys need to grow some balls and defend our peopleagainst any D.C. and D.P.charges like the ACLU defends their people!

    Constitutional Rights are only worthanything when wedefend themagainst vague laws that seem to supersededRights.What we need is anational legal defense fund so theselaws can be challenged by people with standing like Parkervs. DC.

    I just don'tunderstand the NRA sometimes. They've got themoney and I'd be for an increase if my dueswould cover attorney costs for non-violent gun related charges likepossessionfor OC and CCWissues. Plus some states allow for the winning side to have the attorney costs paid for by the loosing side in civil cases, thereby reclaiming the potential losses.

    The attorney's for my police officer association love thiswhen sueing our employer over violations ofour contracts and rights.




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    Monkeyleg wrote:
    Wait a minute. Why is it my challenge?
    It's a challenge for all of us. I pony up my wifefor a test case!

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    I've spoken to a Madison attorney months ago who said he would happily defend me should I ever be charged with DO for OC. I keep his number on my cellphone. I believe he'd be very aggressive in his defense.
    A. Gold

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    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    I was born and raised in Northern Illinois, only an hour south of the WI border, but this summer you can bet I'll be taking a trip to IL, then up to WI and I WILL OC!!!!

    I'll be looking forward to challenging the MILWAUKEE authorities on DC charges.

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    Please keep us posted on the outcomes of your efforts.

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    This is what the Wisconsin Supreme Court says about the state disorderly conduct statute 947.01. The paragraph is extracted from the State Supreme Court ruling in State v Douglas J, (00-1767-FT). The ruling was published May 16, 2001.



    ΒΆ15. Section 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct. See State v. Zwicker, 41 Wis.2d 497, 514, 164 N.W.2d 512 (1969). Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Id. Under both elements, "[i]t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation." State v. Maker, 48 Wis.2d 612, 616, 180 N.W.2d 707 (1970).

    Preemption statute 66.0409 prevents any political subdivision from a more stringent interpretation and application.

    It is going be very hard for anyone to convince me that a person peacefully going in public with a visible firearm in excersize of there state constitutional rights can possibly be charged and convicted for disorderly conduct. Notice in the quote within the paragraph that starts "To prosecute....." The State must prove the two elements not just claim they occured.

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    Wait a moment. We all know the NRA attorneys are "legends in their own minds" They claim to be concerned with our individual liberties. To me their actions indicate they are more concerned with the political mileage they can get out of a particular incident. Where have they been since the Wisconsin PPA veto was upheld and the Democrats took over the state legislature after the 2006 election?

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    "This is what the Wisconsin Supreme Court says about the state disorderly conduct statute 947.01."

    What, if anything, has the WI SC had to say about municipal code regarding DC or DTP?

    Please know that I'm not arguing with anybody here. I'm asking questions.

    From what I've been told, WI's pre-emption law does not affect municipal violations such as DC or DTP.

    Also, from what I've been told, state statutes regarding DC or DTP do not override municipal.

    Given that we're not likely to get a CCW law passed in the next two years, or more likely four years, a challenge to the DC or DTP charges for open carry makes the most sense.

    So, who do we consult?

    Before anybody badmouths the NRA-recommended attorneys, these guys have been doing pro-bono work for years. Cut them some slack.

    Ideas, not insults.

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    Monkeyleg wrote:

    Before anybody badmouths the NRA-recommended attorneys, these guys have been doing pro-bono work for years. Cut them some slack.

    Ideas, not insults.
    Are they winning cases, thereby making money and curbing abuses against Joe Citizen, and showing the members that the NRA will fight abuses as vigorously as the ACLU? Not to my knowledge.

    Granted, they do good work at the national high powered lobbying level, but what about encouraging some "civil disobedience"(open carry in the face of threateneddisorderly conduct charges)and then defending the arrestees. Cities and states don't like to be taken to court and loose. I don't see the NRA doing this at a local level. I wish they would in some States where circumstancesfor a winare likely based on the laws of that jurisdiction.

    The Virginians, with the law on their side, still occasionally have Leo trouble and do a great job of turning up the heat on the authoritiesthe way the NRA should with all ofit's resources.

    An open carry win against departmentsin Wisconsin that threaten DC charges would perhaps mirrorOhio's road to shall issue CCWlaws and OC acceptance.

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    The preemption statute is law that was added to State statutes specifically to address firearms. Municipalities are political sudivisions of the State. The words are there to fight any DO charge involving firearms. Any charge, even as minor as traffic fines, an be appealed up to and including the State Supreme Court (that is what the word supreme means.It is the SSC that has the final word on the meaning of law within the State.

    For example: State v Gerrits (99-0817-CR) Sept.8, 1999.

    The city of Appleton, WI charged and convicted Todd Gerrits for violating its disorderly conduct law because a police officer thought Gerrits was playing music too loud in his truck. The conviction was appealed all the way to the Supreme Court. The Court determined that the DO charges were unjust because even though the music was apparently loud it was not conduct that was likely to "cause or provoke a disturbance".

    by the court - Judgement reversed and case remanded.

    Monkeyleg: This is not hearsay. I have done a lot of research on DO. My statements,in all probability, may not be 100% correctbut they are taken from case proceedings. I have tried to keep my personal opinions out of the equation.

    Don't jump on the words "cause or provoke a disturbance." The SSC has also upheld that something that may be an irritation to one or two individuals is not considered a disturbance. A disturbance must affect the public as a whole.









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    Thanks for citing that case, Lammie.

    It looks like we'd need a test case, someone willing to be arrested and go to court.

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    I'll do it if someone can afford me an atorney

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    Brigdh wrote:
    I'll do it if someone can afford me an attorney
    Buy some legal insurance and don't tell them you have a pre-existing condition that will result in anarrest!:?

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    Monkeyleg wrote:
    What I'm asking is if the state law defining Disorderly Conduct or Disturbing the Peace can override local statutes.
    http://glocktalk.com/showthread.php?...p;pagenumber=1

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    pkbites (a WI LEO) who apparently is now in the witness protection program at one time said something to the effect that some state laws are assimilated by local governments as an ordinance. In other words, there is a state DO statute and a local (say city) DO ordinance. Which you get charged under is up to the prosecutor. The state charge (which I guess is a misdemeanor) would carry heavier penalties that the ordinance violation. This is from memory, I wish pkbites would return. Does this anwer your question?

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    apjonas wrote:
    Well, kiddies I'm gone. OCDO has finally reached PDO condition. The newest technique is for a moderator to prevent comment on, corrections to, or other response to demonstrably false and silly claims. If the members want this board to be a mutual admiration society (or more crudely, a circle jerk) so be it. At the beginning, I had much hope for this endeavor but it seems (any psychologist chime in) that there is always a slow, steady migration to group think and control by the most vocal posters. Thus, once it has been established that the correct position (also know as the "party line") is A, anybody who suggests B, or heaven forfend, C-Z is pounced upon. Name calling and insults become the order of the day rather than a rational, logical and calm discussion of the issues. Sometimes people throw out communication stopping words (a la "Nazi") because they have no counterargument. This type of "winning" may be comforting to some but it simply undermines the effort towards (what I thought was) a common goal. People at LCAV, TBC, etc. must laugh their posteriors off when they read (and they do) some of the posts here. With such people as opponents they must be encouraged. I sometimes think that the posters who engage in undermining tactics are really moles. Would that be paranoid? I sincerely hope that OCDO can pull out of its death spiral. I won't offer suggestions because they will be attacked by those who see themselves in my words (then again some may be so oblivious to their actions that they think I'm talking about the "other guy.") Apologies for any errors here. I don't want to take the time to edit. I will read posts from time to time to see if the atmosphere has changed but I have little hope. Good luck to all.

    Andrew Percival Jonas

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    Monkeyleg wrote:
    Lammie, I've already talked to the three NRA-recommended attorneys here in WI. And they all said the same thing: you can be arrested for DC or DP charges.

    DC and DP aren't just state charges. Just about every municipality has disorderly conduct or disturbing the peace provisions in the municipal code. I don't see how these local ordinances can be overridden by the state pre-emption law, as the law doesn't address either of those charges.

    Monkey,

    I would expect the NRA-recommended attorneys to respond that way, but YOU have to understand why, and not take their advice as be-all, end-all. Two years ago, when I hooked up various people in WI with the NRA, Ohio RKBA orgs, and the founder of Ohio's OC walks, it was the same story.

    Here in Ohio, the Klein vs Leis court decision was not undertaken with the help of NRA lawyers, but it was helped behind the scenes with the SAF/CCRKBA.

    To clarify: the open carry walks were NOT sanctioned by the NRA, or initialized by one of Ohio's RKBA organizations at the time, they were started by an individual, and the intial walk was publicized mostly by local (Cincinnati) media. Ohioans for Concealed Carry was present, and observant, but did NOT sanction it - they merely reported on it.

    As things picked up steam, that arrangement changed (still OFCC never organized a walk).

    Lammie has done as masterful job (I presume accurately) of summarizingthings from a legal perspective there in WI.

    Apjonas wants a declaratory judgement (which I have no idea why this route hasn't already been taken), the NRA wants legislative action, and WI is still status quo.As I've asked dozens of times before- WHEN are you guys going to start the walks??

    The original organizer gauged the climatehere for his walk, and you all can no doubt do the same - some areas will be more accepting than others, and the ones that say "We'll arrest everyone" you can avoid - butwhy let that stop the whole effort? Pressure will build, and that's exactly what you want.




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