imported post
This post is a copy of an email I recently sent to the Wis. State Attorney General. I don't expect an answer. In Wisconsin the AG does not have to respond to questions from the general public, even though it is an elected position. At least it will give the AG something to think about.
As a state and federally licensed firearms dealer I have the legal obligation to know the federal and state firearm laws. Recently a customer asked me about the legality of carrying a firearm on an all terrain vehicle. I was uncomfortable with answering the question so refered him to the Department of Natural Resources. The question piqued my curiosity so I did some research. My research resulted in some concern and questions of my own. Specifically the enforceability and perhaps the constitutionality of state statute 167.31(2)(b).
During the verbal arguments of State v Hamdan both the State Supreme Court (SSC) and the State AG office acknowledged that there were but two manners of carry, hidden and visible. Both sides were of the opinion that the rights granted by Article I chapter 25 of the state constitution required that if one of the manners of carry is prohibited the State must allow for an alternative mannner.
In State v Hamdan the SSC reviewed the recent constitutional ammendment, Article I chapter 25, and it's impact on the manner in which a firearm is carried. The SSC ruled that the State has the authority to regulate the manner a firearm is carried without risk of infringing on the rights given by Article I chapter 25. In addition to making that judgement the SSC addressed the constitutionality and breadth of the concealed weapon prohibition statute 941.23. The SSC declared that 941.23 was a strict liability statute that prohibited anybody except a peace officer from carrying a concealed weapon. The Court was explicit in stating that there were no exceptions to the statute, including the activities contained in Article I chapter 25.
Also in Hamdan the SSC repeated the conditions that establish concealement. Conditions it initially laid down in State v Kieth.
The person must know the weapon is present.
The weapon must be within reach.
The weapon must be hidden from view.
When carrying a firearm on a single passenger vehicle it is impossible to avoid those three conditions. Compliance with statute 167.31(2)(b) therefore forces a person to go armed with a concealed weapon while in or on one of those vehicles.
A footnote in previous SSC opinion which addressed this apparent conflict of statutes, as well as some advice I have received, suggest that one need only carry the firearm out of reach in a vehicle and thereby avoid one of the conditions that define concealment. Those are outdated opinions. It is impossible to carry a firearm out of reach on many modern vehicles used for hunting i.e. ATV's. snowmobiles, trail bikes etc. Article I chapter 25.
With the relative recent ratification of Article I chapter 25, the SSC rulings in Hamdan and the increasing use of single passenger motor vehicles for hunting, it is difficult to understand how statute 167.31(2)(b) can continue to be enforced.
More important than the enforcement of 167.31(2)(b) is the question of it's constitutionality.
The SSC says that the State has the authority to regulate the manner in which a weapon is carried. The Court defines those manners as being "hidden" and "visible". The Court then says that if the State desires to enforce the prohibition of one manner of carry it must provide for an alternate manner or yield to the constitutional ammendment (Article I chapter 25). In other words the State can't have it both ways without infringing on citizens constitutional rights.
The SSC says that 941.23, the statute that prohibits carry of concealed weapons, has no exception when applied to private citizens.
In State v Walls, State v Frye, State v Fisher, State v Hamdan, State v Kieth and others, it is obvious the State has and intends to vigorously prosecute carry of hidden weapons. Those cases show it matters not that the weapon is on the body or in a motor vehichle. Yet, in regards to carry in motor vehichles , each year the DNR issues numerous citations for carrying the alternative (visible weapons) in or on a motor vehicle as a violation of statute 167.31(2)(b). In fact the DNR is so adamant on this issue that it forbids the carry of a handgun in a holster while being transported in or on a motor vehicle, a manner that would be constitutionally correct. It appears that when it comes to transporting firearms via motor vehicle the State does in fact want it both ways. As the statutes 941.23 and 167.31(2)(b) are currently written it is impossible to carry a weapon on a single passenger motor vehicle without violating one of the statutes. And finally by requiring that weapons be concealed when carried in or on a motor vehicle the State is creating a SSC prohibited exception to statute 941.23.
ddly, when transporting in a vehicle the weapon is required to be concealed (in a proper case, that is). Once it is unloaded and in a case, where it is placedwithin the vehicle is irrelevant.