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Thread: OC in WI

  1. #1
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    Ok just to clarify something here.... OC in Wisconsin is 100% perfectly legal for both resident and NON-resident without a Concealed Carry Permit correct?

    So if I, being a NON-resident of WI, that is not in possession of a WI CCW permit, wanted to go to say,...Madison to visit or vacation etc. I could legally bring my handgun and 'wear/carry' it provided it was NOT concealed?

    Are there areas of restriction?

    Where can you NOT Open Carry? Car? Restaurants? bars?

    Just want to make sure I have ALL my basis covered and info explained beforehand, because if I am ever in WI again...I WILL Open Carry.

    Thanks in advance for the help.

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    Open Carry of pistols is not mentioned in Wisconsin Statutes.

    Concealed carry is explicitly prohibited. There is no Concealed Carry 'permit'.

    Open carry is at the whim of the local cops, virtually all of whom has 'said' that open carriers will be harassed with disturbing the peace/inciting terrorism charges.

    "All your base are belong us" Sorry,

    all the bases to be covered are here http://nxt.legis.state.wi.us/nxt/gateway.dll. Chapter 941 includes 'firearms'.

    Imagine, 1000 chapters of state statutes! And these include case law annotations too. Firearms are mentioned in the chapter on child care, maybe in 'paving material specifications' too.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. LAB/NRA/GOP *******

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    IANAL but my understanding is that you may find that while not illegal, OC in WI will get you some unwanted attention in most urban areas. Maybe not in rural areas.

    In any case, you can't carry in your car at all so you would need to unload and encase before entering your vehicle.

    OC is thus legal, but highly impractical. There are also school zone issues to worry about, and maybe some other traps I am not aware of.

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    OC is completely legal, but like ilbob mentioned it will draw unecessary attention in urban areas. Cops in some major cities seem to have an unwritten rule to hassle people OC'ing. Based on my reading of posts on this site, rural areas are more accepting of it but I have not personally tried.

    Since concealed carry is explicitly illegal (except for police) then by process of elimination OC has to be legal or people don't have the right to bear arms. The fact that somebody should be subject to possible disorderly conduct for exercising his or her rights is a crock.

    Regarding cars, the firearm must be "encased" in a case designed to hold a pistol, and "unloaded" with no round in chamber or magazine directly attached to a gun. Use caution when carrying in your car since under the law and circumstances one could be charged with concealed carry since the pistol is 1. within reach 2. you are aware of its presence 3. it is concealed. The concealed carry law makes no distinction between loaded and unloaded firearms.

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    47 years in Wisconsin, 25+ as a police officer.

    The following is not to be taken as legal advice:

    Open carry is not illegal, but will get you unwanted attention. If someone makes a complaint about it, it has to be investigated. The Disorderly Conduct statute in this state is a vague "cover all" law, but the wording doesn't fit open carry if you ask me. I've never made a DC arrest strictly for open carry, and my guess is it would be very hard to get a conviction for, or the conviction wouldn't survive an appeal. But even so, the time spent fighting the charge would be a hassle.
    I'd actually like to see an open carry case go to the state supreme court so it's legality could be confirmed once and for all.


    DO NOT CARRY in a vehicle. DO NOT CARRY in any place that serves alcohol. DO NOT CARRY in or on any government owned property. DO NOT CARRY in a school zone.
    There are specific laws forbiding all of these places.




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    pkbites wrote:
    If someone makes a complaint about it, it has to be investigated.
    Why? If someone calls to report someone walking down the street wearing a black hat does that get investigated, or does the dispatcher tell them that just wearing a black hat is not a crime?

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    Yes please.

    Is this local SOP or buried somewhere in the Statutes? Does the form of the complaint allow, e. g., for willful violations of COWisc I 25 to be investigated?

    I suppose my root complaint is of the 1000 Chapters and 10,000 annotations of Statutes.

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    ilbob wrote:
    pkbites wrote:
    If someone makes a complaint about it, it has to be investigated.
    Why?
    Any time the complaint includes the word "gun" or "weapon" a squad gets dispatched. Just the way it is. Then the officer at the scene makes the determination if there is a violation, not a civilian dispatcher sitting in a comm room.

    Believe it or not, I've been dispatched several times to man with a gun calls that turned out to be be guys taking their encased hunting rifle out of the trunk of their car. Encased, for cripes sake!!!

    ilbob, I probably don't have to tell you how retarded some people are around here about firearms. It's ridiculous!




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    nysarsenal wrote:
    Where can you NOT Open Carry? Car? Restaurants? bars?
    If you go by strictly what's in the statutes, as already mentioned in a car it has to be unloaded and encased, same goes for in a school zone (presumably meaning on foot, since if you're in a car it's redundant)-- although "school zone" does not include private property within 1000' of school grounds.

    Restaurant? Depends if it has a "Class B" liquor license (i.e., alcohol served for consumption on the premises. There is no legal prohibition against long guns in bars! (The law specifically says only handguns, so feel free to lay that Mossberg 590 with bayonet on topthe bar when you order your Shirley Temple! :celebrate-- you aren't planning on consuming alcohol while armed are you? :what

    Getting back to the car-- keep it encased and unloaded, period. Anyone who says that the case is concealing it or you have to keep it in your trunk is BS'ing you. You can have it anywhere in the car you want as long as it is unloaded and encased. On the seat, on your lap, under the seat, it doesn't matter legally.

    Thanks to the Hamdan opinion, in your own home or business you can legally conceal any weapon you want.

    A lot of municipalities have local ordinances still on the bookssaying thatyou can't carry any gun that isn't "encased" or "broken down" or you have to be a "pease officer"etc etc. As they say in NY, FUGGITABOUTIT!!! Other than ordinances regulating the discharge of a firearm, you can ignore them. Any local ordinance regarding firearms is unenforceable if it has something more strict that state statutes in it.

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    dangerousman wrote:
    it doesn't matter legally.
    Attorney? Otherwise you might introduce yourself as IANAL.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. LAB/NRA/GOP *******

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    IANAL; Discharge ordinances cannot be stricter than the State statutes regarding the same. Perhaps discharges could be covered under disorderly conduct or evena noise violation, but the preemption law does include the act of using a firearm as being protected from local ordinances.

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    Rick Finsta wrote:
    IANAL; Discharge ordinances cannot be stricter than the State statutes regarding the same. Perhaps discharges could be covered under disorderly conduct or evena noise violation, but the preemption law does include the act of using a firearm as being protected from local ordinances.
    Simply not true. The preemption law specifically allows municipalities to regulate the dischage of firearms:

    66.0409(3)(b)
    "Nothing in this section prohibits a city, village or town that is authorized to exercise village powers under s. 66.22(3)
    from enacting an ordinance or adopting a resolution that restricts the discharge of a firearm."


    Nothing in the state law prohibits you from holding target practice on, say,Main Street or in your urban backyard, but I'll bet you'll find a valid local ordinance that prohibits it. I'm not sure there are any state laws regarding the safe discharge of firearms, other than some hunting regulations regarding hunting too close to roads, or near somebody's house when not on your own property-- and those may possiblybe DNR Administrative Code, not statutes.
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    IANAL But if you are going to have an unloaded, encased pistol in your car, it may be best to not have it on your lap. Any cop knows what a pistol case looks like and he will not take kindly to him seeing it on your lap if he stops you. And cops don't like you moving your arms all around the car as they stop you (it would be you putting the pistol somewhere else than your lap) it is a possible sign of you grabbing something to use against them. IANAL but keeping the pistol case out of sight is the best approach.....

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    smithman wrote:
    IANAL But if you are going to have an unloaded, encased pistol in your car, it may be best to not have it on your lap. Any cop knows what a pistol case looks like and he will not take kindly to him seeing it on your lap if he stops you. And cops don't like you moving your arms all around the car as they stop you (it would be you putting the pistol somewhere else than your lap) it is a possible sign of you grabbing something to use against them. IANAL but keeping the pistol case out of sight is the best approach.....
    The question was on the legality, not the advisability of having an pistol case on your lap. I keep mine on the seat next to me, it's not significantly different than having it on my lap. I wouldn't care if the police saw it. I'm not embarassed to be carrying a gun.

    Everyone, including police, have things they don't approve of that are perfectly legal. So what? Police ought to enforce laws, not opinions. If they don't like it on one's lap, tough, they're not the only one's entitled to have weapons.

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    Hmmm I missed that language last time I went through the statutes.

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    Getting back to the car-- keep it encased and unloaded, period. Anyone who says that the case is concealing it or you have to keep it in your trunk is BS'ing you.
    There is at least one guy (currently out on bond) thatI am aware of who was arrested and charged with CCfor havingan unloaded and encased firearm in his vehicle.

    Walworth County arrest of an Illinois resident.

    I will ask him to comment. Maybe he will.

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    Hello, Rick, welcome to OCDO. I've ridden bicycle thru Saukville, from Belgium/Port where I occasionally visit on Sandy Beach South.

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    dangerousman wrote: Thanks to the Hamdan opinion, in your own home or business you can legally conceal any weapon you want.

    Not true. The Hamdan decision set up a three-pronged test to determine (case by case basis) if the CC is lawful. While a person in the situation you describe would probably be ok, it is not a slam dunk.

    smithman wrote: Regarding cars, the firearm must be "encased" in a case designed to hold a pistol, and "unloaded" with no round in chamber or magazine directly attached to a gun.

    You are still carrying in violation of 941.23. The provision in 167 is separate and does not provide a defense to a violation of another statute. It doesn't have to make sense...it's the law. For all practical purposes, the only way to carry in a vehicle is in the trunk or something similar. How you get it there is also problematic. For analysis, read my posts of several months ago.



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    dangerousman wrote: Getting back to the car-- keep it encased and unloaded, period. Anyone who says that the case is concealing it or you have to keep it in your trunk is BS'ing you. You can have it anywhere in the car you want as long as it is unloaded and encased. On the seat, on your lap, under the seat, it doesn't matter legally.

    Sorry, I missed this part. I provided a lengthy analysis as to why your position is incorrect. Please provide an argument that supports your contention.

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    To make like easier for Mr. Dangerousman, I have copied my post of long ago below, with emphasis in red.

    It appears that open carry is required in some circumstances. You generally cannot carry concealed and under the definition given in the case below, an unloaded, encased handgun is still a concealed “dangerous weapon” and you cannot have it on your person (or next to you on the seat of a car). Now you can transport it in the trunk but how do you get it to/from the trunk? I suppose under Hamdan, it is not problem if your starting/ending points are your home and/or business but what if you want to go to a commercial range?

    941.23 Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.


    To "go armed" does not require going anywhere. The elements for a violation of s. 941.23 are: 1) a dangerous weapon is on the defendant's person or within reach; 2) the defendant is aware of the weapon's presence; and 3) the weapon is hidden. State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).

    939.22(10) "Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon, as defined in s. 941.295 (4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

    167.31(2)(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.

    New note: So if you want to carry next to you, there is a choice - violate 941.23 or violate 167.31(2)(b). Although it is probably easier to be caught in violation of 167, I'm guessing the penalty would be less than that of a CC charge. I'd prefer to avoid both. Just because 167 tells you how to avoid transgressing its provisions does not mean that you can use those provisions as a defense to 941.23. Wisconsin is Wacky...just accept it.


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    ilbob wrote:
    Getting back to the car-- keep it encased and unloaded, period. Anyone who says that the case is concealing it or you have to keep it in your trunk is BS'ing you.
    There is at least one guy (currently out on bond) thatI am aware of who was arrested and charged with CCfor havingan unloaded and encased firearm in his vehicle.

    Walworth County arrest of an Illinois resident.

    I will ask him to comment. Maybe he will.
    as might be expected, he is unable to comment on his case on advice of counsel.

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    apjonas wrote:
    New note: So if you want to carry next to you, there is a choice - violate 941.23 or violate 167.31(2)(b). Although it is probably easier to be caught in violation of 167, I'm guessing the penalty would be less than that of a CC charge. I'd prefer to avoid both. Just because 167 tells you how to avoid transgressing its provisions does not mean that you can use those provisions as a defense to 941.23. Wisconsin is Wacky...just accept it.
    The only problem I see here is that keeping a weapon on your person, even if in plain view to a passenger, while in a vehicle, it is easily considered "concealed from view" to a reasonable person outside the vehicle. So in essence, you would probably be charged with violation of BOTH statutes for open carrying in a vehicle, or just a concealed carry violation (max. $100 fine) for carrying it unloaded and cased next to you. Odd, I think, that Andres Vegas was not charged for both, only concealed carry, for keeping a gun next to himself on the seat. I'd have to take a look and see if he had it underneath something or otherwise concealed from view in the vehicle, or just concealed BY the vehicle.

    Uuuugh.

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    I have pursued the obvious conflict between statutes 941.23 and 167.31(2)(b) quite vigorously. Staute 941.23 being the statute we are all familiar with that prohibits common citizens from carrying a concealed and dangerous weapon and statute 167.31(2)(b) requiring a firearm to be unloaded and encased in a carrying case if it is transported in or on any motor vehicle.

    The State Supreme Court has ruled that if the following three conditions are met the State has cause to charge a violation of 941.23 (State v Hamdan 2003). 1) The weapon is within reach 2) The weapon is hidden from ordinary view 3) The person knows the weapon is present. On the surface it's obvious that compliance with 167.31(2)(b) puts a person at risk of violating 941.23. However, the SSC has reviewed this apparent conflict and ruled that it didn't see a particular problem because if a person was concerned with violating 941.23, while complying with 167.31(2)(b), the person needs only to carry the weapon "out of reach" (whatever that means, the Court doesn't define out of reach or out of reach of who). Carrying the weapon out of reach removes one of the conditions that define concealment.

    Concerned with the stupidity of those comments I contacted my state senator, the top lawyer at the Department of Natural Resources and the Attorney General Office. Initially the DNR and my senator quoted the above comments and more or less said end of argument. However, I reminded them that statute 167.31(2)(b) says any vehicle and that there are many vehicles used in the sport of hunting or firearm recreation that are constructed so that it is impossible to carry a weapon "out of reach". Some examples I used were snowmobiles, ATV's, trail bikes, motorized wheel chairs and small rubber rafts propelled by an electric trolling motor. It is lawful to carry a firearm on any of those vehicles but doing so in compliance with 167.31(2)(b) definitely violates all three conditions of concealment.

    After a few more rounds of discussion both the DNR and my senator agreed that under the conditions I described there was a conflict between the two statutes. When I asked each of them what they intended to do about the situation. Their response was disturbing. My senator said that firearm issues were not "on the floor" and that the legislature would unlikely do anything about it. The response from the DNR was even more disturbing. The DNR said that even if enforcement under the conditions I described was questionable, the DNR would continue to enforce it on all vehicles, and turn their head concerning 941.23. The DNR said how local law enforcement would view the situation is a matter for their judgement.

    The Attorney General Office responded by saying that state staute prevented it from answering questions from the general public so it could not comment. It did say that I had obviously done good research and presented a good argument. (reading between the lines it seems the AG supports my opinion but can't endorse it because I am a private citizen).

    Because satute 167.31 can't be uniformally applied to all vehicles without putting a person at risk of violating 941.23 and because carrying a weapon on certain lawful vehicles prevents a person from exercising rights given by Article I chapter 25 of the state constitution (you can't carry it concealed and you can't carry it unconcealed) there is no question in my mind that one or both of the statutes is unconstitutional.

    Unfortunately, because it takes some extaordinary situation or activity to get the legislature or law enforcement or the attorney general to fix bad laws it falls on private citizens to get arrested and spend time and money and go through the judicial system to get anything to happen. That being the case we are going to be under the shadow of the two statutes and at the enforcement whim of the agency that is involved for quite some time. For example: If you are riding your trail bike through town on your way to a shooting range and have a handgun in a "rug", local law enforcement would probably come unglued and claim you are carrying a concealed weapon. On the other hand a DNR conservation officer would see that the firearm is properly encased and that you are on your way to exercise one of the activities in Article I chapter 25 and tell you to have a good day.

    One thing I did find out is that the Attorney General must give opinion to any legislative representative. Mine probably won't get involved but if one of you has a gun friendly representative or senator that would be willing to present the "single passenger vehicle" argument, and ask for an AG opinion, this mess can get resolved.

    This vehicle carry restriction is the only real impediment we have to open carry. We can live with the only other restrictions of carry in government buildings, on sale liquor establishments and school zones.






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    Mr. Lammie,

    You are actually using the test from the Keith case as to what constitutes a violation of 941.23. Hamdan's test is to determine whether or not concealed carry is constitutionally permitted under the circumstances. Hamdan was but later, Fisher was not. The annotation says:

    This section is constitutional as applied in this case. The defendant's interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state's interest in prohibiting him from carrying a concealed weapon in his vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495

    So perhaps open carry in a vehicle is a better choice. In hearing such a case, the court would probably use similar reasoning but then they are faced with the Catch-22 situation. I would expect them to drop kick 167 rather than reverse Fisher. If they tried to keep both, they would be saying that the Sec. 25 of the state constitution is a dead letter and that the referendum process is meaningless. Not that this matters much, nobody is willing to test open carry on foot so talking about vehicle carry seems superfluous. Why do the folks in Virginia have brass balls about this issue while people in Wisconsin seem to leave their set at home? Are the laws that different? How is Northern virginia's hatred of open carry different that that of the Madison-Milwaukee axis? Geographically speaking, probably 80% of both states are on your side.

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    I can speak of the difference between SC statutes and Wisc. statutes. Wisc code is a POS compared to SC.

    In SC we could appeal to legislative intent for clarification/extension of a statute. In Wisc,. a 'simple' statute may have a hundred annotations of case law that completely reverse the apparent legislative intent.

    In Wisc. we have the Revisor of Statutes Bureau that seem to be the Laputian 'flappers' for the Legislature.

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