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Thread: open carry day before deer season

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    I was contemplating a deer hunt in Michigan this year, and discovered that if you are not from a state that you have CC you cannot even bring a handgun into the state. That got me to thinking about Wisconsin's law that you cannot carry or possess any weapon on the day before deer season. Is this a reasonable restriction or does Heller throw water on this?

    I called the Green Bay DNR office and they explained this law is still in place, to combat poachers. I guess it's the time-provenscenario that we are all violators, they just have to catch us.

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    I have never heard of this before - do you know the Administrative Code citation? Where exactly does this law supposedly apply?

    It certainly sounds like it would fail the Wisconsin Supreme Court's precedent from Hamdan, as it is a complete prohibition on carry, not just a restriction on the manner of carry. You've got my interest...

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    Found it - NR 10.09(2)

    (2) SPECIAL ONE-DAY RESTRICTION. During the 24-hour period prior to the opening date for the regular gun deer season established in s. NR 10.01 (3) (e), no person may possess a gun wherein there is an open season for deer with guns specified ins. NR 10.01 (3) (e), unless the gun is unloaded and enclosed within a carrying case. Exceptions:
    (a) Target shooting at established ranges.
    (b) Hunting on licensed game farms and shooting preserves.
    (c) Hunting waterfowl during the open season.


    I seriously doubt this would pass muster in court if challenged, as it clearly inhibits ones right to bear arms for security to say the least. It's wording is clumsy, too (go figure, the DNR wrote it), as it says you can't have ANY gun if you're in a place that has hunting with SPECIFIED guns. Yeesh.

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    Another stickey wickett in Wisconsin's convoluted firearm laws. The issue of possesion of firearms the 24 hours prior to opening day of deer season is decades old. It really gets muddied in that it is caught between two constitutional amendments, Article I section 25 and Article I section 26. Article I section 26 is the amendment that gives the people of Wisconsin the constitutional right to hunt, fish and trap. Article I section 26 has one additional element that Article I section 25 does not. It has the phrase "subject to reasonable regulation". State statute 29.04 gives the DNR the authority to establish game rules, regulations and seasons. State statute 29.04(2)(b) says that any rules and regulations made by the DNR are Pima Facia and considered reasonable until declared not reasonable by court action. Whether Article I section 25 or Article I section 26 would win out in a court battle is anyone's guess.

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    I don't think it's really pitting the two articles against each other. Article 25 protects rights that have nothing to do with hunting. Where there is overlap, THEN you would have to ask which Article has supremacy, but in this case that is moot. If I carry a firearm for any lawful purpose during this day, then that is protected activity that has nothing to do with the regulatory powers of the DNR. If I carried a firearm for an unlawful purpose (such as poaching) then I wouldn't be protected by Article 25 in the first place - and deference would be given to the DNR, I'm sure.

    I can't believe people let this type of crap EVER get onto the books.



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    Rick Finsta wrote:
    Found it - NR 10.09(2)

    (2) SPECIAL ONE-DAY RESTRICTION. During the 24-hour period prior to the opening date for the regular gun deer season established in s. NR 10.01 (3) (e), no person may possess a gun wherein there is an open season for deer with guns specified ins. NR 10.01 (3) (e), unless the gun is unloaded and enclosed within a carrying case. Exceptions:
    (a) Target shooting at established ranges.
    (b) Hunting on licensed game farms and shooting preserves.
    (c) Hunting waterfowl during the open season.


    I seriously doubt this would pass muster in court if challenged, as it clearly inhibits ones right to bear arms for security to say the least. It's wording is clumsy, too (go figure, the DNR wrote it), as it says you can't have ANY gun if you're in a place that has hunting with SPECIFIED guns. Yeesh.
    As I understand it, that is a RULE. The applicable STATUTE would be:

    29.312(2)
    (2) The department may not promulgate or enforce a rule that prohibits a person from sighting a firearm on land owned or leased by that person or a member of that person's immediate family during the 24-hour period prior to the opening date for hunting deer with firearms in any area where there is an open season for hunting deer with firearms.

    Given that such a statute exists that disqualifies the enforcement of discharging a firearm during that period, my belief is they can't/wouldn't enforce the rule should you be armed and walking down the street in town. Out in the woods, is another matter as the purpose nof the rule is to prevent poaching.

    Having said that,

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    I also was informed that you can carry on your own land, but not anywhere else. Now you have a situation of privilege of ownership, which makes some people better than others. If this is true, evidently if you own land you are not considered a poacher.

    This system of making amendments to the constitution and passing other "feel good" laws doesn't make much sense if obsolete and outdated material is still on the books, or so interwoven into the various agencys, such as the WDNR, that intelligent people can't comprehend what is right or wrong. When you have rulings such as the Wisconsin Supreme Court on Vegas stating he can conceal carry because he has a good reason, but we cannot, how can we look for good guidance from the whole judicial system, much less our flip-flop legislature.

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    Yes. Except that Article I section 25 specifically contains the activity of hunting. That in itself attaches the two amendments. It doesn't do us any good to belabor the point. The Wisconsin firearm laws are AFU. Even the State Supreme Court can't figure them out correctly. What we need is a complete legislative re-write under the reach of the two amendments and that "ain't gonna happen" any time soon. In the meantime the best we can do is to make noise anytime we recognize one of these dumb conflicts. Letters to the media. Letters to the legislators. Letters to the AG. I've been fighting the conflict between the concealed carry statute and the vehicle carry statute for three years. I'm finally making some progress. In writing I have DNR legal office agreement, AG agreement and my State Senator agreement that there is a problem with the two statutes. Now I have to convince one of the three to do something about it. I'm afraid the same kind of long drawn out battle is ahead of us on all firearm issues. Let's face it guns scare people. That, and the fear of losing votesis why our legislators are reluctant to even discuss gun laws and it is only the legislature that can write new laws. We have to keep n"pounding" them until the do something. The current legislature is so "gun shy" they even refuse to admit that Article I section 25 exists. Even though it was voted into law by 75% of the Wisconsin voters.

    There are a number of statutes we need to be active in. The school zone law. The public building law, the on-sale liquor law, the vehicle law. The constitutionality of all of them is suspect. The Wisconsin Supreme Court ruled that the concealed weapon prohibition statute is constitutional and is without exception, including the activities contained in the RKBA amendment, but the Court also said that the State must provide a manner of carry so the activities of the amendment can be exercised. Concealed carry is not allowed and if the State doesn't allow open carry, in the locations mentioned, then the State is lying in the face of the Supreme Court and our rights to carry firearms for security and defense are infringed. We have a lot of work ahead.

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    I see Article 25 as protectingseveral enumerated manners in which firearms can be used. Hunting is one of those, but it is not involved in the other protected manners. So, if the DNR can regulate hunting due to Article 26 (and the related statute), that gives them domain over only one of the enumerations in Article 25, not over any of the others (including the good 'ol "any lawful purpose" language).

    I agree, though, Lammie - we need to change these laws. That's why I feel good about the Wisconsin Patriots - not because of the county resolutions, but because of the factthat we are educating people to try and change the social and political culture to one more friendly to our rights.

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    Lammie wrote:
    "The Wisconsin Supreme Court ruled that the concealed weapon prohibition statute is constitutional and is without exception
    I cannot agree. I believe they DID may exceptions in Hamdan, i.e., in one's own business or home. I believe they also stated that there is a possibility of other exceptions which could be identified on a case-by-case basis.
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    Maybe somebody could explain to me why deer poaching is a potentially greater problem on the day before deer hunting season as opposed to all the other days of the year? I've long been aware of the regulation, but don't understand the rationale.
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    Shotgun, you shoot the deer, dress it out and hang it, register it a few days later to make it legal. No guns in the woods, shots are easier to check out if not legal. I have no qualms about the rifle ban, I just think handguns should be allowed, given the scope of the outdoor areas, and what will eventually come to pass.

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    borrowed time wrote:
    I have no qualms about the rifle ban, I just think handguns should be allowed, given the scope of the outdoor areas, and what will eventually come to pass.
    So you don't mind if some of your gun rights are made illegal, just as others don't mind if all of them are.

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    Shotgun wrote:
    I cannot agree. I believe they DID may exceptions in Hamdan, i.e., in one's own business or home. I believe they also stated that there is a possibility of other exceptions which could be identified on a case-by-case basis.
    State v. Vegas makes an exception if you've already been assaulted multiple times or they can (with hindsight) see that you had reason. FWIW, when I scout private land I hunt on, I'm scouting whether the day before or not, and I might have some orange on as many landowners do, or not. During the season when I'm hunting thickets with my Blackhawk I'm hunting. If I come up along a public road I'm open-carrying, whether crossing it to get to another parcel or walking along it. Simple as that. It didn't take a massacre up in Hayward to tell me there are people who trespass and/or poach, so I'm armed in the woods, period.

    As Lammie points out, the list of conflicting WI statutes is a long one. Open-carry, by itself (unless a reasonable person would easily deduce that you're a minor), is not sufficient cause for an investigative stop. However, with anything that may result in a civil forfeiture or constitute a crime an investigative stop may be performed. Then (it seems to me) the State SC Henes v. Morrissey, which dilutes Hiibel, leads to 968.24 and an officer may still demand identification and certainly exercise Terry under 968.25. (And now you're into weapons/objects that would be "not ordinarily carried in public places bylaw abiding persons" beingtemporarily removed from you. (Given that most people do NOT carry firearms a court's gonna have to decide that because the law is completely mute on open-carry - to wit, define "ordinary" as carried by a "law-abiding" citizen.)

    This kind of stuff is never going to get totally fixed because of the sweeping overhaul that would be required. That's why we have courts and, when they're hesitant to smack-down a legislature, they only go a little at a time. That's why we still have 941.23 - the Hamdan court didn't go far enough.

    :?

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    I respectfully disagree, WIG19. I shudder to think of the mess the courts could make of all these laws (they've already done a bang-up job), and I would much rather see legislative change, which CAN HAPPEN. There are over 2 million gun owners in this state, and only about 2 million people voted in the November '06 elections - which included federal and state offices. I am not sure how many Wisconsinites vote in a "normal" Presidential election, but I'm sure it's not too many more. We have the power in numbers, and we have the moral high ground. We simply need to get ourpeople motivated to exercise their rights, and things will change.

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    Rick Finsta wrote:
    I respectfully disagree, WIG19. I shudder to think of the mess the courts could make of all these laws (they've already done a bang-up job), and I would much rather see legislative change, which CAN HAPPEN.

    I completely agree actually. I didn't mean at all to suggest that we should only wait for court decisions. I was just stating what is, i.e,. the role of the courts. When statutes run afoul of each other the court is forced to mitigate that, but the fact is that the question(s) put before courts are so narrowly focused that they often don't go as far as we'd like. It does take, to be an actual solution, legislation that when crafted looks at and amends everything that is impacted, either by the actual bill, or by the court decision that drives it. Legislatures are sadly very neglectful in that area, being preoccupied with partisan krappola instead of asking first "what's the right thing to do?"

    In my example before, it would take legislative action to take out much of the interpretation of 968.25 so that someone in authority couldn't say, "I don't care if you're a non-felon adult open-carrying that firearm, it's not 'ordinarily' done so I'm going to remove it from you for the time being because I'm conducting temporary questioning without arrest under 968.24." If the statute weren't mute in a certain area, the court wouldn't have to interpret. It is a wonderfully principledthing that the law is mute on open-carry;but there is a downside as well. And I will agree that education and legislationhas to fix that or we will continue to endure the travailsof behaving in a non-ordinary fashion.

    Caveat: Even my own example is unlikely to occur, courts given (generally correctly imo) to nearly always err on side of officer-safety. With the clarity in 968.25 as to removing the weapon temporarily and then returning it at conclusion of the stop, most courts are going to say that's reasonable. And courts, not legislatures, typically determine what's "reasonable" unless sufficient language is placed in a statute to remove the mud from any possible scenario.







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    Pointman wrote:
    borrowed time wrote:
    I have no qualms about the rifle ban, I just think handguns should be allowed, given the scope of the outdoor areas, and what will eventually come to pass.
    So you don't mind if some of your gun rights are made illegal, just as others don't mind if all of them are.
    perhaps I worded it wrong, long day yesterday. I think restrictions are possible, you have to have someway to rationalize the amendment to provide a way to carry.

    By the way, why do you act like I'm not on your side? The people that think all rights will come back at once and trying to force every issue to the fullest degree might have a long wait. Patience is a virtue. I'll be back in a few days if you have another question.

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    borrowed time wrote:
    Shotgun, you shoot the deer, dress it out and hang it, register it a few days later to make it legal. No guns in the woods, shots are easier to check out if not legal. I have no qualms about the rifle ban, I just think handguns should be allowed, given the scope of the outdoor areas, and what will eventually come to pass.
    Well, if you are going to register it "a few days later" then why not ban firearms two days before? I think it's idiotic to pick one day out of the year and think that's going to have an impact on deer poaching. Like many laws, it was probably the result of one or a few instances of something happening.
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    Shotgun wrote:
    Like many laws, it was probably the result of one or a few instances of something happening.
    You are soooooooooooooooo right about that. The list is too long to even have fun with.




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    Wow. Isn't reasoned discourse great? I love having conversations that are logical, civilized, and well-thought-out.

    Thanks for clarifying your position, WIG19, it appears we agree on pretty much everything there!

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    10-4.I'm sure many of us would've LOVED to be able to frame the actual question going before the Court in Heller...



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    Having talked with DNR officials at length on this, this is my understanding of what THEIR take on the legality of this is...

    In the city or residential area, carrying for security will not be of any concern to them and should not be of any concern to any LEO as in regards to NR 10.09(2).

    Now if they actually catch you sitting in the stand, then they will, in all likely hood, disarm, detain, citation/arrest.

    Walking the property, checking for other trespasser/poachers, unclear. The implication is that this falls to the individual warden/LEO as to how they choose to proceed.

    In the end, I think the outcome would be much like Para's issue. You will be detained, disarmed, and sited/arrested but formal charges may/not be coming and of course we all get our day in court.

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    This subject is very frustrating. The DNR office in Green Bay informs me that carrying a weapon on your own land on the day in question is ok, but they tell you that this practice is left up to the individual LEO/dnr officer to decide the legal implication. I didn't think regular law enforcement were involved in matters of dnr enforcement.

    This sounds more like the situation of open carry, the powers that be are just asserting authority in the hope that wording statements carefully would discourage people from exercising their rights.

    If everyone that reads this thread calls the dnr and requests clarity on the issue, maybe an official exclamation will be forthcoming. According to the Supreme Court of the U.S. we have the individual right to carry for protection. I would suspect that the dnr would be forced to provide the means that this would be accomplished. Just think for a moment, we get one day back with no strings attached, and keep moving forward.

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    borrowed time wrote:
    I didn't think regular law enforcement were involved in matters of dnr enforcement.

    If everyone that reads this thread calls the dnr and requests clarity on the issue, maybe an official exclamation will be forthcoming. According to the Supreme Court of the U.S. we have the individual right to carry for protection.
    Regular LE (county deputies) are often the first ones responding to a trespassing or rural man-with-gun complaint.

    I personally have zero interest in having the DNR actually pickup that question for "clarity."The DNR needs to be taking its direction from the law, and then working out differences with those writing the statute or making a declaratory judgement. I DO NOT want the DNR to promulgate a position on whether I can walk my landowner's property/curtilage (to which I'm trusted) and have the DNR assess the legality of my firearm or the manner of its carry. That needs to be in statute and, frankly, if I were a Conservation Warden I'd want it that way too.

    Also, if you're referring to the recent Supreme Court decision in DC v. Heller, that's not what the decision said.


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    WIG19 is correct, I'd be careful with assertations that Heller did anything but establish the ".38 in your nightstand" right under the 2nd Amendment, but we can bypass that entirely here in WI because of the State Supreme Court rulings backing up your statement: we have the right to carry for protection as per Hamdan.

    edit: When I say "establish," I mean as legal precedent. Obviouslyno court is ina position to "establish" rights...

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