Local ordinance vs. state law

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Doug:

Article I section 26 of the Wisconsin Constitution gives us the constitutional right to hunt, fish and trap. Unfortunately the DNR was sucessfull in lobbying to have the conditional phrase added "Subject to reasonable regulation".

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Yes. Thank you. I rank DNR equal with NRA, GOP and LAB. Thank goodness my DNR 'constable' is a likable good ol' boy.

Right to fish, hunt, trap, and take game. SECTION 26.
[As created April 2003] The people have the right to fish, hunt,
trap, and take game subject only to reasonable restrictions as
prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003]

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Doug Huffman wrote:

I don't recall anyone addressing the differentiation between statute and regulation but they are not the same.

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My understanding: They are not the same. But state agencies are authorized by statute to make administrative rules, which have the same force as law. But the rules should not have anything that is contrary to statute in them, and if they do, they can be challenged. Administrative rules are generally adopted after public hearings and must be legislatively approved.

Once adopted, rules are presumed to be legal and enforceable unless a court rules otherwise.

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At least our RKBA doesn't have this "subject to reasonable restrictions" language. In some states that language exists.

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Doug Huffman wrote:

Yes. Thank you. I rank DNR equal with NRA, GOP and LAB. Thank goodness my DNR 'constable' is a likable good ol' boy.

Right to fish, hunt, trap, and take game. SECTION 26.
[As created April 2003] The people have the right to fish, hunt,
trap, and take game subject only to reasonable restrictions as
prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003]

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Let's compare hunting to voting. Supposedly in WI they are both rights.

Can you show up and vote for president at the polls tomorrow? No. You have a right but a window of time in which to exercise it. The time-window restriction won't be found in any laws that I know of. Note that there is no license to vote, since that would make voting a privilege.

This theoretically means that your right to hunt could have a time window associated with it, but that you don't need to get a license to go hunt or fish. But this is not the case. I took the DNR test on Thursday and indeed in that test is a question on rights vs. privileges regarding hunting, and the correct answer is that hunting is a privilege. This is of course because you must get a hunting license to legally hunt. But reading the state laws you will find out differently. IMO, the only reasonable restriction specified by the state law is a window of time, and perhaps the method of hunting such as bow/gun/muzzleloader, etc....but NOT a hunting license.

I wonder if the DNR thinks they are truly enforcing the state laws.

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The DNR only enforces their laws.

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In my previous post the reason I made the comment I did regarding the DNR is that during my many correspondence with the top dog legal person in the DNR concerning the conflict of statutes 941.23 and 167.31(2)(b), 941.23 being the Concealed weapon prohibition and 167.31(2)(b) being the vehicle carry statute, he finally conceded that on single passenger vehicles the statutes do conflict. They conflict because there is no way that a weapon can be carried out of reach thereby no way to avoid the conditions the Supreme Court says defines concealment. His final comment was that if the weapon is unloaded and encased as required by 167.31 the DNR would not issue a citation for violation of 941.23. He went on to add that he couldn't speak for local law enforcement and they may view the situation differently. I do have that in writing. It is absurd that State statutes should be such that law enforcement can pick and choose the statutes they wish to enforce and the public be damned. It is also absurd that the DNR thinks rights such as those given by Article I section 26 can be turned into a privilege simply by adding the phrase "subject to reasonable regulation:.

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I wonder how a city can prohibit the discharge of a firearm? Does this not run afoul of the heller decision? You are definitly infringing on the people's right to "bear" arms.

That is like stating "You can buy a car, but cannot drive it."

I bring this up because many municipalities are annexing land from towns adjacent to their current territory just for tax revenue or to grab tax base that has large areas of farm/rural area.

Take Madison for example. They entered into an agreement with the town of Burke to annexa large portion of the Cherokee Marsh and surrounding lands. This attachment will not happen for some time, but when it does this land will fall into the city of Madison Boundries. The town of Burke currently does not have any restrictions on the discharge of weapons within it's boundries. I find it amazing that just from a simple municipal boundry change the people located in the rural parts of Madison will all of a sudden have their ability to discharge weapons instantly taken away.

A right that you cannot excersise is no right at all. Should this come to pass I will be one supporting a court challange to this regulation. I am not sure how the courts in Wisconsin work. Would you bring an action in Federal court for violation of US constitutional rights or do you have to start in local courts and work your way up?

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The Heller decision was very narrow and addressed precisely three subsection/paragraphs of DC gun ban.

D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) (2001) and §§22–4504(a), 22–4506.

The bulk of the DC v. Heller text is mere discussion and is not law of any sort.

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Regulation of the discharge of firearms is allowed by Wisconsin statute

66.0409 Local regulation of firearms. (1) In this section:
(a) “Firearm” has the meaning given in s. 167.31 (1) (c).
(b) “Political subdivision” means a city, village, town or
county.
(c) “Sport shooting range” means an area designed and operated
for the practice of weapons used in hunting, skeet shooting
and similar sport shooting.
(2) Except as provided in subs. (3) and (4), no political subdivision
may enact an ordinance or adopt a resolution that regulates
the sale, purchase, purchase delay, transfer, ownership, use, keeping,
possession, bearing, transportation, licensing, permitting,
registration or taxation of any firearm or part of a firearm, including
ammunition and reloader components, unless the ordinance or
resolution is the same as or similar to, and no more stringent than,
a state statute.
(3) (a) Nothing in this section prohibits a county from imposing
a sales tax or use tax under subch. V of ch. 77 on any firearm
or part of a firearm, including ammunition and reloader components,
sold in the county.
(b) Nothing in this section prohibits a city, village or town that
is authorized to exercise village powers under s. 60.22 (3) from
enacting an ordinance or adopting a resolution that restricts the
discharge of a firearm.
(4) (a) Nothing in this section prohibits a political subdivision
from continuing to enforce an ordinance or resolution that is in
effect on November 18, 1995, and that regulates the sale, purchase,
transfer, ownership, use, keeping, possession, bearing,
transportation, licensing, permitting, registration or taxation of
any firearm or part of a firearm, including ammunition and
reloader components, if the ordinance or resolution is the same as
or similar to, and no more stringent than, a state statute.
(am) Nothing in this section prohibits a political subdivision
from continuing to enforce until November 30, 1998, an ordinance
or resolution that is in effect on November 18, 1995, and
that requires a waiting period of not more than 7 days for the purchase
of a handgun.
(b) If a political subdivision has in effect on November 17,
1995, an ordinance or resolution that regulates the sale, purchase,
transfer, ownership, use, keeping, possession, bearing, transportation,
licensing, permitting, registration or taxation of any firearm
or part of a firearm, including ammunition and reloader components,
and the ordinance or resolution is not the same as or similar
to a state statute, the ordinance or resolution shall have no legal
effect and the political subdivision may not enforce the ordinance
or resolution on or after November 18, 1995.
(c) Nothing in this section prohibits a political subdivision
from enacting and enforcing a zoning ordinance that regulates the
new construction of a sport shooting range or when the expansion
of an existing sport shooting range would impact public health and
safety.
(5) A county ordinance that is enacted or a county resolution
that is adopted by a county under sub. (2) or a county ordinance
or resolution that remains in effect under sub. (4) (a) or (am)
applies only in those towns in the county that have not enacted an
ordinance or adopted a resolution under sub. (2) or that continue
to enforce an ordinance or resolution under sub. (4) (a) or (am),
except that this subsection does not apply to a sales or use tax that
is imposed under subch. V of ch. 77.
History: 1995 a. 72; 1999 a. 150 s. 260; Stats. 1999 s. 66.0409.
This section does not prohibit municipalities from enacting and enforcing zoning
ordinances that apply to sport shooting ranges. Town of Avon v. Oliver, 2002 WI App
97, 253 Wis. 2d 647, 644 N.W.2d 260, 01−1851.

============================================================
An excerpt of this chapter was posted published on the first page of this thread, among the first few postings. You need to read and understand the wisdom of experience.

In the Heller discussion text you will find that various 'reasonable regulations' of RKABA are admitted. If you're going to use Heller then at least read it with understanding or read a good critical commentary. Heller was a mixed blessing for gun rights.

You might study up on 'incorporation' as part of your brief of federal/state constitutional law. The Wikipedia is a good place to start.

Believe nothing you read or hear without verifying it yourself unless it fits your pre-existing worldview.

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

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Yes, Heller was a long long way from saying that you have the right to shoot your gun anywhere you want.

I don't believe Madison's regulation on discharge of firearms prohibits ALL shooting. I believe it allows discharge in areas that are zoned "agricultural" and at approved ranges, but I am relying on my memory.

Would you seriously want no regulation of the discharge of firearms? So I can target shoot in my backyard all day, neighbors be damned?

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The last time I read the ordinance it stated that discharge of a firearm within city limits was prohibited.

That is an awful heavy handed law. I would prefer that this law and similar ones should be stricken statewide.

The current state statute states that discharging a firearm within 100 yards of buildings occupied by people is not allowed without permission from landowners. I think this covers many metro areas much better than an outright ban on weapons discharge. The outright bans on discharge are very anti-gun.

This is a loophole to allow municipalities to ban the use of weapons.

I used to live in Pardeeville, WI and we had neighbors that lived on the endge of town and would shoot handguns for several hours on the weekends. No one thought anything of it.

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The current state statute states that discharging a firearm within 100 yards of buildings occupied by people is not allowed without permission from landowners.

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[font="Verdana,Arial,Helvetica"]http://opencarry.mywowbb.com/forum1/1.html
[/font]

7) if you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available, is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

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Ok, well here is what the Madison ordinance says.

25.06 DISCHARGE OF FIREARMS.
(1) No person shall fire or discharge a firearm of any description, or any pneumatic or spring-loaded pellet gun, without written permission of the Mayor or Chief of Police, such permission shall limit the time of such firing and shall be subject to revocation by the Mayor, the Chief of Police or Common Council. The above prohibition as to the discharge of firearms shall not apply:
(a) during the regular hunting season to the hunting of ducks, pheasants, rabbits or other game with scatter gun loads on private lands zoned “Agricultural” under City of Madison zoning ordinances provided that such hunting is carried on by the owners of the property or their guests and, provided that, except for duck hunting, such lands are not less than twenty (20) acres in size. Such guests shall be required to carry a card with the owner’s signature thereon except when accompanied by the owner of the land.
(b) in conservation parks which shall be governed by Sec. 8.40, M.G.O. (Am. by Ord. 12,372, 5-6-99)
(2) No person shall hunt in or discharge a firearm of any description in or into or over the area known as Dunn’s Marsh, the legal description of which is on file in the office of the City Engineer and which is adopted and incorporated by reference herein, any provision of these ordinances notwithstanding. The boundaries of the area shall be posted with signs at least eleven (11) inches square and spaced not more than five hundred (500) feet apart; such signs shall carry an appropriate notice including the words “City of Madison, Owner” and shall recite the section number of this ordinance. Any person violating the provisions of this section shall forfeit not more than five hundred dollars ($500). (Am. by Ord. 13,760, Adopted 12-14-04)


By the way, the that state prohibition against shooting within 100 yards applies only to when you are on another person's property, not your own.

Oh, and did your neighbors on the "edge of Pardeeville" live inside or outside of the village limits? Here's Pardeeville's ordinance, it's not significantly differing from Madison's:

SEC. 9-2-1 REGULATION OF FIREARMS.
(a) No person, except a sheriff, police officer or other law enforcement officer, shall fire or discharge any firearm, rifle, spring gun, air gun or pneumatic pellet gun of any description, or tipped arrow, except as provided in 9-2-3, within the Village or have any firearm, compound or strung bow, rifle, spring gun, air gun or pneumatic pellet gun in his possession or under his control unless it is unloaded and enclosed or encased within a carrying case or other suitable container.
(b) No person shall in the territory adjacent to the Village discharge any firearm in such manner that the discharge shall enter or fall within the Village.
(c) This section shall not prevent the maintenance and use of duly supervised rifle or pistol ranges or shooting galleries approved by the Chief of Police and Village Board where proper safety precautions are taken.


I doubt that you'll find many, if any, villages or cities in Wisconsin that do not have similar laws.

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941.20(d) While on the lands of another discharges a firearm within 100 yards of any building devoted to human occupancy situated on and attached to the lands of another without the express permission of the owner or occupant of the building. "Building" as used in this paragraph does not include any tent, bus, truck, vehicle or similar portable unit.

Good reminder Doug

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Thanks. It wasn't directed at you.

Since you seem to have access to an interesting data base, can you find Door Co. Ordinances?

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Doug Huffman wrote:

Thanks.  It wasn't directed at you.

Since you seem to have access to an interesting data base, can you find Door Co. Ordinances?

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I've yet to find a website that offers a complete copy of Door County's. I'll keep working on it! I'm assuming that you're interested in whatever they have related to firearms.

A good place to search for local ordinances is on here:

http://wsll.state.wi.us/ordinances.html

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Much broader than that.

I have made personal inquiries to County Officials at a number of levels. It is clear to me that Door Co. ordinances are not on-line or publicly available particularly. Nor is the County forthcoming of this fact.

I have a copy of the Zoning Ordinance ~200 pages in my position on our Zoning and Planning Board. The only ordinances related to law enforcement was a dog eared copy carried in the patrol car.

Thanks for the WSLL site, I had stumbled across it but didn't realize its significance.

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So shooting my handguns, my kids .22 rifles, hunting deer (which is all we hunt here) would all be illegal if we were in the city of Madison.

I am not trying to say that the city does not have the power to do it, what I am saying is they should NOT have the power to enact such laws. They are arbitrary and usually emotionally based and not public safety based.

There should be standard laws statewide that eliminate weird local laws.

In Pardeeville many people would target practice within the village limits. The local sheriff must have just igorned it. Many villages are surrounded by towns with different laws even though houses may be next to one another.

I am just distressed at this restriction on freedoms that have no public safety basis and are solely based on municipal boundaries.

Those who would trade freedom for safety deserve neither.

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Doug Huffman wrote:

Much broader than that. 

I have made personal inquiries to County Officials at a number of levels.  It is clear to me that Door Co. ordinances are not on-line or publicly available particularly.  Nor is the County forthcoming of this fact.

I have a copy of the Zoning Ordinance ~200 pages in my position on our Zoning and Planning Board.  The only ordinances related to law enforcement was a dog eared copy carried in the patrol car.

Thanks for the WSLL site, I had stumbled across it but didn't realize its significance.

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Secret laws? I'd make an open records request. I'll bet they send them to you then!