Wisconsin's 20 largest cities

Handgun shop, subject to the following conditions:
a. Such shop shall be located in a building of Type 5 construction as
defined in ILHR 51.03(5), Wisconsin Administrative Code.

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Doug Huffman wrote:

IANAL Charge and conviction is the only way to gain standing for appeal in higher court to make its stare decisis/case law effective on the lower municipal court.

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Stare decisis is probably not applicable since the black letter law is clear.

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Right to keep and bear arms. SECTION 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998] The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01−0350. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056. A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant’s interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state’s interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01−0056. Under both Hamdan and Cole there are 2 places in which a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen’s home or in his or her privately−owned business. It logically and necessarily follows that the individual’s interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations. An individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04−2989. The most natural reading of “keep arms” in the 2nd Amendment is to have weapons. The natural meaning of “bear arms” is to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Putting all textual elements together, the 2nd amendment guarantees the individual right to possess and carry weapons in case of confrontation. However, like most rights, the right secured by the 2nd Amendment is not unlimited. District of Columbia v. Heller, 554 U. S. ___, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008)

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Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

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I conducted an informal survey of the local ordinances of the 20 largest cities in Wisconsin to see how many continue to have ordinances on their books impacting open carry which are clearly preempted by state statute (i.e., invalid and unenforceable.)

Note: I looked primarily for ordinances that would involve open carry per se. Be aware that some municipalities have other ordinances that are also preempted under the state's firearms preemption statute: Madison is a perfect example because it has preempted ordinances regarding "barbed bullets" "short barrel handguns" etc.

I have cited the particular chapter, title or section of the preempted local ordinance for reference. Here is what I found for the largest 20 cities in Wisconsin, by order of population:

1) Milwaukee (596974): 105.34 (1)(b)

2) Madison (208054): 25.01(7)

3) Green Bay (102313): 27.604(3)(a)

4) Kenosha (90352): Nothing prohibiting open carry. [Note: City ordinance does prohibit carrying a concealed "pea shooter!"] :quirky

5) Racine (81855): 66-58

6) Appleton (70087): Nothing prohibiting open carry.

7) Waukesha (64825): Nothing prohibiting open carry.

8) Oshkosh (62916): 17-3(A) [Note: Somewhat ambiguous wording of this ordinance. One might plausibly argue it only prohibits concealed weapons, but it appears to prohibit both open and concealed by my interpretation.]

9) Eau Claire (61704): 9.32.040(F) [Note: requires firearms to be unloaded and encased.]

10) West Allis (61254): Nothing prohibiting open carry.

11) Janesville (59498): Nothing prohibiting open carry.

12) La Crosse (51818): 7.01(B)

13) Sheboygan (50792): 70-252 and 70-253

14) Wauwatosa (47271): Nothing prohibiting open carry.

15) Fond du Lac (42203): Nothing prohibiting open carry.

16) Brookfield (38649): 9.28.010 [Note: requires firearms to be unloaded and knocked down, or encased.]

17) Wausau (38426): 9.08.010(a)

18) New Berlin (38220): Nothing prohibiting open carry.

19) Beloit (35775): Nothing prohibiting open carry.

20) Greenfield (35476): 10.01


So, it appears that 11 of the 20 largest cities fail to be in compliance with state law. If I have missed anything, please submit a correction!

I am perhaps a little surprised that 9 cities are in compliance. I expected maybe 3 or 4.

Edited 10/27 to include populations as of last official census.

The next 20 largest cities (added 10/27/08)

21) Manitowoc (34053): Nothing prohibiting open carry.

22) Menomonee Falls (32647): Section 62-87

23) Franklin (29494): Nothing prohibiting open carry.

24) Oak Creek (28456): 11.21(b) [Note: Although this section of the ordinance is entitled "concealed weapons in public establishments" it appears to prohibit all firearms that are "readily accessible" in "a business establishment open to the public."

25) West Bend (28152): Nothing prohibiting open carry.

26) Superior (27368): 86-74(b)

27) Stevens Point (24551): Nothing prohibiting open carry.

28) Neenah (24507): Nothing prohibiting open carry.

29) Mequon (21823): 46-107

30) Watertown (21598): 11.32

31) Muskego (21598): 9.01(1)(a)

32) South Milwaukee (21256): Nothing prohibiting open carry. :celebrate

33) De Pere (20559): 142.2

34) Fitchburg (20501): Nothing prohibiting open carry. [Note: City ordinances are not available online. I called the city clerk and was referred to the police department, which tried to refer me back to the clerk's office :? but was told by PD that there is no city ordinance regarding the bearing of firearms and that one "just needs to follow state law."

35) Sun Prairie (20369): 9.32.010

36) Marshfield (18800): Nothing prohibiting open carry.

37) Wisconsin Rapids (18435): 25.12

38) Cudahy (18429): 9.02(2)(a)

39) Germantown (18260): Nothing prohibiting open carry.

40) Ashwaubenon (17634): 9.02(1)

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