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Thread: Hamdan Case Law.

  1. #1
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    I am a big proponent of OC as you all know. I OC regularly and have been detained before. My question is about concealed carry. Namely - what did the Hamdan case say about concealed carry? If I understand correctly you can conceal on your property or business? What if I am renting property but it is my full time residence?



    Thanks.

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    If you are seeking a qualified legal opinion then your adviser should be bound by legal canons. Otherwise, the Hamdan decision text has been post/linked here and you should draw your own conclusions.

    I own my property free and clear and CCW at will.

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    I understand Doug. I am not looking for a formal legal opinion. Just what others that have read the whole decision have surmised. I was just curious about CCW on my rented property although I have no reason to - I can just open carry!

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    GJD:

    I also am not a lawyer so don't take what I say as legal advice.

    The Hamdan opinion is very confused as far as it pertains to concealed carry. For your interest the following paragraphs are important. 66. 68. 73 and 86. When you read the case opinion realize that the court opinion ends at paragraph 89. Paragraphs beyond that are opinion of individual justices that either concur or dissent and havelittle case law significance.

    The reason I say the Hamdan decision is confused is largely found in Paragraph 66. In that paragraph the SSC says We infer that the inclusion in the amendment of the right to keep and bear arms for security was intended " to include a personal right to bear arms to protect one's person, family or property against unlawful injury----". However, the SSC goes on toimply that concealed carry for security isonly unconstitutionalwhen applied to security of one's business or property. The SSC seems to say that concealed carry is unconstitutional when done to secure business or property but constitutional when applied to personal and family security. Protection for personaland family security would seem to require open carry. How can the word "security" as contained in Article I section 25 have such a convoluted meaning in the eyes of the SSC?

    In my opinion the only thing of value we gained from Hamdan is the affirmation of the SSC and the Department of Justice that open carry is constitutional. The issue of concealed carry was only furthur muddled by the SSC's rulingin Hamdan.

    Read theSSC opinion on Hamdan, especially the paragraphs I listed and then draw your own conclusion.

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    The Hamdam opinion makes reference to one's "home" or "residence." One's "residence" is, obviously, the place where one resides. So you don't HAVE to be the property OWNER. You have the same rights in your apartment as you'd have in a private home that you owned.
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    Shotgun wrote:
    The Hamdam opinion makes reference to one's "home" or "residence." One's "residence" is, obviously, the place where one resides. So you don't HAVE to be the property OWNER. You have the same rights in your apartment as you'd have in a private home that you owned.
    I will draw your attention to Shotgun's post, CC would apply ONLY INSIDE your apartment, not the hallway, building, or grounds.

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    I would invite you to read the annotated version of the WI Constitution here:

    http://www.legis.state.wi.us/statutes/wisconst.pdf

    See Article I, Section 25 (of course) on page 42.
    Ecclesiastes 10:2 - "A wise man's heart inclines him to the right, but the fool's heart to the left."

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    Here is the selected text Pvtshultz mentioned. Sorry about the font, don't know how to turn it back to normal lol.

    Ben


    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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    Thanks for the information. The reason that I am asking is that I rent a house owned by some family members that own multiple homes. They are very much against open carry but totally for my having a firearm to protect myself and my family (go figure). They wanted to know what the current status of CCW is on rented property. Since it is a house with a garage and yard I would assume that I could conceal on the whole property - different than concealing in an apartment complex.

    They certainly are not going to prevent me from carrying as they are pro-2A but have nicely asked me to cover my revolver up while doing yard work etc.. I was considering it as a courtesy to them.I still continue to OC when I go out.

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    GJD I have a similar situation. Since my dad who is also pro 2A saw me on T.V forthe fewmoments I was on. He became concerned with my gun advocacy and wont let me open carry on his property (his house)where I live! It would be interesting if we could come up with some sort of conclusion about this.

    Ben

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    BJA wrote:
    GJD I have a similar situation. Since my dad who is also pro 2A saw me on T.V forthe fewmoments I was on. He became concerned with my gun advocacy and wont let me open carry on his property (his house)where I live! It would be interesting if we could come up with some sort of conclusion about this.

    Ben
    I am confused. How can someone who does not believe you have a right to bear arms be considered "pro 2A"

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    This is more out of consideration from them and not because the owners do not want me to carry at all. They just dont want a panic. Yeah yeah, I know irrational fear, etc.

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