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Thread: Overturning Wisconsins School Zone Restrictions.

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    Why not apply the same means as Heller Vs. DC to try to legally overturn the Wisconsin “Gun-free School zone” law? In this way no one would need to be in a legal quandary. The Wisconsin State Statute reads:
    948.605 Gun−free school zones. (1) DEFINITIONS. In this
    section:
    (a) “Encased” has the meaning given in s. 167.31 (1) (b).
    (ac) “Firearm” does not include any beebee or pellet−firing
    gun that expels a projectile through the force of air pressure or any
    starter pistol.
    (am) “Motor vehicle” has the meaning given in s. 340.01 (35).
    (b) “School” has the meaning given in s. 948.61 (1) (b).
    (c) “School zone” means any of the following:
    1. In or on the grounds of a school.
    2. Within 1,000 feet from the grounds of a school.
    (2) POSSESSION OF FIREARM IN SCHOOL ZONE. (a) Any individual
    who knowingly possesses a firearm at a place that the individual
    knows, or has reasonable cause to believe, is a school zone is
    guilty of a Class I felony.
    (b) Paragraph (a) does not apply to the possession of a firearm:
    1. On private property not part of school grounds;
    2. If the individual possessing the firearm is licensed to do so
    by a political subdivision of the state or bureau of alcohol, tobacco[/b]
    and firearms in which political subdivision the school zone is[/b]
    located, and the law of the political subdivision requires that,[/b]
    before an individual may obtain such a license, the law enforcement[/b]
    authorities of the political subdivision must verify that the[/b]
    individual is qualified under law to receive the license;[/b]
    3. That is not loaded and is:
    a. Encased; or
    b. In a locked firearms rack that is on a motor vehicle;
    4. By an individual for use in a program approved by a school
    in the school zone;
    5. By an individual in accordance with a contract entered into
    between a school in the school zone and the individual or an
    employer of the individual;
    6. By a law enforcement officer or state−certified commission
    warden acting in his or her official capacity; or
    7. That is unloaded and is possessed by an individual while
    traversing school grounds for the purpose of gaining access to
    public or private lands open to hunting, if the entry on school
    grounds is authorized by school authorities.
    8. By a person who is legally hunting in a school forest if the
    school board has decided that hunting may be allowed in the
    school forest under s. 120.13 (38).
    [/b]


    To me, a legal layperson, it seems that someone should be able to request a license, subsequently be denied, and bring it up on constitutional grounds just like the Heller case. Of course we would need someone who lives in a place like Milwaukee. A place with so many overlapping school zones that it severely restricts his or her right to bear arms.

    Maybe I’m way off base on this? Thoughts?
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    I don't think it's off base. I suggested the same thing on here some time ago and even began asking at the city clerk's office about getting such a license. As I reported at that time, they were very nice and honestly baffled by my request. Even though there is a provision on the law for such a license, I doubt there is anyplace in the entire state that issues such a license. Hence, there is no practical way to exercise the right to bear arms within the school zone, therefore it is unconstitutional under state law. Somewhere on here there is the thread discussing this.
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    Ok,Stupid question....But why would you want to be Licensed to exercise a Right ?

    Its my understanding that once your "licensed" it becomes a priviledge.So why would you want to include yourself to something that can be removed/revoked on a whim.

    Pat





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    308Panther wrote:
    Ok,Stupid question....But why would you want to be Licensed to exercise a Right ?

    Its my understanding that once your "licensed" it becomes a priviledge.So why would you want to include yourself to something that can be removed/revoked on a whim.

    Pat



    I don't think one ought to be required to have a license to exercise this right. One might want one, if they issued them, to not have to worry about the stupid school zone law however. But the point is, they don't issue them.

    Even your rights can be revoked.
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    308Panther wrote:
    Ok,Stupid question....But why would you want to be Licensed to exercise a Right ?

    Its my understanding that once your "licensed" it becomes a priviledge.So why would you want to include yourself to something that can be removed/revoked on a whim.

    Pat



    I wouldn't want to be licensed, but applying for one and not getting one is the first step in taking this to court if we follow the Heller model.

    Basically, to challenge something on constitutional grounds you must have suffered specific injury. Usually this is you being charged with a crime; however, you CANdo it without being charged.

    Let's say we get an upstanding citizen from Milwaukee who lives surrounded by school zones. (shouldn't be hard to find!) He's effectively unable to carry for defense which is a lawful purpose and specifically mentioned by the state constitution. There is a way for relief (the license). That aperson canreceive alicense is the only possibleway that the school zone law would hold up as constitutional.

    So, the person applies for a license. We all know they won't give him one. Now, because relief was denied, his constitutional rights have also been denied. He has suffered specific injury andshould have grounds for a challenge on constitutional grounds because his rights are being trumped by state law.

    Shotgun, can you link to the other thread? I'd like to keep this discussion going. I really think it should be easy to get someone to do this if lawyers think it will work. There are no legal risks to the person and we should be able to find an organization to fund it like the libertarian organization that worked on Heller.
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    Last August I went to the city Clerk and asked her the same thing. This is what I got back from Sheboygan. I did have this posted then as shotgun said were talking about this a while ago. I have yet to look into what the ATF would say may have to do that. But I doubt they would issue one either.

    The statute allows a person to possess a firearm in a school zone in Sheboygan if.
    1. They hold a license issued by either:
    a. the City of Sheboygan, or
    b. the ATF;

    AND,

    2. We require by ordinance, before issuing a license, that the individual's qualifications to receive such a license be verified.

    Unless I am missing something, Sheboygan neither issues such license nor has such a verification requirement.

    I suspect this may relate to municipalities that may issue some sort of gun license to retired officers and/or peace officers who are not law enforcement officers (those terms overlap, but aren't exactly the same.) We do neither of these. Thus, my read is that this particular exception is not possible to meet in Sheboygan.

    Thus, if Mr. Ballogh wishes to brandish a weapon in a school zone in Sheboygan he'll have to find some other exception to the law. (For example, sub(4) is the section that allows people to use the gun range at Urban Middle School.)

    Chuck Adams
    Assistant City Attorney



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    GRB wrote:
    Last August I went to the city Clerk and asked her the same thing. This is what I got back from Sheboygan. I did have this posted then as shotgun said were talking about this a while ago. I have yet to look into what the ATF would say may have to do that. But I doubt they would issue one either.
    I don't think the ATF can issue a license in light of U.S. Vs. Lopez. Since they are unable to enforce the federal gun free school zone laws that these state laws are modeled after I believe issuing a license would be out of their jursidiction under the commerce clause as well.
    The statute allows a person to possess a firearm in a school zone in Sheboygan if.
    1. They hold a license issued by either:
    a. the City of Sheboygan, or
    b. the ATF;

    AND,

    2. We require by ordinance, before issuing a license, that the individual's qualifications to receive such a license be verified.

    Unless I am missing something, Sheboygan neither issues such license nor has such a verification requirement.
    Therefore, since the license isn't made availlable we have specific injury. Right?

    I suspect this may relate to municipalities that may issue some sort of gun license to retired officers and/or peace officers who are not law enforcement officers (those terms overlap, but aren't exactly the same.) We do neither of these. Thus, my read is that this particular exception is not possible to meet in Sheboygan.

    Thus, if Mr. Ballogh wishes to brandish (ERGH!)a weapon in a school zone in Sheboygan he'll have to find some other exception to the law. (For example, sub(4) is the section that allows people to use the gun range at Urban Middle School.)

    Chuck Adams
    Assistant City Attorney

    The state law states: and the law of the political subdivision requires that,[/b]
    before an individual may obtain such a license, the law enforcement[/b]
    authorities of the political subdivision must verify that the[/b]
    individual is qualified under law to receive the license;


    IMO, this is the state giving an "out" so to speak. Making it more constitutional on the state levelby leaving it up to the local authorities to violate our rights. Qualified under law could simply mean that the person is otherwise able to own a firearm.

    In any case, if Sheboyban or another municipality didn't have provisions for a permit I think you would have specific injury.[/b]

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    I would also think that being able to own a firearm would mean that I am qualified under the law. I was looking around on the ATF website and found this statement under FAQ
    (A2) Does the Federal Government issue a license or permit to carry a concealed weapon? [Back]

    No. Neither ATF nor any other Federal agency issues such a permit or license. Carrying permits may be issued by a State or local government.

    I know that is about concealed carry but that is all I could find they had nothing about open carry permit.

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    I suspect 948.605(2)(b)(2) is unenforcible under the preemption statute 66.0409. Political subdivisions cannot require licensing unless the State requires licensing. As far as I know there is no provision under state statutes that addresses a state issued license to carry a firearm in a school zone. ss948.605only addresses licensing by a political subdivision or the ATF. There is no mention of a state issued license.

    In my opinion the gross problem with 948.605 is that Wisconsin essentially just "cut and pasted" the federal regulations and gave it a Wisconsin statute number. No significant effort was made to modify the federal law so that it better fit with Wisconsin statutes.

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    Lammie wrote:
    I suspect 948.605(2)(b)(2) is unenforcible under the preemption statute 66.0409. Political subdivisions cannot require licensing unless the State requires licensing.
    I'm not sure about that since948.605(2)(b)(2) IS state law. 66.0409 should have no direct affect on it. It's the state that is allowing localities to issue a license. That's the same way the feds were able totry to make it stand up to constitutional scrutinyon2A grounds. It didn'tban carry, just restricted it (so they say).In U.S. Vs. Lopez it was not found unconstitutional on2A grounds but rather that the fedsdid not have the power under the commerce clause to enforce it.

    Now, maybe 66.0409 indirectly affects it. For example, if the localities will not issue a license, they could be seen in violation of 66.0409 because they are being more strict. In any case I don't see why you wouldn't have specific injury for a constitutional defense.
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    Lammie wrote:
    I suspect 948.605(2)(b)(2) is unenforcible under the preemption statute 66.0409. Political subdivisions cannot require licensing unless the State requires licensing. As far as I know there is no provision under state statutes that addresses a state issued license to carry a firearm in a school zone. ss948.605only addresses licensing by a political subdivision or the ATF. There is no mention of a state issued license.

    In my opinion the gross problem with 948.605 is that Wisconsin essentially just "cut and pasted" the federal regulations and gave it a Wisconsin statute number. No significant effort was made to modify the federal law so that it better fit with Wisconsin statutes.
    Which is good for our cause right? The state made it law, but never made created a mechanism for people to lawfully exercise it. Could lead to an unconstitutional challenge if you can get a good test case.

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    trailblazer2003 wrote:
    Which is good for our cause right? The state made it law, but never made created a mechanism for people to lawfully exercise it. Could lead to an unconstitutional challenge if you can get a good test case.
    And a test case should be easy to get since the person who volunteerswill be in no legal Jeopardy.
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    66.0409 reads in part --- unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. There is no state statute that requires or provides for licensing in order to carry a firearm in a school zone.

    But it matters not that we quibble about what is and what is not. There is no question that the gun free school zone statute is severly flawed and has to be repealed or considerably modified. There are so many "what ifs" that even the federal prosecutors appear confused.

    On the web site gunlaws.com there is a map of school zones in downtown Cleveland and downtown Phoenix. It is virtually impossible to step outside your door anywhere in the city without being in violation of the 1000 foot rule.

    Also consider this. Does the definition of "private schools" also include "home schools"? If it does, and I suspect some judges may say it does, then do any members of this forum know which homesconduct home schooling? There are many "home" schools in Wisconsin. Just another reason 948.605 must go.

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    +1 Lammie.

    I think contacting our legislators and local DAs about this is the best thing we can do right now, but I don't see anything happening until after the budget battle is over. At the current rate, I think our representatives are going to have trouble staying in touch after the repo guys come to take all the stuff from their offices, and haul away all our gov't. buildings to auction for repayment of debts to bondholders...

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    FWIW I agree Lammie. The way the preemption statute works with the school zone law is really irrelavant. What's relavant is that they won't give you a permit if you apply for one.

    Rick Finsta wrote:
    +1 Lammie.

    I think contacting our legislators and local DAs about this is the best thing we can do right now, but I don't see anything happening until after the budget battle is over....
    Yeah, and it will get vetoed by our wonderful governer.

    It's always good to investigate the "ifs". It would be nice if someone could call a gun rights attorney and see what their take is on it. Cases are much nicer when no one is criminally liablebesides the Government.
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    Brass Magnet wrote:
    Shotgun, can you link to the other thread? I'd like to keep this discussion going. I really think it should be easy to get someone to do this if lawyers think it will work. There are no legal risks to the person and we should be able to find an organization to fund it like the libertarian organization that worked on Heller.
    I think most of the discussion is contained in this thread:

    http://opencarry.mywowbb.com/forum57/15502.html

    It's interesting to read that thread because the range of topics are similar to many being brought up again more recently. Sometimes we cover the same ground multiple times, but that's probably a good thing!
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    Thanks Shotgun!

    I read the whole thread and it's a good read.

    GRB,

    Did you ever get a reply from the secondletter you sent or did you only send one?

    Does anyone know a lawyer we could call and ask their opinion? ......For free?
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    I never got another letter back from the city. Today I sent a letter to the new chief asking him about the veterans carrying in the parade yesterday, in school zone. Asked about there permit and where I can pick up an application to apply for one, and if they did not have one why did his men not arrest them for carrying a firearm in more than one school zone. I just have to wait and see if he will respond, I have a feeling he will not. The last cheif ignored me so I just went down to the city clerk. I will give him a couple days then I will go down to the police staion just ask if I could pick up the application.

    I would have never thaught about parade but it was talked about at the picnic and just wanted to see what the city has to say about it.

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    I would expect about the same response as if you asked them "Why don't you arrest them for not obeying traffic laws during a parade?"

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    This is what I got back from the Chief today. I have to say that I am glad that they are not going to arrest the veterans that is something that I never want to happen. I just wanted to see if they had set up an application for a permit, and thaught that this would be a good example of a person or persons that would need to have this permit. As far as them not being really firearms, One of the pictures in the paper had the caption " The rifle volley fire their weapons Monday May 25, 2009 during the Fountain Park Memorial Day program in Sheboygan." Fountain Park is in the middle of a school zone. Now I was not at the parade becasue I was getting ready go down to Milwaukee for the picnic. So maybe they really were not firearms, but if they were being fired I would think that they were.

    Mr. Ballogh,

    I have contacted the city attorney and he stated the following,

    I’m not sure they were actually really firearms, but the veterans were technically in violation of state law. However, the police department has chosen to exercise common sense and will not pursue a technical violation of the state law committed during a City-sponsored parade in celebration of Memorial Day by veterans who put their lives on the line to protect us.

    I do believe this covers it. The Police Department nor the city will issue permits for citizens to carry firearms in a school zone.

    Tim Eirich
    Sheboygan Police Department.






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    GRB wrote:

    Mr. Ballogh,

    I have contacted the city attorney and he stated the following,

    I’m not sure they were actually really firearms, but the veterans were technically in violation of state law. However, the police department has chosen to exercise common sense and will not pursue a technical violation of the state law committed during a City-sponsored parade in celebration of Memorial Day by veterans who put their lives on the line to protect us.

    I do believe this covers it. The Police Department nor the city will issue permits for citizens to carry firearms in a school zone.

    Tim Eirich
    Sheboygan Police Department.




    Sounds like a violation of the equal protection clause....

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    SprayAndPray wrote:
    GRB wrote:

    Mr. Ballogh,

    I have contacted the city attorney and he stated the following,

    I’m not sure they were actually really firearms, but the veterans were technically in violation of state law. However, the police department has chosen to exercise common sense and will not pursue a technical violation of the state law committed during a City-sponsored parade in celebration of Memorial Day by veterans who put their lives on the line to protect us.

    I do believe this covers it. The Police Department nor the city will issue permits for citizens to carry firearms in a school zone.

    Tim Eirich
    Sheboygan Police Department.




    Sounds like a violation of the equal protection clause....
    And smells likeHeller............

    He said "won't" not "can't"

    I've sent an email off to David Ritgers at cato.org as he wrote a recent article on this: http://www.cato-at-liberty.org/2009/...-zone-follies/

    I asked if he would offer up his opinoin or direct us to the proper people to do something about this.

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    I sent an email to Mr Rittgers asking if he could point me in the right direction on this. This was his reply:


    This may be a legitimate model for challenging the no-concealed carry policy in your state. I am familiar with the case of a pizza delivery driver and a retired police officer getting court recognition for their carry needs, and your state RKBA provision may provide the basis for broader challenges. You need to talk to a Wisconsin-barred attorney. If I knew a good one I would point you his/her way. I'm out of my depth on Wisconsin law and can't give you any substantive info beyond what I've said here.

    Best,

    David
    [/quote]
    Not sure why he went straightfor concealed carry but he didn't shoot anything down....so to speak.

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