imported post
Senator Decker surely should be applauded for initiating a bill to allow open carry of firearms in a vehicle. His bill is short sighted as it is intended to apply under hunting conditions. The repeal of 167.31 has been tried a few times in the past. Each time it has been "shot' down by the DNR. The DNR has so much "clout" in the legislature that it more than likely will be defeated again. Not to say it shouldn't be attempted again.
The real issue with the vehicle carry statute isn't it's goodness or badness it is that it is unconstitutional and should be repealed on those grounds. It is unconstitutional because in concert with the concealed weapon statute 941.23 it does not provide us a manner by which to carry a firearm on all vehicles on which firearm carry is allowed by the state. For example: Under the Rules of Operation section of statute 23.33 it is allowed that a firearm can be transported on an all-terrain-vehicle, providing the firearm is encased. An ATV is constructed so that it is impossible to carry the encased firearm "out-of-reach" as suggested by the SSC concerning automobile carry. That fact puts the ATV operator in violation of the concealed carry prohibition statute. By law a person can not carry a firearm concealed and can not carry it open on an ATV even though state laws says it is lawful to do so. In the case of hunting a number of circumstances, some of which may be physical, remotnes, accessability may require a person to use an ATV. That person has more of a compelling need to carry a firearm on a vehicle than the state has in enforcing the statutes. By opinions of the SSC in Hamdan, statute 167.31 is unconstitutional because the state does not allow the person a manner of carry and therefore infringes on Article I section 25. s167.31 is also unconstitutional on the grounds that it can not be equally applied to all vehicles. There are many "single passenger" vehicles on which a firearm can not be carried out-of-reach and therefore avoid a conflict between statutes 167.31 and 941.23.
Statute 167.31 should be repealed not on it's goodness or badness, but on it unconstitutionality.
That of course is my opinion but I think it is valid.
Following is a letter I wrote to Allen Lee (assistant attorney general).
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July 2, 2007
Allan Lee
Assistant Attorney General
Deputy Administrative Services
Department of Justice
17 W Maqin St.
Madison WI 53707-7857
Dear Mr. Lee:
Thank you for your prompt response to my letter to the Attorney General office concerning what I perceive to be a conflict between state statutes 941.23 and 167.31(2)(b).
Needless to say I am dissapointed by your response that state statutes prevent your office from giving opinions to private citizens, leaving them only the option of paying significant legal fees and court costs to get state level legal opinions on isssues that concern them. I know that your response on giving AG opinion is correct.
That does not diminish the problem that because it can not be universally applied to all motorized vehicles 167.31(2)(b) is unenforcable, and possibly unconstitutional.
The State Supreme Court has declared the concealed carry statute 941.23 a strict liability statute, without exception, including the activities contained in Article I chapter 25. The SSC also stated that concealed carry was a manner of carry and that the state has the authority to regulate the manner of carry, describing them as visible and hidden. It also stated that Article I chapter 25 demands that if the state does enforce prohibition of a manner of carry it must provide an alternative manner or yield to the amendment.
When a single passenger motor vehicle is used to transport a firearm it is impossible for the operator of the vehicle to avoid the three conditions defining concealment. Conditions that were handed down by the SSC. Under those conditions and if the vehicle is a single passenger vehicle such as snowmobiles, ATV's, utility vehicles, small boats etc. the State does not provide a manner of carry. The State prohibits both visible carry (167.31(2)(b)) and concealed carry (941.23), therefore, one of the two statutes must be unenforcible.
My dissapointment that the AGO is not able to get involved is augmented by the concern that there are persons, especially during hunting seasons, that are wrongly cited and fined each year by the DNR. Persons that pay the fine because they lack the resources to contest the citation through legal channels.
Respectfully,
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On this issue I have received email from Mike Lutz the head legal counsel of the DNR. He acknowledges that under the conditions I described there is a conflict between statutes 167.31(2)(b) and 941.23. His position was that if the firearm is properly encased as required by 167.31(2)(b) the DNR would turn it's head to the fact that it may violate 941.23.
In the aftermath of the cop shootings in Milwaukee and the AG memo on open carry the timing may not be right to ask for an AG opinion on this issue. I do think that when the timing is betterthe proper approach would be to find some way to force an AG opinion. That is find someone to ask the question where the AG is required by law to respond. Similar to what was done on the open carry issue.
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References:
167.31(2)(b)
(b) Except as provided in sub. (4), no person may place, possess or transport a firearm, bow or crossbow in or on a vehicle, unless the firearm is unloaded and encased or unless the bow or crossbow is unstrung or is enclosed in a carrying case.
941.23 Carrying concealed weapon.
Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor. Notwithstanding [font="Times New Roman, serif"]s. 939.22 (22)[/font], for purposes of this section, peace officer does not include a commission warden who is not a state-certified commission warden.
23.33(3)
(3)Rules of operation. No person may operate an all-terrain vehicle:
23.33(3)(e)
(e) With any firearm in his or her possession unless it is unloaded and enclosed in a carrying case, or any bow unless it is unstrung or enclosed in a carrying case.
Supreme Court rulings in State v. Hamdan
¶39. The State's broad police power to regulate the ownership and use of
firearms and other weapons continues, notwithstanding Article I, Section 25.
Nonetheless, the amendment's broad declaration of the right to keep and bear
arms inevitably impacts the exercise of that power. In this state,
constitutional rights do not expand the police power; they restrict the police
power.
¶40. The nature of this limitation is well established. Faced with similar
challenges, other states applying a reasonableness standard in the context of
regulating firearms have recognized that "[t]he police power cannot [ ] be
invoked in such a manner that it amounts to the destruction of the right to bear
arms." State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986) (emphasis added).18
Some states have employed language less demanding than "destruction," assuring
that "regulations or restrictions [on a constitutional right to bear arms for
defensive purposes] do not frustrate the guarantees of the constitutional
provision." City of Princeton v. Buckner, 377 S.E.2d 139, 145 (W. Va. 1988)
(emphasis added);19 see also State v. Kessler, 614 P.2d 94, 99 (Or. 1980)
(stating that regulations restricting the possession or manner of carrying
personal weapons are valid "if the aim of public safety does not frustrate the
guarantees of the state constitution"); State v. Boyce, 658 P.2d 577, 579 (Or.
Ct. App. 1983) (holding that a limitation on the right to bear arms is
permissible when the means chosen to protect the public "do[es] not unreasonably
interfere with the right"). Case law reveals that while the right to bear arms
for lawful purposes is not an absolute, neither is the State's police power when
it eviscerates this constitutionally protected right.
¶41. Article I, Section 25 does not establish an unfettered right to bear arms.
Clearly, the State retains the power to impose reasonable regulations on
weapons, including a general prohibition on the carrying of concealed weapons.
However, the State may not apply these regulations in situations that
functionally disallow the exercise of the rights conferred under Article I,
Section 25. The State must be especially vigilant in circumstances where a
person's need to exercise the right is the most pronounced. If the State applies
reasonable laws in circumstances that unreasonably impair the right to keep and
bear arms, the State's police power must yield in those circumstances to the
exercise of the right. The prohibition of conduct that is indispensable to the
right to keep (possess) or bear (carry) arms for lawful purposes will not be
sustained.
¶46. Under its broad police power, Wisconsin may regulate firearms. It may
regulate the time, place, and manner in which firearms are possessed and used.
The concealed weapons statute is a restriction on the manner in which firearms
are possessed and used. See State v. Perez, 2001 WI 79, 244 Wis.2d582, 628
N.W.2d820. It is constitutional. We hold that only if the public benefit in this
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 as applied.
¶48. Wisconsin's current CCW statute is very broad. It is essentially a strict
liability offense.20 The legislature has not authorized any statutory defenses
or exceptions (other than peace officers) to the broad prohibition found in the
statute. As presently construed, the statute prohibits any person, except a
peace officer, from carrying a concealed weapon, regardless of the
circumstances, including pursuit of one of the lawful purposes enumerated in
Article I, Section 25. In addition, the statute reaches unloaded firearms as
well as loaded ones, see Wis.Stat.§939.22(10) (defining a "dangerous weapon"
under the CCW statute), and applies to any weapon within a individual's reach,
see Asfoor, 75 Wis.2dat 433-34, if the person knows the weapon is present.
¶71. In circumstances where the State's interest in restricting the right to
keep and bear arms is minimal and the private interest in exercising the right
is substantial, an individual needs a way to exercise the right without
violating the law. We hold, in these circumstances, that regulations limiting a
constitutional right to keep and bear arms must leave some realistic alternative
means to exercise the right.
Emphasis = mine
