Lammie
Campaign Veteran
imported post
J.Gleason:
Smithman is correct. We will never have a Vermont style right to keep and bear arms. The reason: The state supreme court rulings in Hamdan. I have included pertinent paragraphs below. In short the Courtsays that Article I section 25 of the State Constitution is not an unfettered right. It is subject to reasonable state regulation. Regulation that will be judged by the courts as applied.
Paragraph 45 the Court says that even under Article I section 25 the state has the authority to regulate the manner of carry.
Paragraph 71 implies that the State only has to provide a manner of carry not all manners of carry.
It could very well mean that at some point in time we will have to make a decision as to which manner of carry we wish to have shielded by the contitution. I personally would prefer a Vermont style but the perponderance of "police power" in this state will never let that happen.
¶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.
¶45. In analyzing reasonableness, one must balance the conflicting rights of an
individual to keep and bear arms for lawful purposes against the authority of
the State to exercise its police power to protect the health, safety, and
welfare of its citizens. See Dano v. Collins, 802 P.2d1021, 1024 (Ariz. Ct. App.
1990); People v. Blue, 544 P.2d 385, 390-91 (Colo. 1975); Rawlings v. Ill. Dep't
of Law Enforcement, 391 N.E.2d758, 763 (Ill. Ct. App. 1979) (balancing the
sufficiency of the individual's interest in possessing arms with the legislation
restricting exercise of that interest); City of Seattle v. Montana, 919 P.2d
1218, 1224 (Wash. 1996); Buckner, 377 S.E.2d at 148-49; see also Michael D.
Ridberg, The Impact of State Constitutional Right to Bear Arms Provisions on
State Gun Control Legislation, 38 U. Chic. L. Rev. 185, 202-03 (1970) ("The
scope of permissible regulation in states with arms provisions is dependent upon
a balancing of the public benefit to be derived from the regulation against the
degree to which it frustrates the purposes of the provision."). In State v.
McAdams, 714 P.2d 1236 (Wyo. 1986), the Wyoming Supreme Court explained this
need for balance as follows:
[A] balance must be struck between the individual's right to exercise each
constitutional guarantee and society's right to enact laws which will ensure
some semblance of order. As these interests will necessarily conflict, the
question then becomes which party should accept the encroachment of its right.
The solution to the conflict is judicial in nature. Courts must be and are,
whether willingly or not, the ultimate arbiters as to whether or not there is,
in a particular case, an unwarranted invasion of constitutionally guaranteed
rights.
Id. at 1237-38. We agree with this characterization of the constitutional
inquiry, including the indispensable role of courts in determining whether
enforcement of the CCW statute has unreasonably impaired the constitutional
right.
¶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.
¶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.
Also: I held a FFL for 30 years. The federal goverment does not register firearms. It is prohibited from doing so by federal law. The National Instant Check System and the multi-page 4473 form, that must be complied with and filled out when purchasing a firearm from a FFL dealer, is frequently considered by some as a firearm registration process. Unless a firearm has been used in a crime within 18 months of purchase all record of it's purchase must be destroyed by law.
J.Gleason:
Smithman is correct. We will never have a Vermont style right to keep and bear arms. The reason: The state supreme court rulings in Hamdan. I have included pertinent paragraphs below. In short the Courtsays that Article I section 25 of the State Constitution is not an unfettered right. It is subject to reasonable state regulation. Regulation that will be judged by the courts as applied.
Paragraph 45 the Court says that even under Article I section 25 the state has the authority to regulate the manner of carry.
Paragraph 71 implies that the State only has to provide a manner of carry not all manners of carry.
It could very well mean that at some point in time we will have to make a decision as to which manner of carry we wish to have shielded by the contitution. I personally would prefer a Vermont style but the perponderance of "police power" in this state will never let that happen.
¶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.
¶45. In analyzing reasonableness, one must balance the conflicting rights of an
individual to keep and bear arms for lawful purposes against the authority of
the State to exercise its police power to protect the health, safety, and
welfare of its citizens. See Dano v. Collins, 802 P.2d1021, 1024 (Ariz. Ct. App.
1990); People v. Blue, 544 P.2d 385, 390-91 (Colo. 1975); Rawlings v. Ill. Dep't
of Law Enforcement, 391 N.E.2d758, 763 (Ill. Ct. App. 1979) (balancing the
sufficiency of the individual's interest in possessing arms with the legislation
restricting exercise of that interest); City of Seattle v. Montana, 919 P.2d
1218, 1224 (Wash. 1996); Buckner, 377 S.E.2d at 148-49; see also Michael D.
Ridberg, The Impact of State Constitutional Right to Bear Arms Provisions on
State Gun Control Legislation, 38 U. Chic. L. Rev. 185, 202-03 (1970) ("The
scope of permissible regulation in states with arms provisions is dependent upon
a balancing of the public benefit to be derived from the regulation against the
degree to which it frustrates the purposes of the provision."). In State v.
McAdams, 714 P.2d 1236 (Wyo. 1986), the Wyoming Supreme Court explained this
need for balance as follows:
[A] balance must be struck between the individual's right to exercise each
constitutional guarantee and society's right to enact laws which will ensure
some semblance of order. As these interests will necessarily conflict, the
question then becomes which party should accept the encroachment of its right.
The solution to the conflict is judicial in nature. Courts must be and are,
whether willingly or not, the ultimate arbiters as to whether or not there is,
in a particular case, an unwarranted invasion of constitutionally guaranteed
rights.
Id. at 1237-38. We agree with this characterization of the constitutional
inquiry, including the indispensable role of courts in determining whether
enforcement of the CCW statute has unreasonably impaired the constitutional
right.
¶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.
¶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.
Also: I held a FFL for 30 years. The federal goverment does not register firearms. It is prohibited from doing so by federal law. The National Instant Check System and the multi-page 4473 form, that must be complied with and filled out when purchasing a firearm from a FFL dealer, is frequently considered by some as a firearm registration process. Unless a firearm has been used in a crime within 18 months of purchase all record of it's purchase must be destroyed by law.
