Thank you for your well considered e-mail. I was asked to provide a brief response.
The City of Eau Claire is aware of s. 66.0409, Stats. The law allows local regulation of firearms to the extent such local regulation "is the same as or similar to, and no more stringent than, a state statute."
As I'm sure you know, state law does include numerous restrictions on the use, possession, transport, etc of firearms. I will not try to list them here, but just note that local regulations with state corollaries are permitted. Eau Claire Code s. 9.32.040 is partially supported by similar statutory restrictions.
However, I acknowledge that the restriction contained in Eau Claire Code s. 9.32.040 F. is not supported by any similar state statute and therefore unenforceable
. I do not wade into the deeper issue of whether such a restriction is possible under the Wisconsin or United States Constitutions as it presently is unnecessary absent statutory authorization. Section 66.0409 (4) (b) directs that such provisions of local code may not be enforced, and to the best of my knowledge this section of city code has not been enforced since November 18, 1995
I again thank you for your interest in this important matter.
Stephen C. Nick
City Attorney, City of Eau Claire
203 S. Farwell Street, P.O. Box 5148
P: (715) 839-6006 F: (715) 839-6177
IMLA Local Government Fellow
>>> "firstname.lastname@example.org" <email@example.com> 6/9/2008 2:41 PM >>>
Dear Chief Matysik:
It recently came to my attention that the City of Eau Claire has an ordinance forbidding the possession/carrying of a firearm in public 9.32.040 Possession of firearms--Public buildings, business establishments and public areas.
State Statute 66.0409(2) States:
(2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
State Statute 66.0409(4)(b) States:
(b) If a political subdivision has in effect on November 17, 1995, an ordinance or resolution that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, and the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995.
Upon review of the Wisconsin Supreme Court case State vs. Hamdan (2003) (especially noted in paragraphs 41, 42, and 71) in order for the state to remain in compliance with Article I, Section 25 of the Wisconsin State Constitution, the state must allow the individual a way to reasonably keep/possess and bear/carry arms for lawful purposes. Since concealed carry of a firearm is prohibited, openly carrying of a firearm (holstered, visible, and in a non-threatening and peaceful manner) is the only way for an individual to exercise this right.
Consequently, this means that city ordinance 9.32.040(F) cannot be enforced and further it would be a violation of a citizens constitutional rights should he/she be charged with disturbing the peace or disorderly conduct for lawfully bearing arms, even if it may unintentionally create public discomfort.
I right this strictly as an informative letter, should the department receive a report from a concerned citizen regarding a â€śman with a gunâ€ť when it may simply be a law abiding citizen lawfully exercising their constitutional right.
A reply would be greatly appreciated, and I would like to thank you for your time and service.