CC of unloaded firearm?

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I was under the impression that the frame is the firearm and all other parts are just that ,parts.If that is so then you can't even carry a frame concealed.It would be a long shot for a cop to arrest you for carrying a concealed frame ,but we do live in Wisconsin.

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Don't forget State v. Kieth. Kieth was sitting on a chair on her sister's porch with a firearm in a handbag. The handbag was resting on the floor by her side. She was charged and convicted of carrying a concealed weapon. She met all three conditions of concealment. It apparently wouldn't have mattered if the handbag was specifically designed to carry a firearm.

In researching the question of carrying unloaded or inoperable firearms. I came across this statute.

941.2965 Restriction on use of facsimile firearms.

(1) In this section "facsimile firearm" means any replica, toy, starter pistol or other object that bears a reasonable resemblance or that reasonably can be perceived to be an actual firearm. "Facsimile firearm" does not include any actual firearm.

(2) No person may carry or display a facsimile firearm in a manner that could reasonably be expected to alarm, intimidate, threaten, or terrify another person. Whoever violates this section is subject to a Class C forfieture. (emphasis mine}

This statute unleashes a number of what ifs. Firearm is defined in statutes as any weapon that propels and object by the force of gunpowder. So when, if ever, does or can, a non-operational or unloaded firearm transition from a firearm to a "facsimile firearm"?

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I think the only thing knowing the status of loaded vs unloaded in the Alloy case would help determine was if he was also in violation of 167.31 and not just 939.23.

From what I've found (CCAP, etc), Alloy was charged with violating 941.23, not 167.31 (or both) and I'm sure that was because the firearm was unloaded. A loaded firearm would just mean he was guilty of also violating 167.31, I don't see how it affects anything else?

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Great conversation guys, this forum has not disappointed!

Another thought I had was this: What constitutes a case? If memory serves (and I apologize I can't find it for the life of me) a case must velcro, zip or latch shut. It must be designed as a case - IOW, velcroing a handkerchief over your holster doesn't turn it into a gun case.

With that said why couldn't a guy invent a 'shirt gun case'. Said shirt would be marketed as a gun case and it would zip or velcro shut. The person would use a tuckable holster and the weapon would be fully 'encased'.

I know I'm reaching way out there and am certainly NOT advocating doing such a thing. Merely expanding on the historical practice of pushing the envelope to bring about change.

For example I have an email into my County DA asking a number of questions. One of which is, "If I am exercising my right to open carry and have placed my holster at the small of my back and then sit in a chair am I in violation of the law? If I am not and that chair is located at the barber shop and when I get my hair cut and there is a barber's cape over me is this still open carry?" The response has been deafening silence to date. I asked other scenario based questions as well.

I'm leaving tomorrow for a week of vacation - first vacation in a decade. Looking forward to your thought when I return!

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Your DA is not bound to respond.

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ShooterReady wrote:

For example I have an email into my County DA asking a number of questions. One of which is, "If I am exercising my right to open carry and have placed my holster at the small of my back and then sit in a chair am I in violation of the law? If I am not and that chair is located at the barber shop and when I get my hair cut and there is a barber's cape over me is this still open carry?" The response has been deafening silence to date. I asked other scenario based questions as well.

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I have also thoght of simular questions about when it goes from OC to CC. I have a tarp tent(just a flat canvas with tie downs at key points to make it easier to set it up as a pyramed tent). If I am OC'ing and decided to sit in the tent for warmth is that now CC'ing? I assume not. Now what if I take out the only pole that supports it(the corners are still staked down) and wrap the door opening around my shoulders for warmth. it that now CC or OC? what if I just have a trap that I wrap up in tokeep warm, I assume that that would be CC but at what point dose it go from OC in a tent to CC under a cape or blanket? The only difference between the three situations is one single tent pole and four tent stakes.

And just to let you know this isn't just hypothetical, because I do use my tarp tent as a wind berak when hunting or fishing when it gets below zero.

So agen I ask at what point does a tent become concealment. And if you want to broden it out even more. If your deer stand has a wind break around it and your gun is not vissable from the ground could someone with a grudge agenst you consider that to be concealed carry. If the gun (long gun or pistol) is on your lap and some casualy viewing you can't see the gun theroeticly could it be concidered CC?

I know that the second seanareo is unlikely but depending on how you read the laws it is possoble.

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Just remember the three VARiables behind concealing.

Any time you wonder, "is X legal?" just remember V.A.R., the VARiables that are dependent upon determining if you are in violation of concealing (s. 941.23).

V = Visibility: Is the weapon hidden from sight?
A = Awareness: Are you aware it's there?
R = Reach: Is it on my person or within my reach?

What your firearm is encased in does not matter. At all. Period... UNLESS... you are transporting it in your vehicle. Then it needs to be in a case designed for a firearm (eg, no AK-47 in a tennis racket bag).

Shirt gun case: is it legal? Well...
V = Visibility: Yep. It's hidden from view.
A = Awareness: Yep, I know it's there, I put it there.
R = Reach: Yep.
... all 3 violated, so not legal.

Does it matter if it's loaded or unloaded? Nope, only if you have it in a vehicle, because if it's not unloaded in a vehicle then you are in violation of the law (167.31) that says while transporting it needs to be unloaded.

Can I use the "shirt gun case" or "man purse designed to carry firearm" etc inside my vehicle to transport it? Sure, but not if you're wearing it or if it's within reach... and as long as the case meets the criteria of 167.31 (made for firearm, unloaded, and fastened, tied, zipped, etc with no part of the firearm exposed)

What Doug Huffman has been trying to say is that *technically*, since 167.31 says "put it in a case" to transport in a vehicle, this is making you violate all 3 rules behind VAR up until the moment it is out of your reach.

Hope that helps.

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BTW, I think a tent becomes concealment when it goes from being a staked, tied, etc, FIXED structural shelter and becomes some sort of whoopie, poncho, blanket, cape, etc.

As far as hunting, maybe this answers it?

From 941.23
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 stat-
ute? 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.

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. Art. I, #25

Maybe the state considers hunting a legitmate challenge in certain regards (like camo)... we obviously know not when it comes to security, defense, and recreation.

... also, maybe this "two-pronged test" is the reason it's OK to put a firearm in a case for transport... the defendant's interest in concealing the firearm in accordance with 167.31, and the state's interest obviously being to encase the firearm or transport.. and the second part... the defendant's only reasonable means under the circumstances, because of 167.31, are to encase the firearm... what do you think?

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Nutczak wrote:

If the case-law set in alloy does not allow us to walk down the street with an unloaded firearm in a case. Doesn't that specifically violate the 2nd amendment?

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Not yet. If the USSC rules for incorporation under the 14th, then it might, depending on what future cases the USSC is bound to be asked to answer regarding the meaning of "bear".

At present, one might argue (correctly in my opinion) that it violates Article 1, S25 of the WI constitution, but the 2nd applies only to federal laws.

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nkolya wrote:

BTW, I think a tent becomes concealment when it goes from being a staked, tied, etc, FIXED structural shelter and becomes some sort of whoopie, poncho, blanket, cape, etc.

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Lets say you are setting up a tent and need to be in side of it to put in the poles. At what point does it go from oc to cc?

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Hillmann wrote:

nkolya wrote:

BTW, I think a tent becomes concealment when it goes from being a staked, tied, etc, FIXED structural shelter and becomes some sort of whoopie, poncho, blanket, cape, etc.

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Lets say you are setting up a tent and need to be in side of it to put in the poles. At what point does it go from oc to cc?

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Good question. In a lot of cases I would say that when I carry a gun in my tent, it could be seen as concealment. I do it 100% for protection of my wife and I. I feel that as far North as Cameron, you have as much to worry about with true animals, as you might have with any people. At this point, the Wisconsin courts have been VERY unclear. In some case law, a person in Milwaukee can CC. I would hope that this would also hold true in the woods... I only have to worry about my fellow man... You have more problems as far as protection goes...

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*

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Um no, and please don't give the trolls any ideas.

I know what you mean and so do many others but still....ignorance breeds hatred.

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So, as soon as you reach for the case to remove it from the trunk, you're a criminal. In fact, just putting it in makes you a criminal. I guess Hugh Jarmis videotaped trip to the grocery store is cause for his arrest.

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The two-pronged test (941.23):
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?
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?

When you are transporting a firearm in a vehicle you are instructed by 167.31 to put it in a case. Let's apply this action to the test, doesn't matter if it's when you are putting it into or removing it from the vehicle:

1) The defendants interest in concealing the weapon was in compliance with state law (167.31). The state's interest is that people obey 167.31.
2) The defendant's only reasonable means under the circumstances were that the firearm was concealed because the defendant was instructed to do so by 167.31.

Now if you remove it from the trunk and then take a hike around town with it, that's different.

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I thought I read that the owner of a property could conceal weapons according to a supreme court decision, but I can't find it.

I thought I also read that the firearm wouldn't be considered concealed if it was in a case that was clearly visible as a gun case.

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nevinsb wrote:

I thought I read that the owner of a property could conceal weapons according to a supreme court decision, but I can't find it.

I thought I also read that the firearm wouldn't be considered concealed if it was in a case that was clearly visible as a gun case.

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State v. Hamdan - 2003 WSC (§ 941.23 is constitutional under Art. I, s. 25. Only if the public benefitin 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, as applied. 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)

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Nutczak wrote:

According to the DNR, I can alsolegally walk down the road withmy cased firearm that is unloaded, when I enter the woods I can uncase and load that firearm to hunt. If I am in a boat with an engine running or under power (sail, motor, rowing Etc Etc.), the firearm must be unloaded and fully closed in a case.

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According to the State, you can walk down the road with a loaded uncased firearm so long as you do not shoot.... WI Administrative Code NR10 (DNR) references 167.31 which states: 167.31 (4)(f) Subsection (2)(d) does not prohibit a person from possessing a loaded firearm within 50 feet of the center of a roadway if a person does not violate sub (2) (b) or(c). 2 b & c talk about vehicles. This means that "hunting"= "shooting" for the purposes of NR10 and loaded firearms within 50ft..

If you are in a boat (only if the motor is running), it must be "unloaded" NOT "in a case" NOT"encased".... 167.31(2)(a)


Alloy was specificallyan "encased" firearm placed inside of another container inside of a motor vehicle which was not easily discernable from outside of the vehicle in close proximity to it.

A fanny pack or a P08 case in a school zone.......... A P08 case could possibly be used for All "open" carry. It is easily discernable as a firearm case.

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J.Gleason wrote:

Despite the chance of being shot, stabbed, beaten and then stomped, I have to remind you all that there is no legal CCW in Wisconsin period and that includes an unloaded fire arm.

:uhoh:

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Yes there is if yourinterest to conceal a weapon considerably out weighs the police interest of you not concealing.