Brass Magnet wrote:Hey guys,
I started working on a letter to my representatives and decided to get some input here. What I'm trying to do is get everything in one place so that any of the reps that may be too lazy to check for themselves have clickable links right there for everything. The fall legislative session is in progress now and although nothing may get done for a while on this I'd like to get it into their heads.
I'm also trying to take a moderate approach with this letter so that it makes sense to more people but I think; so far, I've done a fairly decent job of not making it too comprimising.
Anyway, without further ado.
The Problem With Wisconsin’s Gun LawsNo matter which side of the issue you’re on there’s a big problem here in the Diary State. The laws regarding firearms in this State are unclear at best, draconian at worst. They can, and sometimes do, leave a perfectly law-abiding citizen’s freedom up to the good will of law enforcement; and that should never happen. Laws should be clear, and understood by all; but in Wisconsin, even officers and district attorneys don’t understand the firearms laws.
Possibly the two most common places where a law-abiding citizen could get her/himself into trouble are: Wisconsin Stat. § 167.31 (Transportation in a motor vehicle.) and Wisconsin Stat. § 941.23 (Carrying a concealed and dangerous weapon.) § 167.31 makes it illegal to transport a firearm in a motor vehicle unless it is unloaded and totally enclosed in a carrying case. If you don’t see the beginning of a problem here, read the end of the last sentence again. Because of § 941.23 it is illegal to have a concealed weapon. You’ve just concealed it by putting it in a case and complying with § 167.31. The courts say that the elements for a violation of § 941.23 are three: 1. The weapon is hidden. 2. You are aware of the presence of the weapon. 3. The weapon is within reach. Now, I know what you’re thinking; “that’s crazy, it’s unloaded, so it’s not a concealed weapon.” but you’d be wrong, Wisconsin Stat. § 939.22 (Words and phrases defined.) defines a “dangerous weapon” as a loaded or unloaded firearm. Any time you have a firearm in a case and within reach, even when carrying it to and from your vehicle, you are in violation of § 941.23. Using the State V. Hamdan and State V. Fischer “two prong test” (see below) § 941.23 would be found unconstitutional as applied if anyone were to be charged for carrying an unloaded and encased weapon but it’s wrong to make a citizen pay for the legal fees to do it. The legislature and not the courts should fix it. This was asked for by the courts in several cases.
Now it pays to go into Wisconsin Stat. § 948.605 which is Wisconsin’s state-level Gun Free School Zone law. On its face it seems like a reasonable restriction to most people but when you delve deeper and add it to the tangled mess of gun laws in Wisconsin “reasonable” goes right out the window. One readily apparent problem is that it forces you to unload and encase firearms within 1,000 ft. of school property. This, as explained above, puts you at risk right away to be arrested for violating § 941.23; the concealed weapon prohibition. The less tangible but even more oppressive nature of this statue is to disallow citizens from peaceably carrying their firearms in large tracts of urban areas. Because of the many overlapping school zones, the statute effectively eviscerates the right to bear arms in places like Milwaukee; making it almost impossible for people to carry their firearms for personal protection. This is clearly unconstitutional, and I believe the courts agree:
The Wisconsin Constitution, Article 1, Section 25 “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose”.
State v. Cole [“First, based on the text of the constitution and the legislative history of the amendment, we note our agreement with both parties that Article I, Section 25 of the Wisconsin Constitution grants an individual, rather than a collective, right. As already noted, we accept the proposition that the right to bear arms amendment recognized a fundamental right.”]
State v. Hamdan [“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. 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.”]
Based on the Constitution and the case law, it seems clear that the § 948.605 is indeed unconstitutional and a superfluous restriction on law abiding citizens who live in the areas it affects. You may have to see a copy of the Milwaukee Police Departments school zone map to actually see how bad it is. About 75% of the city is a “Shool Zone” as defined by Wisconsin Stat. § 948.61.
Now, what should be done about it?Very nice brass. I would sign it.The legislature should totally abolish the vehicle carry statute § 167.31.
It serves no substantial purpose but to further the State’s police power in a way that will put law-abiding citizens at risk; at risk for being fined, and at risk of bodily harm or death from a carjacker or other violent criminal. Most other states don’t have this statutory prohibition or at least allow a personal protection exemption for handguns and keep the long gun prohibition to ease their fear of poaching. In reality, the poaching fear is quite unwarranted anyway. We all need to remember that criminals don’t care, and have uncased and loaded firearms in their vehicles right now. The only people this restricts are those who would otherwise follow the law. If you are going to poach, or commit another crime, you are already breaking the law; one more isn’t going to make you care. Furthermore; it’s a detriment to safety to need to unload and encase, uncase and reload every time you get in and out of your vehicle especially in urban areas.
The legislature needs to pass concealed carry legislation but leave lawful open carry alone.
Many people feel uncomfortable with openly carried handguns on both sides of the isle. Many gun owners would rather not draw attention to themselves and many other citizens would prefer not to see holstered handguns in public. In winter months it’s also much nicer to be able to concealed carry in many instances. However; it is important to realize the open carry is and always has been a constitutionally protected right; not a state licensed privilege. Concealed carry prohibitions were passed over 100 years ago so that people would openly carry since concealing your weapons was frowned upon. Furthermore; it’s quite apparent that openly carried firearms are a deterrent to crime. A criminal will definitely think twice about trying something with obviously armed citizens in the area. In summer months open carry is also a much more comfortable way to exercise ones rights.
The legislator needs to change or get rid of § 948.605; the Gun free school zone law, before the courts do it for them.
As I pointed out above, this statute is quite clearly unconstitutional and will end up costing some unfortunate citizen and the state a lot of money; and possibly life and limb, in the future. The federal version was found unconstitutional; albeit via a different mechanism, in U.S. V. Lopez, and a Wisconsin magistrate has said that it is still unconstitutional in U.S. V. Hoffmeyer. In the very least; this statute needs to be less restrictive to law abiding citizens. Changing it to only disallow firearms on school property may be an acceptable compromise to most. Another possible option would be to turn it into a penalty enhancer instead of a standalone statute; that way only criminals would feel its affect. ( How about changing it to read, the unlawful discharge or use of a fire arm in the 1000 ft school zone is prohibited.) An Enhancer is an excellent idea. They get what they want, we get what we want.
In conclusion; I hope I’ve made it obvious that there are enormous problems with Wisconsin’s gun laws. We as a society need to stop putting law abiding citizens at risk for something a criminal might do. It is the duty of the legislature to fix these problems so that their law abiding constituents are no longer at risk for arrest, seizure, and death.
Wisconsin Stat. § 167.31 (Transportation in a motor vehicle.)
Wisconsin Stat. § 941.23 (Concealed weapon prohibition.)
Wisconsin Stat. § 939.22 (Words and phrases defined. "Dangerous Weapon")
Wisconsin Stat. § 948.605 (Gun free school zone law.)
Wisconsin Stat. § 948.61 (Other dangerous weapons in school. Needed for “school” definition.)
Wisconsin Stat. § 941.235 (Carrying of firearm in a “public building”.)
Wisconsin Stat. § 941.237 (Carryinghandgun where alcoholic beverages may be sold and consumed.)
Wisconsin Stat. §29.089 (Phrohibition in state parks.)
Wisconsin Stat. § 66.0409 (State preemption law.)
Wisconsin Stat. § 939.63 (Penalties; use of a dangerous weapon.)
State v. Fry - 1986 WSC (defendant was properly convicted under § 941.23 for driving a vehicle with a gun locked in a glove compartment).
State v. Keith - Ct App. 1993 (To “go armed” does not require going anywhere. The elements for a violation of s. § 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach; 2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden)
State v. Walls - Ct App. 1994 (A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under § 941.23)
State v. Alloy - Wis. App. 2000 (affirming concealed carry conviction of man possessing handgun in a vehicle in conformity with Wisconsin Stat. § 167.31 because “Alloy's argument is based on the false assertion that he was trapped by a conflict between Wis. Stat. § 167.31 and Wis. Stat. § 941.23. A person transporting a firearm is governed by both statutes. To comply with § 167.31, the person must encase the weapon. To comply with § 941.23, he or she must place the enclosed weapon out of reach. See State v. Asfoor, 75 Wis.2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with § 167.31 is not required to violate § 941.23. The encased weapon can be lawfully transported out of reach.")
State v. Cole - 2003 WSC (Companion case to State v. Hamdan)
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)
State v. Fischer - 2006 WSC (§ 941.23 is constitutional as applied in this case. The defendant’s interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in prohibiting him from carrying a concealed weapon in his vehicle.)
State v. Vegas -2007 Milwaukee Cty. CC (The courtuses the Hamdan andFischer "two prong test"andgrants a pizza delivery mans motion to dismiss as it finds that § 941.23 is unconstitutional as applied to him.)
Thought I would just point out the two things in red.
Maybe the point should be made that if legislators continue to ignore these unconstitutional laws, their jobs could be in jeopardy come election time.