Following are two emals I have sent to the personal email address of Attorney General J.B. Van Hollen. I sent carbon email to my legislative representatives as well. I don't expect a written rsponse from the AG because state stautes prohibit the AG from giving advice to us commoners. Anyway sharpen up your cynicism and have at them.
Hunting season is upon us and many of us will be transporting firearms in or on vehicles to our hunting locations. Because of physical conditions many of us will be using single passenger vehicles to do so. Most common will probably be all-terrain-vehicles (ATV) and snowmobiles. Therein lays a problem. State statutes permit the transport of a firearm on an ATV or a snowmobile with the restriction that the firearm be encased. The firearm must be encased so that no part of the firearm is visible. Statute 167.31contains the requirements and conditions one must meet. Complying with 167.31 puts a person at risk of violating statute 943.21 which explicitly prohibits the concealed carry or transport of a dangerous weapon. The person is at risk because in complying with 167.31 they meet all the conditions the Wisconsin Supreme Court says defines concealment; the weapon is hidden from view, the person knows the weapon is present and the weapon is within reach. The Court has made that statement in at least three firearms related cases Hamdan, Kieth and Cole.
In State v. Alloy the apparent conflict between statutes 941.23 and 167.31 was argued. The III District Court of Appeals rejected the argument. The Court ruled that there is no conflict. A person is required to comply with both statutes and can do so by carrying the firearm “out of reach”. I believe that the Court erred on that ruling. It appears the Court believed that a firearm will always be transported in or on a vehicle that was constructed such that carry out of reach is possible. That of course is not the case. There are many vehicles meeting the definition of vehicle in state statute that are constructed in such a way that carry out of reach is not possible. Two such vehicles being ATV’s and snowmobiles as previously mentioned. (State statutes define vehicle as any conveyance that can be driven or drawn on a public roadway 340.01(74) )
There is no question that under the umbrella of constitutional amendments Article I section 25 and Article I section 26 to the Wisconsin constitution that if there is presumed to be no conflict between the two statutes, there certainly is a great deal of confusion, confusion that the hunters of Wisconsin deserve a clarification of.
The most recent year I have figures for (2006) reports that 31 hunters were cited by the DNR for carrying an uncased firearm on an ATV. Accordingly, I had a number of correspondences with the DNR concerning what I consider a conflict between 941.23 and 167.31. The conclusion from the DNR was that if a firearm is transported on an ATV so that it complies with 167.31 the DNR will overlook the concealment issue. The DNR was quick to add that it spoke only for the agency and not other areas of law enforcement. That in itself is bothersome. Operation of an ATV on many public roadways in Wisconsin is now allowed. While it is of some comfort that the DNR will not cite a person for carrying a concealed weapon if the transported firearm is encased IAW 167.31 it makes a person concerned as to how a state sheriff department may react.
The risks and penalties between violations of statutes 941.23 and 167.31 are extreme. Statute 941.23 carries with it a charge of a class A misdemeanor with possible penalty of 90 days in jail and/or a thousand dollar fine. A violation of 167.31 carries with it a citation and a penalty of a forfeiture of one hundred dollars plus a surcharge of up to 75%. Unfortunately the relatively minor penalty for carrying an uncased weapon will prevent a court challenge on the issue of conflict. Under these financial times it is unlikely that anyone cited for a violation of 167.31 will trade a maximum forfeiture of $175 for a multi-dollar court challenge. That is why this confusion between statutes 941.23 and 167.31 needs clarification from you, the highest ranking law enforcement officer in our state.
I fully understand that state law prevents you from responding to inquires from the general public. I am not asking for a personal response. I am asking that you review this situation and the issues of constitutionality and that you provide instruction to the hundreds of thousands of Wisconsin hunters. Instructions so that we may enjoy our passions for hunting and not have to be concerned with which law enforcement authority may be monitoring us. As a fellow hunter I’m sure you share my concerns.
On October 27 this year I sent you an email expressing my concern that under certain conditions state statutes 941.23 (prohibition of concealed carry of dangerous weapons) and 167.31 (the requirement that firearms be encased when in or on a vehicle) are in opposition to each other. I want to add this information as an addendum to that correspondence.
State statute 23.33(3)(e), as contained under the rules of operation of ATV’s 23.33(3), implies that the transport of a firearm on an ATV is permissible. It is permissible only with the restriction that it be encased, presumably encased IAW statute 167.31. As expressed in my email of October 27, attached, I am concerned that the restriction argues with statute 941.23 prohibiting the concealment of a firearm under any and all conditions.
In addressing that argument in the April 4, 2000 case of State v. Nick Alloy the District III Court of Appeals ruled in par. 3 “Much of Alloy’s argument is based on the false assertion that he is 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”. Of course it is not possible to place an encased (concealed) weapon out of reach on an ATV.
I say the weapon is concealed based on the ruling by the Wisconsin Supreme Court in the 2003 case of State v. Munir A. Hamdan that three conditions define concealment: The weapon is known to be present. The weapon is within reach. The weapon is hidden from view. A similar ruling was also made in the WSSC opinion in State v. Keith.
Most important to my concern is that the WSSC in Hamdan expressed in para. 72 that there are two manners of carry, visible and concealed. In concert with that the Court made this statement in para. 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
In paragraph 71 of Hamdan the Court made this ruling “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”.
Wisconsin statutes permit the transport of a firearm on an ATV. It permits it providing the firearm is not visible. On the other hand Wis. Statute 941.23 prohibits the carry of a hidden firearm. By enforcing both statutes the State does not “leave some realistic alternative means to exercise the right”. Not only on an ATV but for that matter any vehicle constructed such that carry out of reach is not possible.
There can be only one of two solutions to this dilemma, carry of a firearm on any vehicle that does not allow the weapon to be carried out of reach is unlawful, or one or both statutes 167.31 and 941.23 are unconstitutional.
I think I'm going to write a letter as well. I hate the juggling act I have to perform every time gearing up or packing in to my vehicle after hunting. Although the law says it's legal to lean an unloaded firearm against a vehicle I'm notconvinced many wardens know and/or care. I then must unload my rifle, hang onto it with one hand while I take off my backpackand dig out my keys with my other hand.It would be so much easier ifI could just lay the rifle on the car. When in the parking lot of public hunting lands you have to make sure you're playing itdouble safe - I always get that paranoid feeling of being watched!!