Posted: Mon Nov 9th, 2009 08:16 am What part of the right to keep and bear arms, the second amendment of the federal constitution and Article I section 25 of the Wisconsin constitution don't some of you understand. Those documents make no mention of open carry or concealed carry. They merely say "right to keep and bear arms". The Wisconsin Supreme Court says that right is not unfettered and subject to reasonable regulation. It says that regulation of the manner of carry is reasonable as long as manner of carry is not regulated to the point that the rights are eviscerated. The Court makes those statements only for the purpose of protecting the long lived and useless concealed carry prohibition statute. The Court itself is as confused on the breadth of the second amendment and Article I section 25 as anyone. It says in Hamdan that the concealed weapon prohibition statute is a strict liability statute, it applies even to those activities contained in Article I section 25. Yet, the Court goes on to declare that under certain conditions of security, statute 941.23 is, in fact, unconstitutional. So, not only does the WSSC say that Article I section 25 is fettered it says it is conditional. That of course can't be.
How does all this confusion get resolved? It gets resolved by insisting that the state legislature revisit all the legacy firearm restrictions and asses their validity under the umbrella of Article I section 25. That will not be an easy task. The subject is very volatile and most politicians will do anything they can to avoid it. As daunting as the task seems it is not impossible. With a show of force from a collective group of gun right advocates, letters to media personal, letters to politicians, demonstrations, power of the voting booth and encouragement to those wrongly charged to fight the charge and provide them financial support to do so, we can send a loud and clear message to the political pundits that constitutional amendments trump state statutes and that their first obligation, as sworn under oath, is to protect and preserve the constitutions containing those amendments.
Some people are so dismayed by the slow and painful task of insisting that the legislature do the job right that they would prefer to dangle a carrot in front of it, a carrot camouflaged as a "carry law", a carrot which treats the symptoms of the problem and not the cause. The cause of which is the infringement of legacy statues on Article I section 25. Currently there are two “carrots” being bantered around the forum. One has been drafted by Gene German and the other by Hubert (bnhcomputing). Both proposals have supporters. My observations are; the authors of the proposals are well meaning in their own right but both proposals contain issues I am concerned with.
Gene German’s plan starts out confusing. He refers to ss941.23 as the open carry law. Ss941.23 is the concealed weapon prohibition statute. He proposes that open carry will continue as is with all it’s current restrictions in place. Those that would fulfill the requirements and obtain a carry permit would be allowed unrestricted carry. In my opinion such a condition would be unconstitutional. The WSSC ruled that the manner of carry could be regulated and still abide by Article I section 25. The Court did not rule that the rights conveyed by Article I section 25 are conditional based on the manner of carry. If statute 941.23 were to be struck down Article I section 25 would apply to all manners of carry be it concealed or visible. It is the legislature that determined to restrict the manner of carry not the constitution.
German then says that a permit shall be granted to any eligible applicant to carry or possess firearms either openly or concealed. His plan is supposed to be about carry of firearms not possession. His statement is written in such a way that with a single stroke of a pen the legislature can impose all the restrictions and criteria he proposes on both open carry and concealed carry. The criteria would include mandatory training requirements as well as mandatory background checks. The criteria would also allow a registration data base available to law enforcement for it’s official use. That of course is exactly what a registration system is all about. German’s plan would also make us pay for our right to carry. The initial cost would be $25 and valid for 5 years. Additionally, a renewal cost of $10 would be required every 5 years. What he fails to include is the cost of training and certification. The costs vary but generally range from $150 to $200. The renewal and re-certification cost are usually somewhat less $75 to $150, a cost that will reoccur every 5 years. The renewal requirements are especially bothersome to me. Except for financial gain to firearm instructors it serves little useful purpose. If his plan prevails then a permit should be treated as is a hunter certification, lifetime, with revocation to be determined by the courts.
The first response I expect to hear from Gene and his minions is that I miss the intent of his plan altogether. Not so. I understand that his intent is to have a dual carry condition in Wisconsin, one which recognizes a constitutional right to carry visible firearms, albeit with certain restrictions and one which would allow a privileged exception to those restrictions and allow concealed carry providing certain requirements and criteria is met.
As written, the plan is not explicit in the difference between rights and privilege. It is written in such a way that it opens the door to the legislature to invoke all the requirements of the privilege on to our fundamental rights. Our legislature is well known for its propensity to attempt to design a horse and end up with a camel. That has never been as evident as it was with the ill-fated Personal Protection Act. In order to garner enough votes for passage it would be all too easy for the legislature to apply the criteria of German’s plan to all manners of carry.
The points bnhcomputing proposes are more palatable although it also has specifics I am uneasy with.
The plan needs a preamble.
The right of an emancipated minor or adult to posses a firearm is already established by state law.
The duty to not retreat from a confrontation will be addressed by the castle doctrine law that will in all likelihood be passed next legislative session.
Item 2 is not required. It has already been ruled that a person’s rental domicile is his personal residence and subject only to those firearm restrictions as apply to an owned residence.
Item 5 amounts to a form of registration, whether voluntary or not. The word voluntary can very easily be omitted by any bill drafted by the liberal minded Legislative Reference Bureau.
The strongest point in bnhcomputing’s plan is the reference to a reciprocity permit. The sorting out of rights and privilege of firearm carry is a Wisconsin situation. A situation that can be resolved on its own merits. The problem becomes inter-state when we travel. Most other states require that a non resident planning to conceal carry in that state must have a valid conceal carry permit from their resident state. Wisconsin has no such permit available to it’s residents. Therefore bnhcomputing’s plan has merit in that it provides a process by which, for a nominal processing fee, or by application, a Wisconsin resident can obtain a permit that will allow other states to grant reciprocity. I totally agree with that approach. I would add that the plan should include nationwide reciprocity, a valid cc permit from any state would be granted reciprocity in Wisconsin.
There is a caveat to the plan. Some states require that evidence of training and certification must be shown before reciprocity will be granted. The proof of a state issued permit is by itself not sufficient. In those cases if a person wishes to carry in those particular states and elects to undergo training and certification for the privilege to conceal carry in those states, then that is a personal decision. I also prefer to refer to his plan as a reciprocity validation or reciprocity permit. The phrase carry permit has too many personal meanings and insinuations. We don’t need a new “carry law”. We already have two, the second amendment of the U.S. Constitution and Article I section 25 of the Wisconsin constitution.
Previously I had voiced my opinion that I favored an approach similar to Gene German’s. One that would recognize and unrestricted right to carry visible firearms but would provide a privilege to carry a concealed firearm. After reading many member opinions and further review I now realize that is a cop out situation that treats the symptoms of our problem and not the cause. The adoption of Article I section 25 to our state constitution changed the playing field of Wisconsin’s firearm laws. The WSSC said so in no uncertain terms in Hamdan. The Court said that the amendment created a considerable dilemma for law enforcement and the court system. It went on to implore the legislature to fix the problem. Words from the highest court in the state that the legislature has chose to ignore. Our approach should be to aggress ably remind the legislature of that direction and it’s oath of office and demand that it respond. Respond by reviewing the enforceability and constitutionality of the legacy firearm restrictions now that Article I section 25 rules.
There are some that will say “It can’t be done”. ”They’ll never do it”. “It’ll never work unless we give them this”. “It will never happen here”. Those are all words of defeat. Defeat before the fight has even started. I don’t have time for those kinds of words.
In regards to the NRA’s involvement: There is no question that the NRA has been instrumental in preserving our firearm rights. Without the NRA we would have gone by the way of England, Canada and Australia years ago. For that we owe it a debt of gratitude. My question is, “Who died and made it boss”. We welcome its assistance and influence but it is we Wisconsinites that should call the shots in regards to our state firearm rights.
