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Wisconsin Carry Inc. challenges state school zone open carry ban - lawsuit filed!

logan

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BROKENSPROKET wrote:
I asked myseld the same question. I thought it might be someone trying to scam, but I did my research before I posted. Still, I think all donations should go to Wisconsin Carry Inc. and let them pay the lawyer.
Agree.
 

Yooper

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Houghton County, Michigan, USA
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jrm wrote:
apjonas wrote:
The federal GFSZA was reenacted after the Lopez case. It may be vulnerable but is a valid statute as of right now. You would think people filing suit would know this.
This case has nothing to do with the federal GFSZA.
In the "immediate release" it states:

"Wisconsin's Gun Free School Zone Act (GFSZA), which was modeled on the federal Gun-Free School Zone Act of 1990, prohibits the possession or shooting of a firearm within a school zone. It defines a school zone as in the school building, the school grounds, and the area within 1000 feet of the school grounds. The Federal GFSZA was struck down as unconstitutional in 1995. Wisconsin's GFSZA remains"

The original GFSZA (federal) was indeed deemed unconstitutional, however, congress passed a new GFSZA shortly after, and it still remains on the books.

IF the state law were to be struck down, the federal law (which has basically the same wording) would still be in effect.

So in essence, if the state law got struck down, but not the federal, you'd be exchanging a Class I felony, with 3 1/2yrs in prison and/or a $10,000 fine for a Federal felony with 5 years in a federal prison and/or a $5,000 fine
 

Wisconsin Carry Inc.

Wisconsin Carry, Inc.
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Onalaska, Wisconsin, USA
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scorpio_vette wrote:
please do not take this the wrong way, i just want to be cautious just incase. why is the mailing address for monetary funds of a WISCONSIN related gun group going to Georgia???
After consulting with several attorneys regarding this matter, Attorney Monroe was chosen by the Board of Directors. There have been some individuals on here who were critical of people/organizations seeking funds for legal purposes, who had stated, tell us where the escrow account is and we'll donate, but we won't line anybody's pocket, or something to that affect. That was the purpose of Attorney Monroe posting the location of where to send the funds directly.

Should you wish to donate to Wisconsin Carry, Inc. we are currently working on a down-loadable membership form that you can fill out and mail back, as well as a Internet based form both should be available late next week.

lockman wrote:
I thought the alleged violations contained in count #45 - 52 were 4th amendment issues not 14th, any explanation?
Now although the source is WikiPedia, this is the best explanation I could find on short notice as to why it is a 14th amendment violation.
Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions.
Now I am not an attorney, but here goes as best as I understand it:

Plaintiffs Bernsonand Hannan-Rock were denied a hearing before their property and liberty was seized.

As the green highlighted portion suggests,we are all supposed to be equal under the law, but the GFSZA precludes the WCI members from freely exercising their RTKBA. In many cities (that's why we need the GFSZ maps of as many as possible) it is impossible to walk from one end of town to the other while freely exercising our constitutional RTKBA.

As tocomments about the FEDERAL GFSZA, this was taken from this site: http://wise.fau.edu/~tunick/courses/conlaw/gunlaw.htmlwhich is a copy of the actual congressional record.
The original act made it a Federal crime to knowingly bring a gun within 1,000 feet of a school or to fire a gun in these zones, with carefully crafted exceptions. The Gun-Free School Zones Act of 1995 does exactly what the old act did. However, it adds a requirement that the prosecutor prove as part of each prosecution that the gun moved in or affected interstate or foreign commerce.
Again, we consulted several attorneys before proceeding and they were all in agreement as to this course of action.

Load up, Hoslter up, and Carry On.

Hubert Hoffman, Vice President
Wisconsin Carry, Inc.
http://www.WisconsinCarry.org
http://opencarry.mywowbb.com/forum57/
Hubert@WisconsinCarry.org
608-792-0669

edit: for punctuation
 

jrm

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The original GFSZA (federal) was indeed deemed unconstitutional, however, congress passed a new GFSZA shortly after, and it still remains on the books.

IF the state law were to be struck down, the federal law (which has basically the same wording) would still be in effect.

So in essence, if the state law got struck down, but not the federal, you'd be exchanging a Class I felony, with 3 1/2yrs in prison and/or a $10,000 fine for a Federal felony with 5 years in a federal prison and/or a $5,000 fine
You seem to believe that it is not possible to be prosecuted by both the state and federal governments for the same behavior. That belief is inaccurate.

Congress didn't really pass a "new" act, they just amended the old one. No federal court with jurisdiction over WI ever has said that the amendments make the act constitutional.

Again, however, this case has nothing to do with the federal act.
 

gbu28

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Seems to me, in order for me to walk off my property while carrying, both the state and federal law either have to be changed or shot down. This case, if successful, will take care of one of those obstacles. I'm not following the negative aspect of it.:?
 

gbu28

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Master Doug Huffman wrote:
gbu28 wrote:
Seems to me, in order for me to walk off my property while carrying, both the state and federal law either have to be changed or shot down. :?
Is there something exceptional about your property?

Lol, only to the extent that a school is less than 500 ft from it. I guess you could think of me as one of the 'special'. :)
 

Wisconsin Carry Inc.

Wisconsin Carry, Inc.
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Onalaska, Wisconsin, USA
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gbu28 wrote:
Seems to me, in order for me to walk off my property while carrying, both the state and federal law either have to be changed or shot down. This case, if successful, will take care of one of those obstacles. I'm not following the negative aspect of it.:?
EXACTLY! There isn't any downside to overturning the Wisconsin statute.
 

Lammie

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This is how Congress weasle worded it's way around the USSC declaration that the 1990 GFSZ law was unconstitutional. This law was passed by Congress 1n 1996 as P.L.104-208.

[align=left]Bloomfield Press, Phoenix • 1-800-707-4020 • GUNLAWS.COM • 8/31/05[/align]
[/font][/font]
[align=left]Gun Free School Zones Act—as reenacted[/align]
[/font][/font]
[align=left]Originally enacted in 1990[/align]
[/font][/font]
[align=left](P.L. 101-647, Sec. 1702(b)(1))[/align]
[/font][/font]
[align=left]Overturned by the U.S. Supreme Court, April 26, 1995[/align]
[/font][/font]
[align=left]Re: Federalism; Congress exceeded its authority under Commerce Clause.[/align]
[align=left](U.S. v. Lopez, 514 US 549)[/align]
[/font][/font]
[align=left]Reenacted by Congress, Sep. 30, 1996[/align]
[/font][/font]
[align=left](P.L. 104-208)[/align]
[align=left]Deletions • A d ditions[/align]
[/font][/font]
[align=left]18 USC § 922 Unlawful acts[/align]
[/font][/font]
[align=left](q)(1) The Congress finds and declares that—[/align]
[align=left](A) crime, particularly crime involving drugs and guns, is[/align]
[align=left]a pervasive, nationwide problem;[/align]
[align=left](B) crime at the local level is exacerbated by the[/align]
[align=left]interstate movement of drugs, guns, and criminal[/align]
[align=left]gangs;[/align]
[align=left](C) firearms and ammunition move easily in interstate[/align]
[align=left]commerce and have been found in increasing numbers[/align]
[align=left]in and around schools, as documented in numerous[/align]
[align=left]hearings in both the
[/font][/font]Judiciary [/font][/font][/font]Committee [/font][/font]o n the[/align]
[align=left]Judiciary
[/font][/font][/font]of the House of Representatives and[/align][/font][/font]
[align=left]Judiciary t h e
[/font][/font][/font]Committee [/font][/font]o n the Judiciary [/font][/font][/font]o f the[/align]
[align=left]Senate;[/align]
[align=left](D) in fact, even before the sale of a firearm, the gun, its[/align]
[align=left]component parts, ammunition, and the raw materials[/align]
[align=left]from which they are made have considerably moved in[/align]
[align=left]interstate commerce;[/align]
[align=left](E) while criminals freely move from State to State,[/align]
[align=left]ordinary citizens and foreign visitors may fear to[/align]
[align=left]travel to or through certain parts of the country due to[/align]
[align=left]concern about violent crime and gun violence, and[/align]
[align=left]parents may decline to send their children to school[/align]
[align=left]for the same reason;[/align]
[align=left](F) the occurrence of violent crime in school zones has[/align]
[align=left]resulted in a decline in the quality of education in our[/align]
[align=left]country;[/align]
[align=left](G) this decline in the quality of education has an adverse[/align]
[align=left]impact on interstate commerce and the foreign[/align]
[align=left]commerce of the United States;[/align]
[align=left](H) States, localities, and school systems find it almost[/align]
[align=left]impossible to handle gun-related crime by
[/font][/font]themselves;[/align]
[align=left]even t h emselves--eve n
[/font][/font][/font]States, localities, and school[/align]
[align=left]systems that have made strong efforts to prevent,[/align]
[align=left]detect, and punish gun-related crime find their efforts[/align]
[align=left]unavailing due in part to the failure or inability of[/align]
[align=left]other States or localities to take strong measures; and[/align]
[align=left](I)
[/font][/font]t h e [/font][/font][/font]C ongress has [/font][/font]t h e [/font][/font][/font]p ower, under the interstate[/align]
[align=left]commerce clause and other provisions of the[/align]
[align=left]Constitution, to enact measures to ensure the[/align]
[align=left]integrity and safety of the
[/font][/font]Nation’s N a tion' s [/font][/font][/font]schools by[/align]
[align=left]enactment of this subsection.[/align]
[align=left](2)(A) It shall be unlawful for any individual knowingly to[/align]
[align=left]possess a firearm
[/font][/font]t h at has moved in or that otherwise[/align]
[align=left]affects interstate or foreign commerce
[/font][/font][/font]at a place that[/align]
[align=left]the individual knows, or has reasonable cause to[/align]
[align=left]believe, is a school zone.[/align]
[align=left](B) Subparagraph (A)
[/font][/font]shall d o es [/font][/font][/font]not apply to the[/align]
[align=left]possession of a firearm—[/align]
[align=left](i) on private property not part of school grounds;[/align]
[align=left](ii) if the individual possessing the firearm is licensed to[/align]
[align=left]do so by the State in which the school zone is located[/align]
[align=left]or a political subdivision of the State, and the law of[/align]
[align=left]the State or political subdivision requires that, before[/align]
[align=left]an individual obtain
[/font][/font]s [/font][/font][/font]such a license, the law[/align]
[align=left]enforcement authorities of the State or political[/align]
[align=left]subdivision verify that the individual is qualified[/align]
[align=left]under law to receive the license;[/align]
[align=left](iii)
[/font][/font]which t h a t [/font][/font][/font]is—[/align]
[align=left](I) not loaded; and[/align]
[align=left](II) in a locked container, or a locked firearms rack[/align]
[/font][/font]
[align=left]which t h a t
[/font][/font][/font]is on a motor vehicle;[/align]
[align=left](iv) by an individual for use in a program approved by a[/align]
[align=left]school in the school zone;[/align]
[align=left](v) by an individual in accordance with a contract entered[/align]
[align=left]into between a school in the school zone and the[/align]
[align=left]individual or an employer of the individual;[/align]
[align=left](vi) by a law enforcement officer acting in his or her[/align]
[align=left]official capacity; or[/align]
[align=left](vii) that is unloaded and is possessed by an individual[/align]
[align=left]while traversing school premises for the purpose of[/align]
[align=left]gaining access to public or private lands open to[/align]
[align=left]hunting, if the entry on school premises is authorized[/align]
[align=left]by school authorities.[/align]
[align=left](3)(A) Except as provided in subparagraph (B), it shall be[/align]
[align=left]unlawful for any person, knowingly or with reckless[/align]
[align=left]disregard for the safety of another, to discharge or[/align]
[align=left]attempt to discharge a firearm
[/font][/font]t h at has moved in or[/align]
[align=left]that otherwise affects interstate or foreign commerce[/align]
[/font][/font][/font]
[align=left]at a place that the person knows is a school zone.[/align]
[align=left](B) Subparagraph (A)
[/font][/font]shall d o es [/font][/font][/font]not apply to the discharge[/align]
[align=left]of a firearm—[/align]
[align=left](i) on private property not part of school grounds;[/align]
[align=left](ii) as part of a program approved by a school in the school[/align]
[align=left]zone, by an individual who is participating in the[/align]
[align=left]program;[/align]
[align=left](iii) by an individual in accordance with a contract[/align]
[align=left]entered into between a school in a school zone and the[/align]
[align=left]individual or an employer of the individual; or[/align]
[align=left](iv) by a law enforcement officer acting in his or her[/align]
[align=left]official capacity.[/align]
[align=left](4) Nothing in this subsection shall be construed as[/align]
[align=left]preempting or preventing a State or local government[/align]
[align=left]from enacting a statute establishing
[/font][/font]gun-free g un free[/align][/font][/font][/font]
[align=left]school zones as provided in this subsection.[/align]
[/font][/font]
[align=left]18 USC § 921 Definitions[/align]
[/font][/font]
[align=left](a) As used in this chapter—[/align]
[align=left](25) The term “
[/font][/font]school zone[/font][/font]” means—[/align]
[align=left](A) in, or on the grounds of, a public, parochial or[/align]
[align=left]private school; or[/align]
[align=left](B) within a distance of 1,000 feet from the grounds of[/align]
[align=left]a public, parochial or private school.[/align]
[align=left](26) The term “
[/font][/font]school[/font][/font]” means a school which provides[/align]
[align=left]elementary or secondary education, as determined[/align]
under State law.
[/font][/font]
 

Nutczak

Regular Member
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Dec 2, 2008
Messages
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Make sur eyou guys spend the time to read the comments under each story too, It will gie you a good idea of the kind of idiots that want to restrict our rights.

The typical "They want guns in our schools now?" idiocy by a few.
 

oofdah

Regular Member
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Just got the email today.

Awesome. I will be sending donations myself.
 

Mike

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Fairfax County, Virginia, USA
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lockman wrote:
I thought the alleged violations contained in count #45 - 52 were 4th amendment issues not 14th, any explanation?
The 14th amendment has been held viasubstanative due process clause theory to incorporate the 4th amendment to apply against state power since Ohio v. Mapp.
 

apjonas

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jrm wrote:
apjonas wrote:
The federal GFSZA was reenacted after the Lopez case. It may be vulnerable but is a valid statute as of right now. You would think people filing suit would know this.
This case has nothing to do with the federal GFSZA.
As others have pointed out, it was claimed that the FEDGFSZA was dead. If it were then this case might make more sense. If you are going to go federal, why not take on both laws at the same time? Some of the arguments would be very similar. If you are only concerned with the state law why not go to state court? It seems much more likely that the SCoWI would take such a case than SCOTUS. Unfortunately, many of the legal concepts that prevailed in Lopez will have the opposite impact in this case.
 

Support The 2nd

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You guys are hilarious. You finally have a gun rights organization that DID something BEFORE asking you for money, and you ridicule their actions.

You want to see the meaning of divided we fall? Look no farther than this forum.

H I L A R I O U S
 

Seigi

Regular Member
Joined
Oct 1, 2008
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Baton Rouge, Louisiana, USA
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This is a civil suit filed in federal court. They don't need to defend themselves against the federal statute because they aren't being prosecuted for violating it, or any other criminal law, in this suit. They might not have been prosecuted at all - the complaint only lists up to arrests, and only for the state statute.

The federal statute might not even apply to Bernson or Rock. See part q(2)(B)(i) of the federal statute, shown below. It exempts possessors of guns "on private property not part of school grounds." From paragraph 38 of the complaint it would appear that Rock was arrested while carrying his weapon at his home. Paragraph 25 suggests that Bernson was arrested for allegedly having the gun at a gas station that was within 1,000 feet of a school. Both the home and the gas station are, presumably, privately owned and not part of the school grounds. Thus, if the federal statute was used against them they need not show it to be unconstitutional in order to recover damages - it's application would be erroneous by its own text. A court would thus not reach the issue of constitutionality.

They're claiming damages for treatment that resulted from the enforcement of the unconstitutional state statute. The federal statute being unconstitutional is not an element of that claim, so they don't plead it. The federal statute is, as of the time of that complaint, irrelevant to their claim, although that could change if the state tries to use it as a defense.

Support The 2nd wrote:
You guys are hilarious. You finally have a gun rights organization that DID something BEFORE asking you for money, and you ridicule their actions.

You want to see the meaning of divided we fall? Look no farther than this forum.

H I L A R I O U S
I R O N I C ;)
There wasn't any ridicule in this thread prior to your post, only civil discussion with regard to why the complaint contained what it did. You're tilting at a windmill.





Abridged statute:
18 U.S.C. § 922
...
(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm--
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is--
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities. ...
 

Lammie

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I am not a lawyer and the following is my opinion concerning the Wisconsin Gun-Free School Zone (GFSZ) statute 948.605.



The GFSZ statute is an onerous piece of ill-written legal diarrhea composed out of fear and panic.



One must be careful when interpreting the statute. Many think it prohibits the carry of a firearm in a school zone. It does not. It restricts the manner of carry. As the statute states; it is lawful to knowingly carry a firearm in a school zone if the firearm is unloaded and encased. This is similar to the observation the WSSC made in Hamdan and Cole. When each of those cases questioned the constitutionality of the concealed weapon prohibition statute 941.23 the Court declared 941.23 constitutional. It restricted the manner of carry and not the right to carry. Visible carry is a viable option by which to exercise the activities in Article I section 25. Likewise, the Gun-Free School Zone statute 948.605 does not infringe on the right to carry a firearm in a school zone but restricts the manner by which the firearm can be carried.



That distinction is important to the enforceability of the GFSZ statute. It is important because other rulings by the WSSC in Hamdan come into play. In paragraphs 40 and 41 of Hamdan the WSSC declared that the State’s police powers do not extend to the point that it can make regulations that eviscerate or functionally disallow the exercise of the right to keep and bear arms. That is exactly what happens when the GFSZ law is enforced. The statute prohibits the visible carry of a firearm within 1000 feet of school property. Statute 941.23 prohibits the carry of a hidden firearm. By enforcing both statutes the State eviscerates the right to keep and bear arms on property not under school management.



In a number of case decisions the WSSC has laid down the conditions needed to prove a violation to the concealed weapon statute. It said those conditions are three: The person knows the firearm is present, the firearm is within reach and the firearm is hidden from ordinary view. The GFSZ statute disallows the carry of a visible firearm and specifically requires that a firearm carried in the zone be encased (hidden from ordinary view). A person walking and carrying a firearm certainly knows it is there and of course it is within reach. Therefore, the person meets all conditions of carrying a concealed weapon. On the other hand the person is restricted statewide from carrying a concealed weapon by statute 941.23. The person’s rights given by Article I section 25 are effectively eviscerated. Eviscerated on property that is largely privately own or owned by businesses and under no direct control of the schools.



The State may argue that regulation of the carry of firearms within 1000 feet of a school is no different than the restrictions on carry in public buildings or handguns in taverns or businesses posted with no carry signs. It is different. Those restrictions apply only to the specific premises. The State may have the authority to regulate the carry of firearms within school buildings or on school property. In my opinion it exceeds that authority when it applies those regulations to property not under school ownership. The State should not mandate gun control regulations on businesses and property owners for which the schools have no legal authority or responsibility. A whole other issue of liability of those properties comes to light in case of an infraction that jeopardizes school safety.



The 1000 foot perimeter is exacerbated by three other issues.



First: the phrase “private property” is vague. Although carry of loaded firearms on private property is allowed there is no definition of what comprises private property. Does the term apply to sidewalks, streets, boulevards, businesses, parking lots or only to the property owned by the firearm carrier? What is private property?



Second: Most maps that depict the 1000 foot perimeter around school property show it as a circle, presumably as a 1000 foot radius from the school buildings. This is especially noticeable on the map the Milwaukee police department uses for enforcement. The statute reads “within 1000 feet of school property”. School property is rarely circular. It usually is shaped like an irregular polygon. Likewise the perimeter of the 1000 foot gun free zone is irregular. A person can literally be walking down a street in a “safe” zone and in the next block find themselves trespassing into the Gun-Free zone.



Third: The penalty does not fit the crime. While it may be argued that the possession of a unauthorized loaded firearm in school buildings or on school property justifies a felony conviction the carry of a firearm in the 1000 foot perimeter does not. It is especially unjustified as a first time offense and especially being that the 1000 foot perimeter is invisible.



By simultaneously enforcing the 1000 foot rule in the GFSZ statute 948.605 and the concealed weapons statute 941.23, the State has eviscerated the right of the public to keep and bear arms for any lawful purpose. It has taken away the ability of the public to provide for its own personal protection on property not under control of the school. A need that is very compelling in the school zone areas of larger cities. The crime statistics of shootings within school zones in Milwaukee bear that out. The State may argue that the school zone restriction is needed for public safety and is more compelling than the right to keep and bear arms. The following paragraph from Hamdan informs the state that its police power in that regard is limited.



¶39. The State's broad police power to regulate the ownership and use of

firearms and other weapons continues, notwithstanding Article I, Section 25.

Nonetheless, the amendment's broad declaration of the right to keep and bear

arms inevitably impacts the exercise of that power. In this state,

constitutional rights do not expand the police power; they restrict the police

power.



In my opinion there is no question that the GFSZ law infringes on Article I section 25 and should be contested.



Right or wrong these are my opinions.
 
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