Response from LaCrosse County DA re: McDonald vs Chicago and park prohibition

Posted below is my question to and the response from DA Tim Gruenke. I would welcome some responses from the forum to formulate a reply. Thank You gentlemen.


Dear Tim,

I recently sent a request to Corporation Counsel to review county ordinance 19.03(1) as it is unenforceable by state statute 66.0409(2). In light of the attached press release from the Jackson County District Attorney there may be several other ordinances that have become unenforceable and need to be removed from the County Ordinances. I am asking that you stand by your oath to uphold the constitution and join District Attorney Fox in his first obligation being to the citizens in upholding both the state and federal Constitutions. As a citizen of LaCrosse County I am asking that you please clarify your position in a press release as well. I would appreciate your prompt attention to this important matter.

Respectfully Submitted,
Brent Hancock


Brent,

There is a State law that provides:

(2) Except as provided in sub. (3), no person may have in his or her possession or under his or her control a firearm on land located in state parks or state fish hatcheries unless the firearm is unloaded and enclosed within a carrying case.

The statute you point to says the county can not be any more restrictive than state law and the county ordinance provides:


No person shall have in his/her possession, or under his/her control, any firearm or airgun unless the same is unloaded and enclosed within a carrying case.

So it appears the county law is not invalidated by any state law, at least in my initial reading of it.

Also, I've contacted DA Fox regarding his press release because I don't read the court's decision in the same way. Here is part of the holding from Judge Alito:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.
So I don't agree at all that the court invalidated the statutes relating to carrying weapons in to public buildings, or schools, etc. In fact Alito seems to say just the opposite. Regarding concealed carry, Wisconsin has already addressed the idea that for self-defense in some situations you can conceal weapons, and I don't see anything in the McDonald or Heller decision changing that concept. In other words, you can carry a gun openly, other than in government buildings, schools, taverns, etc. You may be able to carry a concealed weapon for self defense, depending on the circumstances, and the county or city or state cannot keep you from owning weapons in your own home. Beyond that I don't see the court case changing other federal or state laws regarding carrying of firearms.

I hope this clarifies the law, hopefully I can get a hold of Gerald this week and see where he got his conclusion from. If you have any questions feel free to e-mail or call.

Tim

Is the D.A. a Republican? If so I would start by sending him a copy of the newly written platform for the Wisconsin GOP which supports Constitutional Carry. If he doesn't agree with that then he is not an honest Conservative Republican.
Other than that whether he is republican or democrat he is still sworn to uphold the constitutions of Wisconsin and the U.S.
As far as the park restrictions go, the cities and the counties all have more parks in total then the state does. The amount of acreage if added together would amount to more acreage than is used for the state parks, therefore creating a larger area of prohibition making city and county laws ordinances more stringent then the state law.
Not to mention that your right to self defense does not go away inside a city or county park.
Maybe your DA has not been watching the news lately to see the cougar and bear sighting through out the state not to mention the criminal element.
If your DA doesn't get on board then form a campaign against him and help his challenger win at election time. Maybe that will get his attention.

At this time I have not received any reply back from the Calumet County DA who claims to be a Republican.

bhancock said:

Posted below is my question to and the response from DA Tim Gruenke. I would welcome some responses from the forum to formulate a reply. Thank You gentlemen.


Dear Tim,

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The part I take issue with is this, The Constitution says and I quote; A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. How in the Orwellian Lib world do these statutes not infringe on my right to bear arms?

Take a peek at Amendment 9 too while your at it.

A significant point of logic needs to be expressed. If the individual right of the people to keep and bear arms did not exist first, then a militia could not be formed to protect the free state.

QED

Significant jurisprudence has taken place since 1791, not least the constitution of the free and sovereign state of Wisconsin in 1848. In 1791 the Constitution and Bill of Rights and the Second Amendment to the BoR was effective against only the national government. Wisconsin Constitution, I § 25 was not even voted on until late 1998. Only now, with McDonald v. City of Chicago has the Second Amendment been incorporated into the Fourteenth Amendment against the states.

But you knew that, choosing instead to make rhetorical points by ignoring (same root as of "ignorant") history.

QED = quod erat demonstrandum typically signifies the conclusion of a proof, mathematical or logical. I am not a lawyer and see no legalistic logical proof.

reasonable circumstances?

what are reasonable circumstances to carry a concealed weapon?

But you knew that, choosing instead to make rhetorical points by ignoring (same root as of "ignorant") history.

QED = quod erat demonstrandum typically signifies the conclusion of a proof, mathematical or logical. I am not a lawyer and see no legalistic logical proof.

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Hi Doug, did you wake up grumpy from your nap?

I am not a lawyer either and don't have to be in order to see logic. A) "A well regulated Militia, being necessary to the security of a free State," cannot exist if not for B) "the right of the people to keep and bear Arms, shall not be infringed."

To me, that isn't any different than "an acceleration of a mass cannot exist if there is not a net external force", or are you going to say that Newton's laws are illogical too?

I would think that reasonable circumstances would be, if you were taking money to a bank after work, delievering pizza in a bad nieborhood, things of that nature. OH wait=== how about im taking my money to the store to buy food or clothes or im bringing home a pizza for dinner. If the law does state that, coudnt that be what we need to conceal carry? what is the differense between a pizza dielivery guy and a store manager, What is the difference between them and us. NOTHING but they do it for work we do it for our families....

A) premise, magic for a syllogism, B) conclusion proved. QED

Akin to Professor Gun standing at his blackboard, writing your "A)" as premises, your "B)" as conclusion and waving his hand and saying "magic happens" as syllogism.

I nap typically for an hour from 1400 or 1500.

Some real thought

I am not looking for a critique of how I parsed the question; possibly I took a wrong approach with a statute argument instead of a Constitutional argument. We all know the Constitutions of both the US and the state allow a fairly unrestricted carry right. Based on McDonald vs Chicago, I would like some real thoughtful ideas of which direction to take this argument with the DA. Some of your posts have been clear, others are just restating what we (most of us) already understand. I do intend on rebutting with overarching rights afforded by the Constitution using some of the statements from McDonald. I would like to include some of what I have read that seems to show one statute conflicting with another and to ask him for his clarification of which statute takes preference over the other. It seems like Mr. Gruenke is open to some dialogue right now, so give me some clear ideas.

bhancock said:

I am not looking for a critique of how I parses the question, possibly I took a wrong approach with a statute argument instead of a Constitutional argument. We all know the Constitutions of both the US and the state allow a fairly unrestricted carry right. Based on McDonald vs Chicago, I would like some real thoughtful ideas of which direction to take this argument with the DA. Some of your posts have been clear, others are just restating what we(most of us) already understand. I do intend on rebutting with overarching rights afforded by the Constitution using some of the statements from McDonald. I would like to include some of what I have read that seems to show one statute conflicting with another and to ask him for his clarification of which statute takes preference over the other. It seems like Mr. Gruenke is open to some dialogue right now, so give me some clear ideas.

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I would suggest arguing the 9th Amendment as well.

i was hoping that the movement in the d.a.'s position would start a landslide. apparently it's not raining hard enough yet (to create conditions that favor a landslide)

bhancock said:

I am not looking for a critique of how I parsed the question; possibly I took a wrong approach with a statute argument instead of a Constitutional argument. We all know the Constitutions of both the US and the state allow a fairly unrestricted carry right. Based on McDonald vs Chicago, I would like some real thoughtful ideas of which direction to take this argument with the DA. Some of your posts have been clear, others are just restating what we (most of us) already understand. I do intend on rebutting with overarching rights afforded by the Constitution using some of the statements from McDonald. I would like to include some of what I have read that seems to show one statute conflicting with another and to ask him for his clarification of which statute takes preference over the other. It seems like Mr. Gruenke is open to some dialogue right now, so give me some clear ideas.

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I would submit the following for consideration:

First, Trempealeau County does not have any such "park" statute, it was removed by the county board after enactment of 66.0409.

Second, 29.089 is titled, "Hunting on land in state parks and state fish hatcheries." It is clear the legislative intent was to restrict hunting, NOT the right to keep and bear arms as protected in Article 1, Section 25 of the State Constitution.

Third, 66.0409(2) reads: "Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute." (Emphasis mine).

AND 66.0409(4)(b) reads: If a political subdivision has in effect on November 17, 1995, an ordinance or resolution that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, and the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995. (Emphasis mine).

Fourth, in 2008, the Eau Claire City stated (and I quote) "Section 66.0409 (4) (b) directs that such provisions of local code may not be enforced, and to the best of my knowledge this section of city code has not been enforced since November 18, 1995"

Fifth, state law exempts state parks ONLY, while the County ordinance (leaving state law enforceable) would exempt BOTH state parks AND county parks making the county ordinance more stringent than state law.

That's what I'd go back to the DA with

Keep up the good work bhancock

Russf said:

I would think that reasonable circumstances would be, if you were taking money to a bank after work, delievering pizza in a bad nieborhood, things of that nature. OH wait=== how about im taking my money to the store to buy food or clothes or im bringing home a pizza for dinner. If the law does state that, coudnt that be what we need to conceal carry? what is the differense between a pizza dielivery guy and a store manager, What is the difference between them and us. NOTHING but they do it for work we do it for our families....

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Read the Wisconsin Supreme Court decisions in State v. Fisher, State v. Dundon, State v. Cole and State v.Hamdan. Also note that in Hamdan the WSC ruled that only the courts have the authority to determine if the carry of a concealed weapon was reasonable. The WSC also ruled that the decision must be made "as applied", that means the decision is dependant on the facts and circumstances involved in the case. In short, there is no layman answer to your question.

The Hamdan, Fisher and Cole decisions were all flawed and only meant to preserve the police power of the State. Unfortunately we must live with them unless we can prove them unworkable. Might as well spit into a hurricane.

Well said.

Tim Gruenke said:

I hope this clarifies the law, hopefully I can get a hold of Gerald this week and see where he got his conclusion from. If you have any questions feel free to e-mail or call.

Tim

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It's funny. Even I understood where he got his conclusion from before we actually heard it from the horses mouth. I would think that someone; unlike myself, who is an actual lawyer would get it.

AFAIK, he got his conclusion from the fact that it was ruled a fundamental, individual right. With all other fundamental rights, the right must be considered before the police power, effectively putting the burden of proof on the state instead of the individual. Also, any laws restricting it must be "narrowly tailored" in light of this. This is the exact opposite of how Wisconsin currently deals with these laws. For example Hamdan; and I paraphrase, basically stated that the defendant must prove that his interest in concealing the weapon must be substantially greater than the states need to enforce the statute AND that he must have no other way to exercise the right. In the Jackson county DA's opinion (I think), Hamdan get's flipped on it's head. Making CCW legal for the most part and making the state try to prove that their infringement is constitutional as applied.

I wonder what Mr. Gruenke thinks about that?

Doug Huffman said:

Akin to Professor Gun standing at his blackboard, writing your "A)" as premises, your "B)" as conclusion and waving his hand and saying "magic happens" as syllogism.

I nap typically for an hour from 1400 or 1500.

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More verbal masturbation from Dougie.

Better'n you're getting! *PLONK*

professor gun said:

More verbal masturbation from Dougie.

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Better'n you're getting, sac à merde.*PLONK*

ETA much later; "it is also used as a verb: "I plonked that idiot Tom". As a public repudiation of the plonked poster, it is appended to the end of one's reply (or may constitute the entire reply). A user might also simply reply to the impugned post with the word "Plonk". http://en.wikipedia.org/wiki/Plonk_(Usenet)

professor gun said:

More verbal masturbation from Dougie.

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Oh no you've been plonked by the Master Bater PG!

Better take a shower and start a course of antibiotics.