Since 2003 I guess I have read State v Hamdan at least a dozen times. Each time I get more irritated at the WSC logic. I almost come to the conclusion that because the Court had earlier in the day made a judgement in State v Cole that the concealed weapon prohibition statute was constitutional. In concert with that ruling the Court was determined to hand pick case law and and other state example so as to arrive at a predetermined conclusion. I think the one glaring example of that is the Court explanation of the definition of security as it exists in Article I section 25. "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose". The court determined that the definition of security was the protection of one's business or real property from perceived harm. The Court did recognize that security of one's person was part of the definition but ignored it. The Court used judicial construction to alter the meaning of the word security and its intent as it appears in Art I sec 25. This is where I get irritated. The WSC completley ignored the U.S. Case law of Caminetti v United States. Which addresses judicial construction. On page 242 of the U.S. Supreme Court ruling the Court said this.
"When the language of a statute is plain and does not lead to absurd or impracticable results, there is no occasion or excuse for judicial construction; the language must then be accepted by the courts as the sole evidence of the ultimate legislative intent, and the courts have no function but to apply and enforce the statute accordingly".
"Statutory words are presumed, unless the contrary appears, to be used in their ordinary sense, with the meaning commonly attributed to them".
In other words the total common definition of the word security must be applied. The Court can not construct the definition to it's own benefit.
This is important because the WSC said that the concealed weapon prohibition statute(941.23) is unconstitutional when applied to the security of one's home or business. If the WSC had applied the case law of Caminetti, that ruling would apply to the total common definition of security and the Court would have had to find 941.23 unconstitutional for the protection of one's personal and family security as well. Of course the WSC wasn't about to let that happen because it had already made its decision in Cole that statute 941.23 is constitutional. If it was aware of Caminetti it then would have been in a dilemma. It quite likely could not find 941.23 unconstitutional for one of the elements in Art I section 25 and not the others. Only by judicial construction of the definition of security could the Court avoid the embarassment of finding 941.23 constitutional in Cole and unconstitutional in Hamdan.
Unfortunately there is no way to contest a Supreme Court judgement. Only the legislature can draft new statute so that a previous judgement no longer applies.
End of RANT. IANAL but that's how I see it.
Thank you Captain Nemo for that.
No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)
If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor
I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)