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Thread: OK, who is unclear that preemption under 66.0409 does NOT mean "unenforcable"?

  1. #1
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    OK, who is unclear that preemption under 66.0409 does NOT mean "unenforcable"?

    OK, who is unclear that preempted under 66.0409 does NOT mean "unenforceable"?

    Here is the link URL to the Chapter in PDF. Download it and save it for future reference. http://www.legis.state.wi.us/statutes/Stat0066.pdf Be sure to read all the conditionals, the "if" clauses.

    Well, it's been almost two hours with no admissions of uncertainty. I will make a RULE (15) complaint for any mention of 66.0409 as preempting enforcement of an ordinance without evidence that it predates November 18, 1995.

    Y'all can read the Statutes just as I can and some even think they can argue against them - that's easy for us I-ANAL
    Last edited by Doug Huffman; 09-02-2010 at 05:22 PM.

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    Back to the top.

    Back to the top.

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    Founder's Club Member bnhcomputing's Avatar
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    66.0409(2) 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.
    As I read and understand this, it would be against the law for any city, village, town, or county to enact an ordinance or adopt a resolution that is "more stringent than, a state statute."

    66.0409(4)(b) 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.
    As I read and understand this, "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," unless the ordinance is "the same as or similar to a state statute."

    So I carry everywhere I go except those places prohibited by state law. If a local LEO decides to enforce or threaten to enforce an ordinance that is more restrictive than state law, I will sue them and I am certain I will win. I have statements from multiple municipal attorneys informing me that those parts of the local ordinances prohibiting carry by anyone other than a police officer are unenforceable, have been since 1995, and have not been enforced since 1995.

    I will accept the legal opinion of the many attorneys I have talked to and carry on.

  4. #4
    Regular Member paul@paul-fisher.com's Avatar
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    So, just to recap, if a municipality passes a law more stringent after November 18, 1995 they have done an illegal act.

    Any law passed before that is unenforceable.

    Do I have it correct?

    So, if we find a law dated 11/19/95 or later we can ask the DA to prosecute?

    Not arguing, just trying to use the correct terminology once and for all.

    As a side note, since Elkhorn just redid their ordinance and didn't include the exception for 'owners permission' in a class-b establishment, they broke the law?

  5. #5
    Founder's Club Member bnhcomputing's Avatar
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    [QUOTE=paul@paul-fisher.com;1346184]So, just to recap, if a municipality passes a law more stringent after November 18, 1995 they have done an illegal act. [YES]

    Any law passed before that is unenforceable. [YES]

    Do I have it correct?

    So, if we find a law dated 11/19/95 or later we can ask the DA to prosecute? [NO, There is nothing in the law that says they have to remove the ordinance. We would need to take civil action against the municipality and ask the court for a declaratory judgment (restraining order) baring the municipality from enforcing the law. Once we had that, any attempt to enforce would be contempt of court.]

    Not arguing, just trying to use the correct terminology once and for all.

    As a side note, since Elkhorn just redid their ordinance and didn't include the exception for 'owners permission' in a class-b establishment, they broke the law?[Technically YES, but as I stated above, one would have to take civil action against the city and ask a judge for a declaratory judgment. I am currently putting together such a suit against a municipality that specifically threatened me.][/QUOTE]
    Paul: I highlighted and replied within your statement.

    The reason for the civil court action is because, as Doug has stated several times, there is no enforcement specification in the 66.0409 law, so we have to file civil suits.

    My understanding based on hours of talking with attorneys, but not legal advice.

  6. #6
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by bnhcomputing View Post
    [QUOTE=paul@paul-fisher.com;1346184]So, just to recap, if a municipality passes a law more stringent after November 18, 1995 they have done an illegal act. [YES]

    Any law passed before that is unenforceable. [YES]

    Do I have it correct?

    So, if we find a law dated 11/19/95 or later we can ask the DA to prosecute? [NO, There is nothing in the law that says they have to remove the ordinance. We would need to take civil action against the municipality and ask the court for a declaratory judgment (restraining order) baring the municipality from enforcing the law. Once we had that, any attempt to enforce would be contempt of court.]

    Not arguing, just trying to use the correct terminology once and for all.

    As a side note, since Elkhorn just redid their ordinance and didn't include the exception for 'owners permission' in a class-b establishment, they broke the law?[Technically YES, but as I stated above, one would have to take civil action against the city and ask a judge for a declaratory judgment. I am currently putting together such a suit against a municipality that specifically threatened me.]
    Paul: I highlighted and replied within your statement.

    The reason for the civil court action is because, as Doug has stated several times, there is no enforcement specification in the 66.0409 law, so we have to file civil suits.

    My understanding based on hours of talking with attorneys, but not legal advice.[/QUOTE]

    OK. Much clearer.

    Now Doug, what is the proper terminology to use when writing cities? If the law was pre 11/18/95 we use the term unenforceable, what verbiage should we use if it is post 11/18/95?

    Should we say 'illegal ordinance'?

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