Page 1 of 3 123 LastLast
Results 1 to 25 of 55

Thread: If you open carry the day before deer season you are violating the DNR law

  1. #1
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    If you open carry the day before deer season in the woods violating the DNR law

    If you open carry the day before deer season you are knowingly violating the law as the law reads:

    It is illegal to:
    • possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless
    the firearm is unloaded and enclosed within a carrying case.

    The whole law

    possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless the firearm is unloaded and enclosed within a carrying case. Exceptions: target shooting at established target ranges, target shooting on private lands by landowners and immediate family members who live with them, waterfowl hunting during open season, hunting game birds on licensed bird hunting preserves, and hunting turkeys and small game in CWD Management Zone units. Note: An established target range means an existing location that is set up for target shooting with firearms as its major purpose.

    There is no exception to open carry stated nor does it specifically state that the regulation applies only in the woods, so, anywhere in Wisconsin you posess a firearme in the woods or not; even while open carying the day before deer season, you are violating the DNR regulation as it is written.

    Don
    Last edited by cowboyridn; 11-02-2010 at 04:58 PM. Reason: change wording

  2. #2
    Regular Member
    Join Date
    Mar 2010
    Location
    North Central Wisconsin, ,
    Posts
    768
    Here is a thought,


    If it is a DNR rule then only a DNR warden would be able to enforce it. Does a county deputy sheriff enforce the DNR regulations, for example the bag limit of squirrels.

  3. #3
    Regular Member hardballer's Avatar
    Join Date
    Jul 2009
    Location
    West Coast of Wisconsin
    Posts
    925
    I suspect Wisconsin Constitution trumps DNR law...

    Article I, §25
    Right to keep and bear arms. Section 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998]
    Last edited by hardballer; 10-28-2010 at 09:47 PM.

  4. #4
    Regular Member oak1971's Avatar
    Join Date
    Jun 2008
    Location
    Wisconsin, USA
    Posts
    1,937
    I'd like see them enforce that. I hunt on our own property and I'll be dammed if they can stop me from OC.
    In God I trust. Everyone else needs to keep your hands where I can see them.

  5. #5
    Regular Member paul@paul-fisher.com's Avatar
    Join Date
    May 2009
    Location
    Chandler, AZ
    Posts
    4,047
    Quote Originally Posted by cowboyridn View Post
    If you open carry the day before deer season you are knowingly violating the law as the law reads:

    It is illegal to:
    • possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless
    the firearm is unloaded and enclosed within a carrying case.

    The whole law

    possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless the firearm is unloaded and enclosed within a carrying case. Exceptions: target shooting at established target ranges, target shooting on private lands by landowners and immediate family members who live with them, waterfowl hunting during open season, hunting game birds on licensed bird hunting preserves, and hunting turkeys and small game in CWD Management Zone units. Note: An established target range means an existing location that is set up for target shooting with firearms as its major purpose.

    There is no exception to open carry stated nor does it specifically state that the regulation applies only in the woods, so, anywhere in Wisconsin you posess a firearme in the woods or not; even while open carying the day before deer season, you are violating the DNR regulation as it is written.

    Don
    It also has no exception for DNR wardens or LEO's. So.....

  6. #6
    Regular Member Big Dipper's Avatar
    Join Date
    May 2009
    Location
    Illinois & Wisconsin
    Posts
    144
    Quote Originally Posted by cowboyridn View Post
    If you open carry the day before deer season you are knowingly violating the law as the law reads:

    It is illegal to:
    • possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless
    the firearm is unloaded and enclosed within a carrying case.

    The whole law

    possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless the firearm is unloaded and enclosed within a carrying case. Exceptions: target shooting at established target ranges, target shooting on private lands by landowners and immediate family members who live with them, waterfowl hunting during open season, hunting game birds on licensed bird hunting preserves, and hunting turkeys and small game in CWD Management Zone units. Note: An established target range means an existing location that is set up for target shooting with firearms as its major purpose.Don

    The text in the "published" "deer hunting regs" is a paraphrasing of what is actually in the "Administrative Code" at NR10.09(2)

    SPECIAL ONE−DAY RESTRICTION. During the 24−hour period prior to the opening date for the regular gun deer season established in s. NR 10.01 (3) (e) 1. a., b. and 5., no person may possess a gun wherein there is an open season for deer with guns specified in s. NR 10.01 (3) (e), unless the gun is unloaded and enclosed within a carrying case. Exceptions:
    (a) Target shooting at established ranges.
    (b) Hunting on licensed game farms and shooting preserves.
    (c) Hunting waterfowl during the open season.


    Then as to a "penalty" the Admin Code points back to Chapter 29 of the Statutes and the only thing I can find there that might apply is:

    29.971(4) For any violation of this chapter or any department order for which no other penalty is prescribed, by a forfeiture of not more than $100.



    Also, interesting the wording "24−hour period prior to the opening date" so from 12:01 AM on opening day forward 'till legal hunting hours the WDNR will once again "allow" us to "possess " a loaded "gun".
    Last edited by Big Dipper; 10-29-2010 at 04:40 PM.

  7. #7
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by cowboyridn View Post
    If you open carry the day before deer season you are knowingly violating the law as the law reads:

    It is illegal to:
    • possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless
    the firearm is unloaded and enclosed within a carrying case.

    The whole law

    possess any firearm from 12:00 midnight–11:59 p.m. on November 19, 2010 unless the firearm is unloaded and enclosed within a carrying case. Exceptions: target shooting at established target ranges, target shooting on private lands by landowners and immediate family members who live with them, waterfowl hunting during open season, hunting game birds on licensed bird hunting preserves, and hunting turkeys and small game in CWD Management Zone units. Note: An established target range means an existing location that is set up for target shooting with firearms as its major purpose.

    There is no exception to open carry stated nor does it specifically state that the regulation applies only in the woods, so, anywhere in Wisconsin you posess a firearme in the woods or not; even while open carying the day before deer season, you are violating the DNR regulation as it is written.
    Incorrect....
    To begin with, there is no WI Statute regarding this as there is only DNR Administrative Code. Even going according to the letter of the Code, you may Open Carry anywhere you wish so long as it is not an area where it is legal to hunt deer with a firearm. Since you may not hunt deer at Wal-Mart, you may Open Cary there. Since you may not hunt deer within any city limits with the exception of specific areas, you may Open Carry there.
    HERE is the actual Code....
    Chapter NR 10 GAME AND HUNTING
    NR 10.09 Guns, ammunition and other devices.
    (2) SPECIAL ONE−DAY RESTRICTION. During the 24−hour period
    prior to the opening date for the regular gun deer season established
    in s. NR 10.01 (3) (e) 1. a., b. and 5., no person may possess
    a gun wherein there is an open season for deer with guns specified
    in s. NR 10.01 (3) (e)
    , unless the gun is unloaded and enclosed
    within a carrying case. Exceptions:
    (a) Target shooting at established ranges.
    (b) Hunting on licensed game farms and shooting preserves.
    (c) Hunting waterfowl during the open season.
    Last edited by Interceptor_Knight; 10-29-2010 at 04:57 PM.

  8. #8
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by paul@paul-fisher.com View Post
    It also has no exception for DNR wardens or LEO's. So.....
    It is DNR Administrative Code, so it does not have to.

  9. #9
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by oak1971 View Post
    I'd like see them enforce that. I hunt on our own property and I'll be dammed if they can stop me from OC.
    There is an administrative enforcement exception for "target practice" on your own land which is reflected in the little paper "rule" book. So long as you are not wandering around in the woods, you would be fine. So long as you are willing to fight a citation in court, you would have no worries wandering around in the woods also.
    Last edited by Interceptor_Knight; 10-29-2010 at 06:08 PM.

  10. #10
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    hanks for the complete DNR Administrative Code

    Quote Originally Posted by Interceptor_Knight View Post
    Incorrect....
    To begin with, there is no WI Statute regarding this as there is only DNR Administrative Code. Even going according to the letter of the Code, you may Open Carry anywhere you wish so long as it is not an area where it is legal to hunt deer with a firearm. Since you may not hunt deer at Wal-Mart, you may Open Cary there. Since you may not hunt deer within any city limits with the exception of specific areas, you may Open Carry there.
    HERE is the actual Code....
    It's still unconstitutional giving the fact that I cannot walk in the woods OCing for self defense

    Don

  11. #11
    Guest
    Join Date
    Jun 2010
    Location
    Green Bay
    Posts
    232
    IK is wrong again. That code infringes on ones ability to legally carry for self defense. Anywhere, from the back 40 to Target. Its that simple.

  12. #12
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Sent the DNR an email

    Quote Originally Posted by Springfielddx40 View Post
    IK is wrong again. That code infringes on ones ability to legally carry for self defense. Anywhere, from the back 40 to Target. Its that simple.
    Now we will find out what the DNR's position is on this! I sent them an email, when I find out Monday I'll post the answer.

    Don
    Last edited by cowboyridn; 11-01-2010 at 02:09 PM. Reason: Add attachment

  13. #13
    Regular Member
    Join Date
    Mar 2010
    Location
    North Central Wisconsin, ,
    Posts
    768
    Quote Originally Posted by cowboyridn View Post
    Now we will find out what the DNR's position is on this! I sent them an email, when I find out Monday I'll post the answer.

    Don
    "Can I open carry a firearm for self-defense......"


    They will probably answer:

    Thank you for your concerns. You may - as long as it is unloaded and completely encased.

  14. #14
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    29.014 Rule -making for this chapter.

    29.014(1)
    (1) The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.


    29.014(2)
    (2)

    29.014(2)(b)
    (b) All of the rules promulgated under this chapter are prima facie reasonable and lawful until found to be otherwise in a final determination by a court.
    ------------------------------------------------------------------------------------------------

    Bottom line: Who is going to pay a lawyer @$100 an hour to fight a $100 fine, and therein lies the problem.
    Same problem as with 167.31.

    -------------------------------------------------------------------------------------------------

    "Our wallets rule" -Nemo
    Last edited by Captain Nemo; 10-31-2010 at 05:57 AM.

  15. #15
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by cowboyridn View Post
    It's still unconstitutional giving the fact that I cannot walk in the woods OCing for self defense
    Quote Originally Posted by Springfielddx40 View Post
    IK is wrong again. That code infringes on ones ability to legally carry for self defense. Anywhere, from the back 40 to Target. Its that simple.
    It is not clearly Unconstitutional. You may carry all you want. Only The manner of carry is regulated. This is no different than the State Park ban on Open Carry. You are not banned from carry in the forest on or off of your property.
    Since this is merely DNR Administrative Code, it may be easier to fight should you have an overly zealous warden who has no proof of you hunting and only carrying openly.

    Quote Originally Posted by phred View Post
    "Can I open carry a firearm for self-defense......"


    They will probably answer:

    Thank you for your concerns. You may - as long as it is unloaded and completely encased.
    This....
    Last edited by Interceptor_Knight; 10-31-2010 at 01:18 PM.

  16. #16
    Guest
    Join Date
    Jun 2010
    Location
    Green Bay
    Posts
    232
    You basically just agreed with us. Any manner of regulating where you can carry is unconstitutional.

  17. #17
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Quote Originally Posted by Captain Nemo View Post
    29.014 Rule -making for this chapter.

    29.014(1)
    (1) The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.


    29.014(2)
    (2)

    29.014(2)(b)
    (b) All of the rules promulgated under this chapter are prima facie reasonable and lawful until found to be otherwise in a final determination by a court.
    ------------------------------------------------------------------------------------------------

    Bottom line: Who is going to pay a lawyer @$100 an hour to fight a $100 fine, and therein lies the problem.
    Same problem as with 167.31.

    -------------------------------------------------------------------------------------------------

    "Our wallets rule" -Nemo
    I think WCI would be willing to pay an attorney $100 per hour to fight this. Now that is just my opinion, you would have to ask the board but I could see that happening.

  18. #18
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    To be honest, if I was just out for a strole in the woods and a DNR Warden tried to stop me, I would just keep walking. I have committed no crime, am not about to commit a crime and he has no reason to believe I am guilty of either.

    Keep walking and carry on! Do not Identify!

  19. #19
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Nr 10.09 (2) special one−day restriction

    Quote Originally Posted by phred View Post
    "Can I open carry a firearm for self-defense......"


    They will probably answer:

    Thank you for your concerns. You may - as long as it is unloaded and completely encased.

    It’s my understanding that anyone can challenge the constitutionality of any rules promulgated under chapter 29, and its cross reference NR 10. Therefore, you do not need to be cited for a violation to challenge the constitutionality of the chapter 29. However, if you challenge the constitutionality, you can either request an administrative review, or proceed to circuit court for a judge to decide.
    If you have been cited for a violation under this chapter, you are first required to declare, in a court of law, that the law violated is unconstitutional 29.014(3)(4)

    29.014 Rule−making for this chapter.

    (1) The department shall establish and maintain open and closed seasons for fish and game and any bag limits, size limits, rest days and conditions governing the taking of fish and game that will conserve the fish and game supply and ensure the citizens of this state continued opportunities for good fishing, hunting and trapping.

    (2) (b) All of the rules promulgated under this chapter are prima facie reasonable and lawful until found to be otherwise in a final determination by a court.

    (c) Any reference to this chapter includes any rules promulgated under this chapter and any reference to any provision of this chapter includes any rules promulgated under that provision.

    (3) Any rule of the department is subject to review in the manner provided in ch. 227, except that if the rule affects only the county in which the appellant resides, the appeal shall be to the circuit court of that county.

    (4) No person may challenge the validity of a rule promulgated under this chapter in any prosecution of that person for a violation of this chapter or rules promulgated under this chapter unless the person has previously brought a separate action under s. 227.40 seeking a declaratory judgment on the validity of the rule.


    Based upon the rules above, I can challenge the constitutionality of NR 10.09(2) simply be filing a declaratory action in Dane County Circuit Court, without having to be sited for a violation.

    I sent an email; fully expecting them to write back stating that I cannot open carry during the 24 hour period prior to deer season, which I can use as supporting documentation of its prohibitions.


    NR 10.09 (2) SPECIAL ONE−DAY RESTRICTION. During the 24−hour period prior to the opening date for the regular gun deer season established in s. NR 10.01 (3) (e) 1. a., b. and 5., no person may possess a gun wherein there is an open season for deer with guns specified in s. NR 10.01 (3) (e), unless the gun is unloaded and enclosed within a carrying case. Exceptions:
    (a) Target shooting at established ranges.

    (b) Hunting on licensed game farms and shooting preserves.
    (c) Hunting waterfowl during the open season.
    (3) BOWS AND ARROWS. No person may:

    I’m currently waiting on a reply from Mountain States Legal Foundation and the ACLU out of Madison to see if either one will take my complaint declaring NR § 45.09(1) and Wisconsin State Statute § 29.089(2) unconstitutional. Now, I can add to the suit declaring NR 10.09 (2) unconstitutional as well.



    Don
    Last edited by cowboyridn; 11-02-2010 at 04:31 PM. Reason: attachment

  20. #20
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Declaratory judgment proceedings

    227.40 Declaratory judgment proceedings.

    227.40(1)
    (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant. The summons in such action shall be served as provided in s. 801.11 (3) and by delivering a copy to such officer or to the secretary or clerk of the agency where composed of more than one person or to any member of such agency. The court shall render a declaratory judgment in such action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.

    227.40(2)
    (2) The validity of a rule may be determined in any of the following judicial proceedings when material therein:

    227.40(2)(a)
    (a) Any civil proceeding by the state or any officer or agency thereof to enforce a statute or to recover thereunder, provided such proceeding is not based upon a matter as to which the opposing party is accorded an administrative review or a judicial review by other provisions of the statutes and such opposing party has failed to exercise such right to review so accorded;

    227.40(2)(b)
    (b) Criminal prosecutions;

    227.40(2)(c)
    (c) Proceedings or prosecutions for violations of county or municipal ordinances;

    227.40(2)(d)
    (d) Habeas corpus proceedings relating to criminal prosecution;

    227.40(2)(e)
    (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and orders of administrative agencies if the validity of the rule involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.

    227.40(2)(f)
    (f) Proceedings under s. 227.114 (6m).

    227.40(3)
    (3) In any judicial proceeding other than one set out above, in which the invalidity of a rule is material to the cause of action or any defense thereto, the assertion of such invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such rule in that proceeding. The party so asserting the invalidity of such rule shall, within 30 days after the service of the pleading in which the party sets forth such invalidity, apply to the court in which such proceedings are had for an order suspending the trial of said proceeding until after a determination of the validity of said rule in an action for declaratory judgment under sub. (1) hereof.

    227.40(3)(a)
    (a) Upon the hearing of such application if the court is satisfied that the validity of such rule is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such rule. If the court shall find that the asserted invalidity of a rule is not material to the case, an order shall be entered denying the application for stay.

    227.40(3)(b)
    (b) Upon the entry of a final order in said declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule is asserted.

    227.40(3)(c)
    (c) Failure to set forth invalidity of a rule in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such order of the court or to prosecute such declaratory judgment action without undue delay shall preclude such party from asserting or maintaining such rule is invalid.

    227.40(4)(a)
    (a) In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.

    227.40(4)(b)
    (b) Notwithstanding s. 227.54, in any proceeding under this section for judicial review of a rule, a court may not restrain, enjoin or suspend enforcement of the rule during the course of the proceeding on the basis of the alleged failure of the agency promulgating the rule to comply with s. 227.114.

    227.40(4)(c)
    (c) Notwithstanding par. (a), if a court finds that an agency did not adequately comply with s. 227.114, the court may not declare the rule invalid on that basis but shall order the agency to comply with that section and to propose any amendments to the rule that are necessary within a time specified by the court. Unless the legislature acts under s. 227.26 (2) to suspend the rule, the rule remains in effect while the agency complies with the order.

    227.40(5)
    (5) The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.


    227.40 - ANNOT.
    History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 29, 449; 1981 c. 278 s. 6; 1983 a. 90; 1983 a. 191 s. 6; 1985 a. 182 ss. 26, 55 (1), 57; Stats. 1985 s. 227.40; 1987 a. 403 s. 256; 1989 a. 31; 1991 a. 316; 1995 a. 27; 1999 a. 82; 2003 a. 145; 2005 a. 249.


    227.40 - ANNOT.
    The plaintiff could not bring a declaratory judgment action under sub. (1) since it could contest the validity of a rule in an action brought against the plaintiff under sub. (2). Phillips Plastics Corp. v. DNR, 98 Wis. 2d 524, 297 N.W.2d 69 (Ct. App. 1980).


    227.40 - ANNOT.
    Pleading requirements for challenging administrative rules are established. The record for judicial review and the scope of judicial review are discussed. Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368, 401 N.W.2d 805 (1987).


    227.40 - ANNOT.
    A failure to comply with this section prevented the trial court from acquiring jurisdiction. Harris v. Reivitz, 142 Wis. 2d 82, 417 N.W.2d 50 (Ct. App. 1987).


    227.40 - ANNOT.
    Under sub. (5), the plaintiff must serve JCRAR within 60 days of filing, pursuant to s. 893.02. Richards v. Young, 150 Wis. 2d 549, 441 N.W.2d 742 (1989).


    227.40 - ANNOT.
    In a conflict between a statute and a rule, the statute controls. Debeck v. DNR, 172 Wis. 2d 382, 493 N.W.2d 234 (Ct. App. 1992).


    227.40 - ANNOT.
    This section encompasses policies or other statements, standards, or orders that meet the definition of a rule under s. 227.01 (13) but have not been promulgated as rules under s. 227.10. Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, 247 Wis. 2d 589, 634 N.W.2d 593, 00-3162.


    227.40 - ANNOT.
    The trial court erred by denying a motion to change venue to Dane County when the motion asserted that a department of corrections system was a rule, although it was never promulgated as a rule, and therefore, the "rule" was invalid. Johnson v. Berge, 2003 WI App 51, 260 Wis. 2d 758, 659 N.W.2d 418, 02-0911.

    227.40 - ANNOT.
    Although administrative agencies do not have the power to declare statutes unconstitutional, and the lack of authority has been a basis for not applying the exhaustion exhaustion of administrative remedies doctrine, if the agency has the authority to provide the relief requested without invalidating the rule, a constitutional basis for a claim does not in itself support an exception to the rule. Metz v. Veterinary Examining Board, 2007 WI App 220, 305 Wis. 2d 788, 741 N.W.2d 244, 06-1611.

    227.40 - ANNOT.
    How to review an administrative rule. Levine. WBB Oct. 1983.

    227.40 - ANNOT.
    The standard of review of administrative rules in Wisconsin. Zabrowski. 1982 WLR 691.

  21. #21
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Incidently, just what day is the day before gun deer hunting? I mean there was a youth hunt in October and then a herd control hunt in October and then the regular season in November.
    With that in mind, why is it illegal to possess a firearm on November 19th (The day before the regular season) but it is not illegal to carry a firearm on the day before the youth hunt or the day before the herd control hunt?
    It is a meaningless, pointless law and should be challenged at every opportunity by everyone.
    Like I said in my previous post keep walking and do not identify.

  22. #22
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    Not intirely correct I_K. The following paragraph is from State v Hamdan.

    ¶71. In circumstances where the State's interest in restricting the right to keep and bear arms is minimal and the private interest in exercising the right is substantial, an individual needs a way to exercise the right without violating the law. We hold, in these circumstances, that regulations limiting a constitutional right to keep and bear arms must leave some realistic alternative means to exercise the right.

    The Administrative Code is unconstitutional becasue it does not allow an alternative means by which to exercise the constitutional right given by Art. I sec. 25. The State does not allow concealed carry under any circumstance (ref. para 48 of Hamdan) and the administrative code does not allow open carry of firearms during the 24 hour period preceding the opening of the gun deer season. During that 24 hour period the State has evicerated our right to keep and bear arms. Something the WSC says the State can not do.

    -----------------------------------------------------------------------------------------------------------
    ¶40. The nature of this limitation is well established. Faced with similar challenges, other states applying a reasonableness standard in the context of regulating firearms have recognized that "[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms." State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986) (emphasis added).18 Some states have employed language less demanding than "destruction," assuring that "regulations or restrictions [on a constitutional right to bear arms for defensive purposes] do not frustrate the guarantees of the constitutional provision." City of Princeton v. Buckner, 377 S.E.2d 139, 145 (W. Va. 1988) (emphasis added);19 see also State v. Kessler, 614 P.2d 94, 99 (Or. 1980) (stating that regulations restricting the possession or manner of carrying personal weapons are valid "if the aim of public safety does not frustrate the guarantees of the state constitution"); State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983) (holding that a limitation on the right to bear arms is permissible when the means chosen to protect the public "do[es] not unreasonably interfere with the right"). Case law reveals that while the right to bear arms for lawful purposes is not an absolute, neither is the State's police power when it eviscerates this constitutionally protected right.

    ¶41. Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25. The State must be especially vigilant in circumstances where a person's need to exercise the right is the most pronounced. If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained.
    -------------------------------------------------------------------------------------------------------------------
    para 20 below describes the elements that the State must prove to convict a person of carrying a concealed weapon.
    -------------------------------------------------------------------------------------------------------------------
    ¶20. To convict a person of carrying a concealed weapon in violation of Wis.Stat.§941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v. Dundon, 226 Wis.2d654, 661, 594 N.W.2d780 (1999) (citing State v. Asfoor, 75 Wis.2d411, 433-34, 249 N.W.2d529 (1977)). Second, the State must show that the defendant was aware of the presence of the weapon. Id. (citing Asfoor, 75 Wis.2dat 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously litigated.
    ------------------------------------------------------------------------------------------------------
    The Administative code fails constitutional muster in that it doen't allow any manner of carry of firearms, open or concealed during the 24 hours preceding the deer season. In fact it forces a person to carry their firearm concealed which is contrary to para 20 above. In fact by requiring the firearm unloaded also makes it ineffective for security and defense.

    My opinions

  23. #23
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Thanks Nemo.

  24. #24
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Well written

    Quote Originally Posted by Captain Nemo View Post
    Not intirely correct I_K. The following paragraph is from State v Hamdan.

    ¶71. In circumstances where the State's interest in restricting the right to keep and bear arms is minimal and the private interest in exercising the right is substantial, an individual needs a way to exercise the right without violating the law. We hold, in these circumstances, that regulations limiting a constitutional right to keep and bear arms must leave some realistic alternative means to exercise the right.

    The Administrative Code is unconstitutional becasue it does not allow an alternative means by which to exercise the constitutional right given by Art. I sec. 25. The State does not allow concealed carry under any circumstance (ref. para 48 of Hamdan) and the administrative code does not allow open carry of firearms during the 24 hour period preceding the opening of the gun deer season. During that 24 hour period the State has evicerated our right to keep and bear arms. Something the WSC says the State can not do.

    -----------------------------------------------------------------------------------------------------------
    ¶40. The nature of this limitation is well established. Faced with similar challenges, other states applying a reasonableness standard in the context of regulating firearms have recognized that "[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms." State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986) (emphasis added).18 Some states have employed language less demanding than "destruction," assuring that "regulations or restrictions [on a constitutional right to bear arms for defensive purposes] do not frustrate the guarantees of the constitutional provision." City of Princeton v. Buckner, 377 S.E.2d 139, 145 (W. Va. 1988) (emphasis added);19 see also State v. Kessler, 614 P.2d 94, 99 (Or. 1980) (stating that regulations restricting the possession or manner of carrying personal weapons are valid "if the aim of public safety does not frustrate the guarantees of the state constitution"); State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983) (holding that a limitation on the right to bear arms is permissible when the means chosen to protect the public "do[es] not unreasonably interfere with the right"). Case law reveals that while the right to bear arms for lawful purposes is not an absolute, neither is the State's police power when it eviscerates this constitutionally protected right.

    ¶41. Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25. The State must be especially vigilant in circumstances where a person's need to exercise the right is the most pronounced. If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained.
    -------------------------------------------------------------------------------------------------------------------
    para 20 below describes the elements that the State must prove to convict a person of carrying a concealed weapon.
    -------------------------------------------------------------------------------------------------------------------
    ¶20. To convict a person of carrying a concealed weapon in violation of Wis.Stat.§941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v. Dundon, 226 Wis.2d654, 661, 594 N.W.2d780 (1999) (citing State v. Asfoor, 75 Wis.2d411, 433-34, 249 N.W.2d529 (1977)). Second, the State must show that the defendant was aware of the presence of the weapon. Id. (citing Asfoor, 75 Wis.2dat 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously litigated.
    ------------------------------------------------------------------------------------------------------
    The Administative code fails constitutional muster in that it doen't allow any manner of carry of firearms, open or concealed during the 24 hours preceding the deer season. In fact it forces a person to carry their firearm concealed which is contrary to para 20 above. In fact by requiring the firearm unloaded also makes it ineffective for security and defense.

    My opinions

    Good job

  25. #25
    Regular Member johnny amish's Avatar
    Join Date
    Mar 2010
    Location
    High altitude of Vernon County, ,
    Posts
    1,025
    Quote Originally Posted by J.Gleason View Post

    Keep walking and carry on! Do not Identify!
    +1
    "To sin by silence, when we should protest makes cowards out of men."
    Ella Wheeler Cox


    We must contact our lawmakers today, tomorrow and the next day to remind them of Constitutional Carry.
    Laws are not written because of the actions of many, they are wrtiten because of the inactions of many.

Page 1 of 3 123 LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •