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

J.Gleason

Banned
Joined
May 1, 2009
Messages
3,481
Location
Chilton, Wisconsin, USA
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.
 

Captain Nemo

Regular Member
Joined
Apr 11, 2010
Messages
1,029
Location
Somewhere, Wisconsin, USA
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.

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¶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.
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para 20 below describes the elements that the State must prove to convict a person of carrying a concealed weapon.
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¶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.
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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
 

LOERetired

New member
Joined
Mar 15, 2010
Messages
434
Location
, ,
Well written

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
 

LOERetired

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Mar 15, 2010
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Reply from DNR

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

I received a reply from the DNR, he stated that NR 10.09 remains a valid state law where open carry is not an option. With this email denying my right to open carry 24 hours before deer season in the woods for self defense, he is denying my constitutional right to open carry.

I will add NR 10.09 to the suit alleging that NR 10.09 is unconstitutional on its face. Having the email essentially eliminates the need to physically going in the woods while open carrying and receiving a citation for doing so.

Don
 
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LOERetired

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DNR law suit

I was contacted by Attorney Jim Manley with Mountain States Legal Foundation and they are interested in perusing the lawsuit against the DNR The law suit is about being able to carry in a state Park as I’ve stated here and perhaps they will also consider pursuing the prohibition against having a firearm in the woods 24 hours prior to the gun deer season. You can find a copy of the law suit on here on wisconsincarry.org blog. I’ll post the law suit once they have filed it.

Don Marso
 

hardballer

Regular Member
Joined
Jul 16, 2009
Messages
925
Location
West Coast of Wisconsin
I would like to see the control of the DNR wrested from the hands of a disconnected board and put into the hands of the people. Administrative code as law... Bleh.
 

LOERetired

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, ,
Need members to join DNR lawsuit

I was contacted by Attorney Jim Manley with Mountain States Legal Foundation and they are interested in perusing the lawsuit against the DNR The law suit is about being able to carry in a state Park as I’ve stated here and perhaps they will also consider pursuing the prohibition against having a firearm in the woods 24 hours prior to the gun deer season. You can find a copy of the law suit on here on wisconsincarry.org blog. I need members who want to join the law suit, pm me if interested and I will give you the phone number to attorney Manley, he is looking to add 3-5 people to the suit.

Don Marso
 

Beretta-m9

Regular Member
Joined
Nov 7, 2010
Messages
110
Location
usa
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
I wasn't "knowingly" going to do it until you posted this :p
 

Big Dipper

Regular Member
Joined
May 16, 2009
Messages
144
Location
Illinois & Wisconsin
Whether members have violated and not been "caught" or have not violated, we may never know.

But you could (try to) cause a ruckus by calling in a complaint for every LEO or warden that you see today that is violating that reg.

None of the stated exceptions allow them to possess anything but an unloaded, encased firearm either.

"Exceptions:
(a) Target shooting at established ranges.
(b) Hunting on licensed game farms and shooting preserves.
(c) Hunting waterfowl during the open season."

:)
 
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Interceptor_Knight

Regular Member
Joined
May 18, 2007
Messages
2,851
Location
Green Bay, Wisconsin, USA
Whether members have violated and not been "caught" or have not violated, we may never know.

But you could (try to) cause a ruckus by calling in a complaint for every LEO or warden that you see today that is violating that reg.

None of the stated exceptions allow them to possess anything but an unloaded, encased firearm either.

"Exceptions:
(a) Target shooting at established ranges.
(b) Hunting on licensed game farms and shooting preserves.
(c) Hunting waterfowl during the open season."

:)
Unless you see them in the "woods" or "field" where it is legal to shoot a deer, they are not violating the letter of the code. Anyone who is not otherwise prohibited from doing so may carry in their vehicle on the road, highway or in town, etc as it is not legal to hunt there. Since it is DNR Administrative Code and not a State Statute, the DNR does not need to list exceptions as their Administrative enforcement policy is to not cite Wardens or other LEO while on duty even in "hunting" areas.
 

Cobbersmom

Regular Member
Joined
Nov 19, 2008
Messages
179
Location
Minocqua, Wisconsin, ,
Actually had an issue today

This afternoon our fire department, among others, were paged out to search for a 14 yr. old boy lost in the woods. The trails he probably took were on state land. Since I've hunted the area, I got permission from the chief to take a couple more girls (also FD members) to a gated trail where the search atv's weren't able to access. We headed out on foot and I actually forgot about my gun. I wanted the walkie talkies and batteries plus a few other things to bring along and acting quickly, never though about the gun until later. Shortly after we got on the trails I remembered about the gun, wished I had it because I would have carried it if I hadn't forgot, not caring in the least about the DNR's issue for this day. The girls and I split up on two different trails when I had come across some moderately fresh wolf poop.
It wasn't that I was expecting we would have any problems needing a gun, but not having it kept me looking over my shoulder and it pissed me off that should a problem arise, the DNR wants us unable to defend ourselves.
Good news, the kid was found quickly.
 

BROKENSPROKET

Regular Member
Joined
Jan 5, 2010
Messages
2,199
Location
Trempealeau County
I chased a farm cat that has been hanging around and ******* on the porch into the woods and shot it about an hour ago. NO warden has showed up yet.
 
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