Page 1 of 3 123 LastLast
Results 1 to 25 of 54

Thread: No Legislation Action until until the high court has a chance to hear the Case.

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

    No Legislation Action until until the high court has a chance to hear the Case.

    We have a chance at having Wisconsin Statute .941.23 declared unconstitutional if the court case is appealed. If it is appealed to a higher court, and the prosecution looses the appeal, than the repercussions are state wide. As it is right now, the unconstitutionality of 941.23 are only at the county level.

    Right now, we do not want the new legislators to introduce a bill for concealed carry; we want the court case to be appealed to a higher court. If the appeals court or even the State Supreme Court hears the case and they agree with the lower court, and decide that the Wisconsin Statute 941.23 is unconstitutional, we all win, constitutional concealed carry without a licensing requirement will be a reality, but, If the legislators introduces a bill before this case is heard before a higher court and decided on than the legislators could pass a bill restricting constitutional carry, which we don’t want. We don’t want a licensing or training requirement to carry concealed.

    If you haven’t read the court case here it is. The argument is plausible, in that due to the continued harassment of Law Enforcement, open carry is not a viable option for all citizens. Because of the harassment, the judge concluded that the citizens of Wisconsin cannot effectively exercise their right to carry for self defense under the Wisconsin Constitution.

    Let this court case make its way through the courts, the argument presented by the judge in this case is compelling. The Wisconsin Statute 941.23 is overly broad, and too restrictive. Citizens under this statute cannot reasonably and without harassment, protect and defend themselves as the Wisconsin Constitution was intended for. I don’t know where the court case is as far as being appealed by the prosecutor, but, we should wait and see what becomes of the case before we begin writing our representatives asking for a bill to carry concealed. We do that, and we are shooting ourselves in the foot (pun intended) and putting the legislators in the driver’s seat, whereas right now we, as citizens with this court decision, are in the drivers seat.


    STATE OF WISCONSIN CIRCUIT COURT CLARK COUNTY

    STATE OF WISCONSIN
    Plaintiff/Petitioner


    vs.

    JOSHUA D. SCHULTZ Case No. 10-CM-138


    DECISION GRANTING MOTION TO DISMISS


    Defendant/Respondent

    The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats. Defendant challenges the statute as unconstitutional “on its face, and because the statute is overbroad, abridges his privileges or immunities as a United States citizen, and violates his due process rights as guaranteed by the Second and Fourteenth Amendments.” Def. Brief, p. 2.

    Analysis of this issue starts with the United States Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago No. 08-1521 (U.S. June 28, 2010). Unfortunately, neither of these cases stated with certainty the level of scrutiny that should be applied to laws that infringe upon a citizen’s Second Amendment rights. This court concludes that a strict scrutiny test should be applied in evaluating the statute in question here, section 941.23. The court reaches this conclusion because sec. 941.23 absolutely prohibits the carrying of concealed weapons for all persons in Wisconsin, except “peace officers.” The statute flatly prohibits a certain behavior/activity. It thus takes away what this court understands Heller and McDonald to deem an individual and fundamental right. Strict scrutiny arises when a fundamental constitutional right, as those listed in the Bill of Rights, is infringed, and that Right has been deemed to apply to the States by virtue of the Fourteenth Amendment. United States v. Carolene, 304 U.S. 144 (1938). To pass strict scrutiny, sec. 941.23 must:

    1. be justified by a compelling governmental interest;
    2. be narrowly tailored to achieve that interest; and
    3. be the least restrictive means for achieving that interest.

    The apparent government interest in prohibiting the carrying of concealed weapons is the State’s “police power to protect the health, safety, and welfare of its citizens.” See State v. Hamdan, 264 Wis. 2d 433, 463 (2003). Promotion of health, safety and welfare of citizens is an appropriate use of the police power. However, the court must proceed to answer the remaining questions to determine if the power is appropriately used here.
    Is sec. 941.23 narrowly tailored to achieve the State’s interest? The answer is clearly “no.” As stated in Hamdan, “the statute prohibits any person, except a peace officer, from carrying a concealed weapon, regardless of the circumstances, including pursuit of one of the lawful purposes enumerated in Article I, Section 25 [of the Wisconsin Constitution].” Id. at p. 465. Hamdan went on to state that “we have described Wisconsin’s exceptionally restrictive scheme to show how it heightens the conflict between [sec. 941.23] and the rights in Article I, Section 25 [of the Wisconsin Constitution]” (Id., at p. 470, emphasis added) and, this court would add, the conflict with the fundamental right set forth in the Second Amendment.

    Thus, the Wisconsin Supreme Court has called sec. 941.23 an “exceptionally restrictive scheme.” Such a scheme cannot in any sense be considered as “narrowly tailored.” Justice N. Patrick Crooks in his concurrence/dissent to Hamdan stated:

    “The majority in this case improperly reads exceptions into Wis. Stat. § 941.23 in order to hold that it is constitutional. Such exceptions to the statute should be not be made by this court, but by the legislature. Looking at the statute itself, I conclude that Wis. Stat. § 941.23 has become unconstitutional with the passage of Article I, Section 25 of the Wisconsin Constitution…. If the statute does not conform to the Wisconsin Constitution, as amended, then the statute is unconstitutional.”

    Hamdan, concurrence, at p. 494. Justice Crooks did not use the phrase, but he is in essence saying that courts should not engage in judicial activism—the philosophy of judicial decision making whereby judges’ decisions are not based on the law as it is written, whether it be a regulation, statute or the Constitution itself but instead are based on personal views, political views or perceptions of desired public policy. Judicial activism substitutes the view of the courts for the view of the people as expressed through their elected legislature. “Policy decisions affecting the statute’s constitutionality should be made in typical legislative fashion.” Id., at p. 496.

    When this court examines this case in view of Hamdan as affected by Heller and McDonald, Justice Crooks’ analysis prevails—leading to the conclusion that sec. 941.23 in not narrowly tailored and therefore is unconstitutional. “A statute which under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional.” Heller, p. 56, n. 27. “The breadth of [sec. 941.23] is incompatible with the broad constitutional right to bear arms. Its prohibition extends to anyone at any time and, therefore, improperly an unnecessarily impinges on a person’s right to bear arms ‘for security, defense, hunting, recreation or any other lawful purpose.’ … [The statute] logically extends to such a wide variety of scenarios that it leaves no ‘open ample alternative channels by which the citizen may exercise the right at issue.’” Hamdan, concurrence,pp. 495-496.

    Heller and McDonald, recognize the fundamental and personal right written, in plain English, in the Second Amendment. These two decisions reinforce the need for the sec. 941.23 to be narrowly tailored and, in addition, the least restrictive means of the State achieving its goal. The statute is neither. As written, sec. 941.23:
    1. Prohibits a gun or knife owner from storing his weapons out of plain sight, such as in a gun cabinet, closet or drawer in his own home.

    2. Prohibits a store owner from storing his weapons out of plain sight at his place of business, a store in a “rough” neighborhood.

    3. Prohibits the logger, hiker, cross country skier and other outdoors person from keeping his weapon out of plain sight, but available, in the event of a wolf, bear or other wild animal attack.

    4. It prohibits judges, prosecutors, defense attorneys, court staff and child support agency workers (and many others) that have received legitimate death threats from carrying a concealed weapon for personal safety.
    The court could continue this list ad infinitum. The point of the list is that it shows the over breadth and over reach of sec. 941.23. The statute applies a leaden blanket to when silk would suffice. Persons on the list, and many others, are faced with a Hobson’s choice—go unarmed (thus not able to act in self defense), violate the law (and risk jail/fines) or (as some would argue) carry openly. However, the argument that one could carry or display the weapon openly (holding it in the open, in a visible holster, or on the wall in plain sight) is not a realistic alternative. Even the Hamdan majority said:

    “Such practices would alert criminals to the presence of the weapon and frighten friends and customers. Likewise, requiring the gun owner to leave a handgun in plain view in his or her store so that he or she avoids a CCW charge fails the litmus test of common sense. We do not think it is necessary to spell out the dangers created by making firearms more accessible to children, to assailants, to strangers, and to guests.

    In fact, leaving a firearm in the open could expose a gun owner to other liability, both criminal and civil. See Wis. Stat. §§ 948.55 (prohibiting the leaving of a loaded firearm within the reach or easy access of a child) and 947.01 (prohibiting disorderly conduct).

    There is no dispute that most storeowners have the right to possess a firearm. As a practical matter, the storeowner who keeps a firearm for security must have the gun within easy reach. Requiring a storeowner to openly display weapons as the only available means of exercising the right to keep and bear arms for security is impractical, unsettling, and possibly dangerous. If the State prosecutes a storeowner for having a concealed weapon within easy reach, it is strongly discouraging the use of firearms for security and is practically nullifying the right to do so. Such a prosecution is very likely to impair the constitutional right to bear arms for security.”

    Hamdan, at pp. 481-482. Thus, the Hamdan majority recognized that open carry or open display was not and is not a feasible alternative to concealed carry. Open carry or display could result in the gun owner violating other laws regarding access of minors to guns or result in overzealous police and/or prosecutors charging disorderly conduct under sec. 947.01, Wis. Stats., for (what this court considers) the lawful open carrying and display of handguns. The argument that this will not happen with reasonable prosecutors has already been proven wrong. See the Wisconsin State Journal article, at the following citation: http://host.madison.com/wsj/news/loc...cc4c002e0.html This article details how five men were issued disorderly conduct citations for eating at a Culver’s restaurant while having firearms in holsters in plain view. The Hamdan court, apparently, was prophetic on this issue.

    The Hamdan decision also shows that an absolute ban on concealed carry is not least restrictive. At the time Hamdan was written, Wisconsin was “one of only six states that generally disallow any class of ordinary citizens to lawfully carry concealed weapons.” As of now, Wisconsin is one of only two States that do not permit the carrying of concealed weapons under any circumstances. Halbrook, Firearms Law Deskbook, 2009-2010 Edition, Appendix A. Thus when Hamdan was written there were 44 States, and now there are 48 States, that have an alternative that is less restrictive than Wisconsin’s absolute prohibition. Despite the varying concealed carry laws allowing “ordinary” citizens to carry concealed weapons in 48 States, there have been no shootouts in town squares, no mass vigilante shootings or other violent outbreaks attributable to allowed concealed carry. There is a strong argument that guns, and concealed carry of them, makes citizens safer. See John Lott, More Guns, Less Crime, Third Edition, 2010, The University of Chicago Press.

    In 48 States, less restrictive possession, conceal or permit statutes allow citizens to carry concealed weapons. Many of those statutes were analyzed in Hamdan itself. See Hamdan, p. 466, n. 22. This court will not repeat that analysis, other than to say that it clearly demonstrates the feasibility and functionality of less restrictive alternatives.
    Thus, while the State has an interest in public safety, sec. 941.23 is unconstitutional because it is not narrowly tailored to achieve the State’s interest nor is it the least restrictive means for achieving that interest.

    The parties have not addressed the issue of whether under Hamdan, defendant meets the Hamdan judicial exception to the sec. 941.23 concealed carry prohibition for weapons kept at home or place of business. The complaint alleges that defendant was in a private apartment when a deputy opened the door and defendant immediately said “Hey relax, I got a knife here, all I want to do is smoke a cigarette.” The deputy then asked where the knife was and defendant pulled up his shirt and showed it to the deputy. As the parties addressed only the broader constitutional issue, so has this court.

    In addition, as noted above, this court agrees with Justice Clarence Thomas’s McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged by any State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment.

    In sum, sec. 941.23 is unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution.

    The clerk’s office is directed to prepare an order of dismissal based on this decision.

    The order of dismissal is considered by the court to be a final order for purposes of any appeal.
    Dated: October 14, 2010

    By the Court:
    Last edited by cowboyridn; 11-04-2010 at 10:22 PM. Reason: Word Misspelled

  2. #2
    Regular Member
    Join Date
    Aug 2008
    Location
    , ,
    Posts
    177
    They are not going to appeal it or they would have already........

  3. #3
    Founder's Club Member springfield 1911's Avatar
    Join Date
    Jun 2008
    Location
    Racine, Wisconsin, USA
    Posts
    484
    Quote Originally Posted by SprayAndPray View Post
    They are not going to appeal it or they would have already........
    Even more proof , thus 941.23 would be found unconstitutional by the W.S.S.C. That if they appeal they don't believe they will win.

  4. #4
    Regular Member
    Join Date
    Jun 2006
    Location
    , ,
    Posts
    1,169

    So essentially

    This case is worthless (except perhaps in one tiny corner of Wisconsin). No need for the legislature to wait for judicial action because there ain't going to be any. At least that's the way I read it.

  5. #5
    Centurion
    Join Date
    Jun 2008
    Location
    Pleasant Grove, Utah, USA
    Posts
    3,828
    Quote Originally Posted by springfield 1911 View Post
    Even more proof , thus 941.23 would be found unconstitutional by the W.S.S.C. That if they appeal they don't believe they will win.
    But IF THE W.S.S.C. never hears the case THEY WON'T EVER make this decision and the current law will remain on the books!

    This outcome is not one that I would desire and I DON'T EVEN LIVE IN WISCONSIN!

  6. #6
    Wisconsin Carry, Inc. Wisconsin Carry, Inc. - Chairman's Avatar
    Join Date
    Jan 2010
    Location
    , ,
    Posts
    1,197
    Right now, we do not want the new legislators to introduce a bill for concealed carry; we want the court case to be appealed to a higher court. If the appeals court or even the State Supreme Court hears the case and they agree with the lower court, and decide that the Wisconsin Statute 941.23 is unconstitutional, we all win, constitutional concealed carry without a licensing requirement will be a reality, but, If the legislators introduces a bill before this case is heard before a higher court and decided on than the legislators could pass a bill restricting constitutional carry, which we don’t want. We don’t want a licensing or training requirement to carry concealed.
    Sitting back and waiting for this case to be appealed (which I don't think it will be) is not a viable strategy.

    The Wisconsin Supreme Court's solution to the unconstitutionality of the blanket ban that 941.23 imposes WAS A PERMIT SYSTEM.

    EVEN IF the Clark County case is appealed to the supreme court and upheld, that would NOT prevent the legislature from enacting a permit system which the Wisconsin Supreme Court would almost certainly find CONSTITUTIONAL.

    941.23 has only been asserted unconstitutional because its a blanket ban.

    The court does NOT share our belief that a permit is unconstitutional. They only believe a blanket ban is unconstitutional.

    Only legislation (a repeal of 941.23) will secure your right to carry without a permit. And trust me, we will STILL have to be vigilant year after year for a politician to introduce a permit system in the name of "safety" suggesting it would reduce crime.

    The Wisconsin Supreme Court will NOT find a permit system unconstitutional. The Wisconsin Supreme Court offers us NO protection from a permit system.
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

  7. #7
    Regular Member
    Join Date
    Mar 2010
    Location
    Under your bed
    Posts
    542
    The problem is we can't wait! The majority of people who want cc permits just want something passed, they don't care about open carry and are happy to pay for a permit and take some classes. The problem is they out number us and what they will be happy with is easy for the legislators to pass, not to mention all the instructors and some gun organizations that rely on selling "training" mandated by a permit system as a business model.

    As has been said before, we are a day late and a dollar short on the open carry movement. If we had a few more years of no chance of cc we could have worked out a lot of the bugs and chipped away at the system, just look at what you guys have accomplished in such a short time!

    The concealed carry bill or repeal bill will be pushed pretty fast I think. We have to get there first with our input and push for a simple repeal. I believe we can do it, the political landscape is as good as it ever will be to push for a smaller government - no cost - Constitution loving- apple pie; simple repeal.

    I know a lot of people don't think we can repeal 941.23, but really what have we got to lose?

  8. #8
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    941.23 is unconstitutional

    Quote Originally Posted by Wisconsin Carry, Inc. - Chairman View Post
    Sitting back and waiting for this case to be appealed (which I don't think it will be) is not a viable strategy.

    The Wisconsin Supreme Court's solution to the unconstitutionality of the blanket ban that 941.23 imposes WAS A PERMIT SYSTEM.

    EVEN IF the Clark County case is appealed to the supreme court and upheld, that would NOT prevent the legislature from enacting a permit system which the Wisconsin Supreme Court would almost certainly find CONSTITUTIONAL.

    941.23 has only been asserted unconstitutional because its a blanket ban.

    The court does NOT share our belief that a permit is unconstitutional. They only believe a blanket ban is unconstitutional.

    Only legislation (a repeal of 941.23) will secure your right to carry without a permit. And trust me, we will STILL have to be vigilant year after year for a politician to introduce a permit system in the name of "safety" suggesting it would reduce crime.

    The Wisconsin Supreme Court will NOT find a permit system unconstitutional. The Wisconsin Supreme Court offers us NO protection from a permit system.
    I was under the assumption that WCI position was that they didn’t want the legislature to act on any bill until the case was appealed and thought so because, when I attended the open carry tea party in Hudson Wisconsin, Hubert as V.P. of WCI gave a speech and part of his message within his speech was about not requesting legislative action for concealed carry until the current case was appealed.

    Being unaware of the time limits for the prosecution to appeal had passed, I was still under the assumption WCI’s position was to wait and see when I wrote in the blog. Based on your response, though, can I assume the WCI current position is to repeal the unconstitutional statute?

    If so, then I agree with the rest of the members and WCI that we should be writing strong demanding letters to the newly elected officials specifically requesting the unconstitutional statute be repealed. The letter should be specific, incorporating a strong argument for the appeal of Wisconsin Statute 941.23 and include citations to back up the argument.


    My letter to the Governor


    Governor Scott Walker
    P.O. Box 7863
    Madison, WI 53707

    November 5, 2010

    Governor,


    My letter today is about Wisconsin Statute 941.23 which has recently been found unconstitutional on its face by a Clark County Circuit Judge in "State v. Joshua D. Schultz, Clark County Case No. 10-CM-138" as overly broad in violation of Article I, Section 25 of the Wisconsin Constitution and the Second and Fourteenth Amendments of the United States Constitution.

    The government’s interest in prohibiting the carrying of concealed weapons is the State’s “police power to protect the health, safety, and welfare of its citizens.” See State v. Hamdan, 264 Wis. 2d 433, 463 (2003)”. Is the Promotion of health, safety, and welfare, of citizens an appropriate use of the police power? As the Governor, you must proceed to answer the question and determine if the power is appropriately used here.

    Is sec. 941.23 narrowly tailored to achieve the State’s interest? The answer as Governor should clearly be “no.” In Hamdan, “the statute prohibits any person, except a peace officer, from carrying a concealed weapon, regardless of the circumstances, including pursuit of one of the lawful purposes enumerated in Article I, Section 25 of the Wisconsin Constitution.

    In reading Hamdan the court went on to state that “we have described Wisconsin’s exceptionally restrictive scheme to show how it heightens the conflict between sec. 941.23 and the rights in Article I, Section 25 of the Wisconsin Constitution adding to the conflict is the fundamental rights set forth in the Second Amendment.
    Wisconsin statute 941.23 prohibits judges, prosecutors, defense attorneys, court staff and child support agency workers, and many more citizens that have received legitimate death threats from carrying a concealed weapon for personal safety.

    Open carry or open display of a firearm is not a feasible alternative to concealed carry. Open carry can and has resulted in overzealous police and/or prosecutors charging disorderly conduct under sec. 947.01, Wis. Stats., for what the court considers the lawful open carrying and display of handguns.
    The argument that this will not happen with reasonable prosecutors has already been proven wrong. See the Wisconsin State Journal article, at the following citation: http://host.madison.com/wsj/news/loc...cc4c002e0.html This article details how five men were issued disorderly conduct citations for eating at a Culver’s restaurant while having firearms in holsters in plain view.

    Thus, while the State has an interest in public safety, sec. 941.23 is unconstitutional because it is not narrowly tailored to achieve the State’s interest nor is it the least restrictive means for achieving that interest.

    In essence, no State shall abridge the privileges and immunities of citizens of the United States. The right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged by any State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment and must be repealed.


    Don Marso
    Last edited by cowboyridn; 11-05-2010 at 03:35 AM. Reason: spacing

  9. #9
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    The following link contaains a slide that shows how a case moves through the Wisconsin court system.

    http://www.wicourts.gov/about/organization/moves.htm

    And for those interested following is a link to the appeals procedure

    http://wilawlibrary.gov/topics/justice/appeals.php
    Last edited by Captain Nemo; 11-05-2010 at 08:30 AM.

  10. #10
    Banned
    Join Date
    Jun 2006
    Location
    Washington Island, across Death's Door, Wisconsin, USA
    Posts
    9,193

    Thank you!

    It is interesting and informative. Imagine, 241 Circuit Courts! And following the linked URL at the top of the page 'backwards' takes one to further interesting stuff that doesn't seem to be available from the top level page.
    Last edited by Doug Huffman; 11-05-2010 at 08:36 AM.

  11. #11
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    APPEAL PROCEDURE IN COURT OF APPEALS
    IN S. 971.17 PROCEEDINGS AND IN CRIMINAL
    AND CH. 48, 51, 55, 938, AND 980 CASES


    809.30 Rule (Appeals in s. 971.17 proceedings and in criminal, ch. 48, 51, 55, 938, and 980 cases).

    809.30(1)
    (1) Definitions. In this subchapter:


    809.30(1)(a)
    (a) "Final adjudication" means the entry of a final judgment or order by the circuit court in a s. 971.17 proceeding, in a criminal case, or in a ch. 48, 51, 55, 938, or 980 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375 (7).


    809.30(1)(b)
    (b) "Person" means any of the following:


    809.30(1)(b)1.
    1. A defendant seeking postconviction relief in a criminal case.

    b) Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. If the record discloses that sentencing or final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after sentencing or final adjudication on the day of the sentencing or final adjudication. The notice shall include all of the following:


    809.30(2)(b)1.
    1. The case name and number.


    809.30(2)(b)2.
    2. An identification of the judgment or order from which the person intends to seek postconviction or postdisposition relief and the date on which the judgment or order was entered.


    809.30(2)(b)3.
    3. The name and address of the person and his or her trial counsel.


    809.30(2)(b)4.
    4. Whether the person's trial counsel was appointed by the state public defender and, if so, whether the person's financial circumstances have materially improved since the date on which his or her indigency was determined.


    809.30(2)(b)5.
    5. Whether the person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.


    809.30(2)(b)6.
    6. Whether a person who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the person has retained counsel to pursue postconviction or postdisposition relief, counsel's name and address shall be included.

    The above is an excerpt from the complete statute.

    Note that there is a 20 day time limit stated under 809.30(1)(b).1

    The clerk of the appeals court can answer if there was an appeal filed within 20 days.

  12. #12
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    The chairman implies that in Hamdan the WSC only endorses a licensing and/or permit system as a solution to the concealed carry dilemma. In my opinion that is not entirely true.

    Following is the paragraph from Hamdan that addresses the issue.

    ¶85. The approval of a state constitutional right to keep and bear arms for security, defense, hunting, recreation, and any other lawful purpose will present a continuing dilemma for law enforcement until the legislature acts to clarify the law. We urge the legislature to thoughtfully examine Wis.Stat.§941.23 in the wake of the amendment and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon. We happily concede that the legislature is better able than this court to determine public policy on firearms and other weapons.38

    If the paragraph is carefully read there appear to be two options. The Court asks the leigslature to clarify the law. The Court presents two options. One is certainly a licensing or permit system but the Court also says "We urge the legislature to thoughtfully examine Wis.Stat.941.23 in the wake of the amendment and to consider the possibility---".
    the "and to" is important and presents the second option. If the Court was only interested in a licensing or permit system as a solution it would not have inserted the word "to". The statement would read "We urge the legislature to thoughtfully examine Wis.Stat.941.23 in the wake of the amendment and consider the possibility of a licensing or permit system for persons who have a good reson to carry a concealed weapon". The word "to" is allimportant.

    Also the statement is not a direction to the legislature it is only a recommendation. "and to consider the possibility".
    No question that the recommendation carries a lot of influence but it is only a recommendation.

    In my opinion the WSC definitely left the door open for legislative action to repeal 941.23.

  13. #13
    Regular Member
    Join Date
    Jun 2006
    Location
    , ,
    Posts
    1,169

    The Legislature Does Not Need

    a door to be left open by the WiSupCt. With respect to statutes they can create, modify or repeal as long as their actions are within the boundaries of the state constitution and federal law. The court was saying that the conflict between implementation of Sec. 25 and 941.23 would continue and that resolving it on a case by case basis was not a good idea. Since the permit system was (and is) the most common method used, it is not surprising that mention was made of it. No matter what, at least one form of carry must be allowed and be permitless - OC or CC or both. If both are either banned or subject to permit, section 25 would be rendered nugatory.

  14. #14
    Regular Member paul@paul-fisher.com's Avatar
    Join Date
    May 2009
    Location
    Chandler, AZ
    Posts
    4,047
    20 days have passed since the decision and an appeal has not been filed, so an appeal cannot be filed.

  15. #15
    Wisconsin Carry, Inc. Wisconsin Carry, Inc. - Chairman's Avatar
    Join Date
    Jan 2010
    Location
    , ,
    Posts
    1,197
    Based on your response, though, can I assume the WCI current position is to repeal the unconstitutional statute?
    Correct. Our position has always been that we believe in an "all of the above" approach which means legislative action, legal action, and PR.

    The chairman implies that in Hamdan the WSC only endorses a licensing and/or permit system as a solution to the concealed carry dilemma. In my opinion that is not entirely true.
    I agree. I don't think its possible to say the supreme court ONLY endorses a permit system, but I DO believe based on their comments that they would NOT find a permit system UNconstitutional.

    That is not to say the court thinks we HAVE to have a permit system.

    I think what the court said is at a minimum the legislature needs to implement a permit system to deal with the blanket ban which IS unconstitutional, but ultimately the court believes its up to the legislature.

    If the legislature repeals 941.23 that would of course deal with the unconstitutionality of 941.23 in the wake of art. 1 sec 25 and the court wouldn't have anything to say about it because in their own words they "happily concede that the legislature is better able than this court to determine public policy on firearms and other weapons"

    No matter what, at least one form of carry must be allowed and be permitless - OC or CC or both. If both are either banned or subject to permit, section 25 would be rendered nugatory.
    Where do you draw this conclusion from?

    I don't see anywhere where the court said you MUST have a right to carry by some means without a permit.

    I only see them saying that at a bare minimum there must be a way for people who have "a good reason to carry concealed" to be able to carry.

    Can anyone show me case law where a permit was deemed unconstitutional?

    We KNOW that the USSC has found we have a fundamental constitutional right to drive. Yet is there ANY case-law that says a drivers license in unconstitutional?
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

  16. #16
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    I think it is extremely important to our cause that a concealed carry case be elevated to the WSC level for a new look by the current court. The court membership has undergone significant change since it made it’s landmark decisions in the cases of Hamdan and Cole. The Court as it existed in 2003 consisted of justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Sykes and Bablich. Today it consists of justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler and Gableman. A 43% change. It is rare that a supreme court will find fault with another supreme court decision but it is possible, especially if the earlier ruling appears to be suspect. I feel that may just be the case concerning the decisions on the constitutionality of statute 941.23 as they occur in Hamdan and Cole. I think the Court would welcome a chance to take a new look. One only needs to take a close look at Hamdan to realize the 2003 court was very pro law enforcement. The Court went to extremes in both Hamdan and Cole to preserve the constitutionality of statute 941.23. In doing so I believe the Court made some serious blunders especially in Hamdan.

    Part of the problem with the Hamdan and Cole decisions is the time line. Article I section 25 did not come into effect until November 30 of 1998. The opinion in Hamdan and Cole took place a scant 4½ years later, nearly overnight in court time. The unprecedented 76% voter ratification of Art I section 25 presented problem one to the Court. It pitted the publics wishes against the Court’s history of siding with the State. In order to preserve the police state the court had to find argument to preserve the constitutionality of statute 941.23. To do so the Court was left to it’s own defenses. Because the Right to Keep and Bear Arms amendment was so new there was no pertinent Wisconsin case law for the court to rely on.
    ------------------------------------------------------------
    16. This case, along with the companion case of Cole, decided today, represents our first opportunity to interpret Wisconsin's new right to "keep and bear arms."5 Article I, Section 25 became part of the Wisconsin Constitution on November 30, 1998. It provides in its entirety: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

    ¶17. We are asked to interpret this provision in the context of a challenge to Wisconsin's sweeping prohibition on the carrying of concealed weapons. This prohibition is codified in Wis.Stat.§941.23 as follows: "Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor."
    ------------------------------------------------------------
    The uniqueness of the Wisconsin concealed carry statute also voided use of case law from other states.
    ------------------------------------------------------------

    ¶51. As a result of our legislature's decision to prohibit the carrying of concealed weapons under any circumstance,27 the interaction between Wisconsin's CCW statute and the state constitution's right to bear arms is anomalous, if not unique. It appears that no other state, except perhaps Kansas, completely bans the carrying of concealed weapons by all citizens in all circumstances while simultaneously recognizing the right of individuals to own, possess, and carry firearms for lawful purposes. Hence, these other states provide little guidance on the particular issue of whether Hamdan's conduct, which violated the CCW law, may still be constitutionally protected.


    ¶52. We have described Wisconsin's exceptionally restrictive scheme to show how it heightens the conflict between the CCW statute and the rights in Article I, Section 25. The issue is whether and when this conflict requires us to limit the outer reaches of the CCW statute, in order to avoid unreasonable impairments on the right to bear arms.
    ------------------------------------------------------------

    Because the WSC could find no support in case law it was left to it’s own devices to find a way to preserve the constitutionality of the concealed carry prohibition statute. In doing so I feel it made some serious blunders, especially in Hamdan.

    Hamdan argued his case on the plea of self defense. The Court didn’t like that plea so took it on itself to change Hamdan’s argument to one of security.
    ------------------------------------------------------------

    ¶29. Hamdan's second argument is that his conduct was privileged under Wis.Stat.§939.45(1), (2), and (6). Hamdan maintains that this court's holdings in State v. Dundon, 226 Wis.2d654, 594 N.W.2d780 (1999), and State v. Nollie, 2002 WI 4, 249 Wis.2d538, 638 N.W.2d280, which significantly limited the defense of privilege for CCW offenses, are now suspect by virtue of the adoption of Article I, Section 25.


    ¶64. The importance of being able to exercise the right to bear arms in the setting of one's own property is implied by the language of Article I, Section 25. The amendment enumerates several lawful purposes for which one can exercise the right to bear arms.29 Although Hamdan's conduct could arguably be construed as undertaken for the purpose of "defense," we think the circumstances logically point to the purpose of "security."
    ------------------------------------------------------------

    The Court used judicial construction to redefine the definition of the word “security” as it applies to Article I section 25.
    ------------------------------------------------------------

    ¶65. The term "security" is not defined by the amendment, nor is it given any specific meaning elsewhere under Wisconsin law. The relevant legal definition of "security" is "[t]he state of being secure, esp. from danger or attack." Black's Law Dictionary 1358 (7th ed. 1999). The applicable definitions of "security" in lay dictionaries are enlightening. Some definitions include: "1. freedom from danger, risk, etc.; safety.... 3. something that secures or makes safe; protection; defense.... 5. precautions taken to guard against crime, attack, sabotage, espionage, etc." Random House Unabridged Dictionary 1731 (2d ed. 1993).30 Security is also defined as "Something that gives or assures safety, as:...c. Measures adopted, as by a business or homeowner, to prevent a crime such as burglary or assault[.]" The American Heritage Dictionary of The English Language 1632 (3d ed. 1992) (emphasis added).



    ¶66. The common understanding of "security" does not implicate an imminent threat. Rather, it connotes a persistent state of peace. We believe the domain most closely associated with a persistent state of peace is one's home or residence, followed by other places in which a person has a possessory interest. A person is less likely to rely on public law enforcement for protection in these premises and is more likely to supply his own protection. In fact, a person who takes no initiative to provide security in these private places is essentially leaving security to chance. Firearms ownership has long been permitted in Wisconsin. Dowlut & Knoop, supra, at 190, subject to reasonable regulation.
    ------------------------------------------------------------

    The Court defined security in Article I section 25 to mean that it applied to ones personal business and/or property even though at the end of para 66 it flip-flopped and said this.

    “We infer that the inclusion in the amendment of the right to bear arms for security was intended "to include a personal right to bear arms to protect one's person, family, or property against unlawful injury and to secure from unlawful interruption the enjoyment of life, limb, family, and property,"


    The question then is. How can the Court rule that the prohibition of concealed carry is unconstitutional for only a portion of an activity contained in the constitutional amendment? When it, itself, says security also applies to security of one’s self and family.

    Next, the Court took on itself to make law. Courts aren’t allowed by statute to make law. Only the legislature can make law. The courts interpret law. In Hamdan the WSC said this about the concealed weapon statute.
    ------------------------------------------------------------

    ¶48. Wisconsin's current CCW statute is very broad. It is essentially a strict liability offense.20 The legislature has not authorized any statutory defenses or exceptions (other than peace officers) to the broad prohibition found in the statute. As presently construed, the statute prohibits any person, except a peace officer, from carrying a concealed weapon, regardless of the circumstances, including pursuit of one of the lawful purposes enumerated in Article I, Section 25. In addition, the statute reaches unloaded firearms as well as loaded ones, see Wis.Stat.§939.22(10) (defining a "dangerous weapon" under the CCW statute), and applies to any weapon within a individual's reach, see Asfoor, 75 Wis.2dat 433-34, if the person knows the weapon is present.
    ------------------------------------------------------------

    The WSC modified 941.23 by saying it was unconstitutional as applied to Hamdan even though Hamdan was not a peace officer.

    I think the issues I described are a serious error in judgment by the WSC and I think the WSC and the State realize it as such. For that reason I feel the State will do everything it can to avoid another review of concealed carry by the WSC. If it is not already too late I seriously doubt that the prosecution will appeal the Clark county case. The State would prefer the circuit court judgment be isolated to those court under the Clark county circuit court jurisdiction and not have state-wide effect. The only way we will get another concealed carry case elevated to the supreme court level is that someone is found guilty and have the ball in our court.

    My opinions nemo

  17. #17
    Wisconsin Carry, Inc. Wisconsin Carry, Inc. - Chairman's Avatar
    Join Date
    Jan 2010
    Location
    , ,
    Posts
    1,197
    Good analysis Captain!
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

  18. #18
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    From Hamdan:


    ¶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.

    Requiring a permit to keep and bear arms flies in the face of the above paragraph. The very word permit is a derivation of the word permission. It also implies that there is an approval/denial process involved. Article I section 25 is a fundamental right given to all law-abiding people in Wisconsin. There is no state approval required in order to excercise that right. If the State has the option to deny a qualified person the right to bear arms then the State is functionally denying the excercise of Article i section 25 for that person. If there is no approvial/denial option then what is the purpose of a permit?

    The comparison of a license to operate a motor vehicle is not appropriate. There is no amendment in the Wisconsin constitution that states we have the fundamental right to operate a vehicle. The issuance of a drivers license is evidence that we have undergone appropriate training and paid our fees and that we have the state's permission and privlege which gives us the right to operate a motor vehicle on any public roadway in the state. A privlege that can be revoked by the state for any number of onerous reasons. If there is any case law to the contrary please cite.

  19. #19
    Banned
    Join Date
    Jun 2006
    Location
    Washington Island, across Death's Door, Wisconsin, USA
    Posts
    9,193
    Quote Originally Posted by Captain Nemo View Post
    The comparison of a license to operate a motor vehicle is not appropriate. There is no amendment in the Wisconsin constitution that states we have the fundamental right to operate a vehicle. The issuance of a drivers license is evidence that we have undergone appropriate training and paid our fees and that we have the state's permission and privlege which gives us the right to operate a motor vehicle on any public roadway in the state. A privlege that can be revoked by the state for any number of onerous reasons. If there is any case law to the contrary please cite.
    Thank you. Driving is a privilege permitted.

  20. #20
    Wisconsin Carry, Inc. Wisconsin Carry, Inc. - Chairman's Avatar
    Join Date
    Jan 2010
    Location
    , ,
    Posts
    1,197
    Quote Originally Posted by Doug Huffman View Post
    Thank you. Driving is a privilege permitted.
    “The right to operate a motor vehicle upon the public streets and highways is not a mere privilege. It is a right or liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” Adams v. City of Pocate//o, 416 P. 2d 46, 48; 91 Idaho 99 (1966).

    “The right of a citizen to travel upon the public highways includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse-drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business. The rights aforesaid, being fundamental, are constitutional rights.” Teche Lines v. Dan forth, 12 So. 2d 784, 787 (Miss.—1943). See also: Thompson v. Smith, supra.


    Sorry Doug, you are wrong

    The right to drive is a fundamental constitutional right. Yet we have to obtain a license to do so.

    I'm not advocating licensing, merely pointing out that I don't see ANY evidence that courts find permits unconstitutional.
    ¶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.

    Requiring a permit to keep and bear arms flies in the face of the above paragraph.
    I don't think it does.

    I agree we shouldn't have to have a permit. But it says right in the text you cite (and I bolded) that it doesn't convey an unfettered right and the state retains the power to make reasonable restrictions.

    I see no evidence the court would find a permit "unreasonable" since they suggested it.

    YMMV
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

  21. #21
    Accomplished Advocate
    Join Date
    May 2006
    Location
    Bedford, Texas, USA
    Posts
    834
    Quote Originally Posted by Wisconsin Carry, Inc. - Chairman View Post
    Sitting back and waiting for this case to be appealed (which I don't think it will be) is not a viable strategy.

    The Wisconsin Supreme Court's solution to the unconstitutionality of the blanket ban that 941.23 imposes WAS A PERMIT SYSTEM.

    EVEN IF the Clark County case is appealed to the supreme court and upheld, that would NOT prevent the legislature from enacting a permit system which the Wisconsin Supreme Court would almost certainly find CONSTITUTIONAL.

    941.23 has only been asserted unconstitutional because its a blanket ban.

    The court does NOT share our belief that a permit is unconstitutional. They only believe a blanket ban is unconstitutional.

    Only legislation (a repeal of 941.23) will secure your right to carry without a permit. And trust me, we will STILL have to be vigilant year after year for a politician to introduce a permit system in the name of "safety" suggesting it would reduce crime.

    The Wisconsin Supreme Court will NOT find a permit system unconstitutional. The Wisconsin Supreme Court offers us NO protection from a permit system.
    Murdock v. commonwealth of Pennsylvania.
    A State may not impose a charge for the enjoyment of a Right granted by the federal constitution.... Thus it may not exact a license tax for the privilege of carrying on interstate commerce (keeping and bearing arms).... This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the State. The privilege in question exists apart from State authority. It is guaranteed the People by the federal constitution."

    emphasis mine.

  22. #22
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    Sorry Nik, but according to Wisconsin case law you are wrong.


    COURT OF APPEALS
    DECISION
    DATED AND FILED
    February 6, 2002
    Cornelia G. Clark
    Clerk of Court of Appeals
    This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    A party may file with the Supreme Court a
    petition to review an adverse decision by the
    Court of Appeals. See WIS. STAT. § 808.10
    and RULE 809.62.
    Appeal Nos. 01-1900
    01-1901
    Cir. Ct. No. 01-TR-5181
    01-TR-5182
    STATE OF WISCONSIN IN COURT OF APPEALS
    DISTRICT II
    COUNTY OF FOND DU LAC,
    PLAINTIFF-RESPONDENT,
    V.
    KEVIN C. DERKSEN,
    DEFENDANT-APPELLANT.

    ¶5 We will not quarrel with Derksen’s assumption that he has a “God
    given, constitutionally recognized right to travel.” We agree that Derksen has a
    right to travel freely in this country. Be that as it may, there is nothing in the
    Constitution or in any of the cases in this state or in the United States Supreme
    Court allowing him to exercise this right of travel by a particular method of
    transportation. In other words, there is no “right” to travel about while operating a
    motorized vehicle on the highways of this country, and in particular as it relates to
    this case, upon the highways of this state.

    ¶6 There is a compelling basis for differentiating the right to travel from
    the means of travel. The automobile of today, with engineering emphasis on
    power and speed, can be a crippling if not lethal weapon in the hands of an
    irresponsible driver. See Steeno v. State, 85 Wis. 2d 663, 671, 271 N.W.2d 396
    (1978). The roads upon which Derksen wants to drive an auto (and presumably
    speed upon) were built by human hands with money collected by the citizens for
    their common welfare. Since it is the citizens who paid to build the roads, these
    same citizens have the right to insist that everyone wishing to drive on the public
    highways be licensed. A good record-keeping system of driver licensing allows
    the citizens of this state to identify irresponsible drivers with less difficulty. This
    is why our supreme court wrote in Steeno that “the granting of an automobile
    license to operate a motor vehicle is a privilege and not an inherent right.” Id. We
    recognize that Derksen has cited a couple of old cases from other jurisdictions
    from which he could argue in support of his theory. But we are not bound by
    those cases. We are bound by our supreme court and, in a constitutional sense, by
    the decisions of the United States Supreme Court. See Cook v. Cook, 208 Wis. 2d
    166, 189-90, 560 N.W.2d 246 (1997). We refuse to follow or even discuss the
    ancient cases from other jurisdictions cited by Derksen.

    ¶9 Therefore, we reject Derksen’s argument. There is no “right” to
    drive a motor vehicle upon a public highway and certainly no “right” to speed on
    the highway. Derksen is certainly free to travel on the highways of this country.
    He can take the bus. He can hire a driver. He can operate a bicycle on roads that
    allow bicycles. He can even walk on some highways. No one will stop him and
    claim that he has no right to travel. But he cannot operate a motor vehicle unless
    he passes a test showing that he is a responsible driver, pays his fees, and drives
    responsibly.

  23. #23
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    I'll concede to the resonableness of a license to carry only under the following condition. The license is only used to ascertain that the holder is of law abiding character and is not prohibited under federal and Wisconsin law from possessing a firearm. If the holder is so determined then the license must be issued. If the license comes with the extra baggage of mandatory training and/or application fees then I don't agree that under the umbrella of a constitutional right it is reasonable.

  24. #24
    Centurion
    Join Date
    Jun 2008
    Location
    Pleasant Grove, Utah, USA
    Posts
    3,828
    Quote Originally Posted by Captain Nemo View Post
    I'll concede to the resonableness of a license to carry only under the following condition. The license is only used to ascertain that the holder is of law abiding character and is not prohibited under federal and Wisconsin law from possessing a firearm. If the holder is so determined then the license must be issued. If the license comes with the extra baggage of mandatory training and/or application fees then I don't agree that under the umbrella of a constitutional right it is reasonable.
    Is the permit not in reality a defacto registration of gun owners (making the assumption that those pursuing a permit to carry ACTUALLY OWN A FIREARM?

    ANY requirement for a license/permit to exercise a fundamental right IS AN INFRINGEMENT OF THAT RIGHT!!!!!!!
    Last edited by JoeSparky; 11-05-2010 at 09:31 PM.

  25. #25
    Regular Member paul@paul-fisher.com's Avatar
    Join Date
    May 2009
    Location
    Chandler, AZ
    Posts
    4,047
    Quote Originally Posted by Captain Nemo View Post
    I'll concede to the resonableness of a license to carry only under the following condition. The license is only used to ascertain that the holder is of law abiding character and is not prohibited under federal and Wisconsin law from possessing a firearm. If the holder is so determined then the license must be issued. If the license comes with the extra baggage of mandatory training and/or application fees then I don't agree that under the umbrella of a constitutional right it is reasonable.
    If this happens, we would not be able to refuse ID. This give up another right. No thanks.

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
  •