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

DKSuddeth · Nov 5, 2010

Wisconsin Carry said:
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.

Captain Nemo · Nov 5, 2010

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.

Captain Nemo · Nov 5, 2010

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.

JoeSparky · Nov 5, 2010

Captain Nemo said:
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!!!!!!!

paul@paul-fisher.com · Nov 5, 2010

Captain Nemo said:
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.

Captain Nemo · Nov 5, 2010

Joe Sparky:

Yes it is. I had intended to include a statement that I would not concede to the establishment of any data base of licensees. In my haste I overlooked it. Thanks for being so observant.

As far as infringement goes I tend to agree with Nik that a validation that a person is permitted by law to exercise a right is in itself not really an infringement on the right. If a qualified person was denied a license or had to go through actions to earn the license then that certainly would be an infringement.

I said in my post that If a person is not prohibited under federal and state law from possessing a firearm a license must be issued. Under those conditions there is no infringement on the right. If an unqualified person is denied a license there is no infringement on their rights because they do not have the right to keep and bear arms.

JoeSparky · Nov 5, 2010

Another problem with a Permit to carry...

Since one of our standards in the Country is the we are innocent until proven guilty.

What I fear in a permit to carry situation is that I must produce a permit to prove that I am legal to carry. This basically is "guilty UNTIL proven innocent".

As difficult as it is for our various law enforcement agencies or officers to do the jobs they have chosen.... it is incumbent upon the prosecution and LEO's to prove that we are guilty not force US to prove that we are innocent.

We have LEO's, police departments, and judges that allow the presence of a firearm or weapon to reverse the standard of Innocent until proven guilty to guilty until proven innocent. We don't have officers stopping vehicles being driven on the roads merely to ascertain that the driver has a license to drive. We don't have LEO's randomly stopping pedestrians on the sidewalk and making them prove that they have a legal reason or justification for being where they are. YET, we have many LEO's stopping persons carrying a firearm, detaining said carrier, and using the firearm as justification to "check and make sure" one is not a prohibited person or a felon! And some( I wanted to put "many" here) courts are allowing/encouraging this practice to continue!

And another tangent....

We are hearing reports of many persons lawfully carrying a firearm being cited for "disorderly conduct" or "disturbing the peace" for activities not meeting the standards required to support these charges simply because they are in possession of a firearm.

If my actions do not support a charge of "disorderly conduct" or "disturbing the peace" without a weapon on my person HOW CAN THE SAME ACTIONS SUPPORT THESE CHARGES JUST BECAUSE I HAVE A WEAPON?

As I have posted earlier in this thread....

The ONLY restriction on the carry of firearms by those legal to do so is a personal one---

CAN you reliably hit your selected target in a crisis in order to defend your life or the life of one in your presence?

There can be NO government mandated permit, training, socio-economic status, race, religion, creed requirement to exercise the fundamental right of defense of self or others around us OR to protect ourselves from a government run amock intent on violating our Constitutionally PROTECTED GOD GIVEN RIGHTS!

Captain Nemo · Nov 6, 2010

Those that believe we are innocent until proven guilty realistically live under an illusion. On the issue of concealed carry the WSC almost said a much in Hamdan.

¶86. In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.39 A defendant who challenges on constitutional grounds a prosecution for carrying a concealed weapon will be required to secure affirmative answers to the following legal questions before he or she is entitled to raise a constitutional defense. First, under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the State's interest in enforcing the concealed weapons statute? The State generally has a significant interest in prohibiting the carrying of concealed weapons. Thus, to satisfy this element, the defendant must have been exercising the right to keep and bear arms under circumstances in which the need to do so was substantial. Second, did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? Put differently, did the defendant lack a reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms? The invocation of this possible defense must be raised by motion of the defendant before trial, and resolution of these legal questions must be made by the court prior to trial. Affirmative answers to these questions will require a court to conclude that the State's enforcement of the CCW statute constituted an unreasonable and unconstitutional impairment of the right to keep and bear arms as granted in Article I, Section 25 of the Wisconsin Constitution.

Doug Huffman · Nov 6, 2010

There are existing certifications that provide that certainty w/o more bureauocracy.

Captain Nemo said:
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.

http://en.wikipedia.org/wiki/NEXUS_(frequent_traveler_program)

Eligibility

To qualify for the program,

an applicant must be a citizen or permanent resident of Canada or the United States, and

lived continuously in one or both of those countries for at least the past three years.

Applicants must also be legally admissible to both nations,

complied with immigration and customs regulations during previous travel,

as well as having a criminal history check.

Additionally, if the applicant is under 18, both parents must provide their written consent

All I have to do is convince my wife that the interview trip will be for pleasure.

http://www.cbp.gov/xp/cgov/travel/trusted_traveler/nexus_prog/

J.Gleason · Nov 6, 2010

Let me remind everyone here that this case was not appealed, but if it were appealed, how long do you suppose it could take? are you all willing to wait years before the repeal of 941.23 happens?

We need to stop focusing on just one solution and look for many. Attempt the many at the same time. The chances of success will be much greater. Or is it too hard to multi task?

1) Find a legislator that will approach the AG for his opinion on the constitutionality of 941.23.
2) Find a legislator that will bring the fight to Gunderson and his PPA Bill (Which is the same bill Doyle Vetoed, Thank God) and bring some common sense into the legislation.
3) Contact all of our legislators, continuously and without mercy on this issue until they understand what we want and get on board.
4) Make our legislators understand what happened in this last election and why. And make them understand what could happen if they do not hold up to their campaign promises. It is time for them to man up.
5) Contact Jordan Austin (The NRA Wisconsin Liaison) (jaustin@nrahq.org) and tell him to get on board or the whole country will find out just what kind of infringements the NRA supports when it comes to out gun rights.
6) Contact D.A. Fox from Jackson County and ask him to request an AG Opinion on the constitutionality of 941.23 based on the Clarke County court decision and the SCOTUS decision in McDonald v Chicago.
7) Contact the Clark County Judge and ask him to request an AG Opinion on the constitutionality of 941.23 based on the Clarke County court decision and the SCOTUS decision in McDonald v Chicago.
8) Contact all of our legislators and ask them to request an AG Opinion on the constitutionality of 941.23 based on the Clarke County court decision and the SCOTUS decision in McDonald v Chicago.
9) When speaking to any of the above make it clear that you are in favor of a repeal of 941.23.
10) Don't be afraid to make follow up calls to let them know you have not forgotten and that you are holding them to the campaign promises they made and the principles of the GOP Platform.
11) Getting into the ear of Scott Walker and helping him to understand what a reasonable bill includes and does not include may be a great step to take.

This could all be done in a day or so by each one of us. I have already contacted my legislators. Now on to the next step.

The time is NOW!

Wisconsin Carry Inc. - Chairman · Nov 6, 2010

Captain Nemo said:
Sorry Nik, but according to Wisconsin case law you are wrong.

Well, now we have dueling case-law. I'm not a lawyer and I don't have time to play keyboard attorney about what case-law says is or is not a right.

Not speaking directly to you Captain, but my final comments on the "driving is a right vs. privilege" are these:

I KNOW what our rights are. I OFTEN disagree with what out out-of-control nanny government has decided to call rights and what it has tried to convince us are privileges. I understand freedom more than that. I understand the vision our founding fathers laid out and that governments do not have rights, people do. And I know that powers not specifically given to government BY the people are retained by the people.

I believe that driving is a right. I believe we have lots of rights that courts don't acknowledge as rights. Unfortunately that is what happens with a couple hundred years of progressive liberalism to pollute and distort a vision of very limited government of the people.

I recognize that just like todays conservative politicians are less conservative than liberals of 50 years ago, so to judges now are not as conservative as liberal judges of many decades ago. That is how much the paradigm has shifted from freedom.

I find it sad that people who believe so passionately that the right to carry is such a fundamental right that you shouldn't have to get a permit don't have a parallel believe that the right to drive is JUST as fundamental.

I support all rights, not just the right to carry and I WON'T try to contrast the right to carry without a permit by throwing the right to drive "under the bus" by calling it a privilege DESPITE WHAT our government tries to brainwash us to believe.

We do have a right to drive. Don't throw it under the bus by calling it a privilege. It is not. Our rights transcend governments. We have a human right to do whatever we want so long as we don't infringe on the rights of others.

Government doesn't "own" the concept of driving therefore government has no power to grant it out as a 'privilege' (though I know our government likes to call it that)

Rather than trying to justify right to carry without a permit DESPITE having to get a permit for the RIGHT to drive, I would say that JUST BECAUSE our government has infringed on our right to drive with permits and fees DOES NOT MEAN we should let it infringe our right to carry with permits and fees.

No need to throw one right (the right to drive) under the bus by calling it a privilege to defend the right to carry without a permit.

Support ALL rights. Don't sell any rights short. Don't throw any rights under the bus to try to fortify your belief in other rights.

Carry On

J.Gleason · Nov 6, 2010

Nik, are you saying we have a right to drive or a right to the use of the public roadway?

Just want to be clear on this.

JJC · Nov 7, 2010

Any idea what year this "High Court" will hear this case?

JJC

Spartacus · Nov 7, 2010

When I was involved with the Patriot or Sovereignty movement a few years back quite a few guys attempted to drive without licenses and there were even a couple of places that succeeded from the union and printed their own DLs and license plates all to no avail.

I know the case that Nemo posted very well and the court indeed confirms the right to travel as in ambulation or on horseback, but when you drive on city, county, state and federally owned highways and roads you do it with permission, obeying the rules imposed by whatever jurisdiction controls that particular road, from speed limits to paying tolls.

So we do indeed have the right to freely move about the country, but selected means are by permission only.

Spartacus · Nov 7, 2010

And Now Back to Our regularly Scheduled Topic...

Nik asked the question if permitting was ever found unconstitutional in any state and my answer is no, how could it when the Federal Government has left the details of the second amendment to be worked out by the states themselves?

Nemo has it right here as well:

Captain Nemo said:
As I see it the role of constitutional authority between the U.S. Constitution and state constitutions is in a way similar to the Wisconsin preemption statute. By that I mean just as Wisconsin’s local governments can not make firearm laws more strict than the State nor can state constitutions make amendments more strict than the U.S. constitution. Meaning a state constitution can not trump the federal constitution. On the other hand the U.S. constitution must recognize the state’s authority to self govern.

The landmark cases of Heller and McDonald reflect the division of constitutional authority. Both cases are immensely important in establishing our federal fundamental right to keep and bear arms but their impact at the state level is less compelling. Heller established that every qualified citizen of the United states is entitled to the right to keep and bear arms and congress can not eviscerate (infringe) that right. The McDonald ruling built on the Heller ruling by declaring that the fundamental individual right to keep and bear arms was also incorporated to the states. Meaning that state and local governments also may not enact laws that would deny a qualified individual from the right to posses a firearm. However, both rulings fell short of dictating the time. place and manner under which the right to keep and bear arms can be exercised. I believe SCOTUS intentionally left that determination up to the states. The Wisconsin Supreme Court specifically addressed that issue in State v 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.

¶46. Under its broad police power, Wisconsin may regulate firearms. It may regulate the time, place, and manner in which firearms are possessed and used. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. See State v. Perez, 2001 WI 79, 244 Wis.2d582, 628 N.W.2d820. It is constitutional. We hold that only if the public benefit in this exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied.

Fortunately paragraph 41 is there as a control on paragraph 46.

My opinion: The 2nd amendment of the U.S. constitution establishes that every qualified U.S. citizen is guaranteed the right to keep and bear arms and that right shall not be denied by federal, state or local governments. The regulation of the time, place and manner by which that right is exercised is left to the individual states.

J.Gleason · Nov 7, 2010

Spartacus said:
When I was involved with the Patriot or Sovereignty movement a few years back quite a few guys attempted to drive without licenses and there were even a couple of places that succeeded from the union and printed their own DLs and license plates all to no avail.

I know the case that Nemo posted very well and the court indeed confirms the right to travel as in ambulation or on horseback, but when you drive on city, county, state and federally owned highways and roads you do it with permission, obeying the rules imposed by whatever jurisdiction controls that particular road, from speed limits to paying tolls.

So we do indeed have the right to freely move about the country, but selected means are by permission only.

So again you contradict yourself, You were a member of the patriotic and Sovereignty movement which would indicate that you would stand against government even in support of succeeding from the states. Yet today you would settle for a permit? Lying again!

Your just plain full of crap. It oozes out of every orifice of your body. You have ZERO credibility here.

Doug Huffman · Nov 7, 2010

Now now. There is the 'Amen chorus'

A recurring schtick often mistakenly attributed to Chip 'n Dale is the characters' alleged use of politeness: "After you," … "No, I insist, after you!" This gag, from the early-1900s Alphonse and Gaston comic strip, is used by another studio's characters: Warner Bros' Mac and Tosh as the Goofy Gophers.

Wisconsin Carry Inc. - Chairman · Nov 7, 2010

Spartacus said:
So we do indeed have the right to freely move about the country, but selected means are by permission only.

“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.

Just because the states infringe a right. Just because the states regulate a right, just because SOME states deny some rights ALL together does NOT mean they are not rights.

J.Gleason · Nov 7, 2010

Good luck trying to teach him anything.

Doug Huffman · Nov 7, 2010

Wisconsin Carry said:
Well, now we have dueling case-law. I'm not a lawyer and I don't have time to play keyboard attorney about what case-law says is or is not a right.

Not speaking directly to you Captain, but my final comments on the "driving is a right vs. privilege" are these:

"Is that your final guess?" Weeell, almost final.

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

Accomplished Advocate

Regular Member

Regular Member

Centurion

Regular Member

Regular Member

Centurion

Regular Member

Banned

Banned

Wisconsin Carry, Inc.

Banned

Regular Member

Banned

Banned

Banned

Banned

Wisconsin Carry, Inc.

Banned

Banned