Results 1 to 12 of 12

Thread: Legal argument for Constitutional concealed carry and to repeal 941.23

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

    Legal argument for Constitutional concealed carry and to repeal 941.23

    Attached is a legal argument I wrote today to prevent the legislature from enacting a bill with government mandated regulations for concealed carry. It also argues that Wisconsin Statute 941.23 is unconstitutional and needs to be repealed.

    When you write your legislature and governor, feel free to include what I’ve wrote. I'm sure this isn't all conclusive, so, if you would like to add to it, feel free to make comments. If you want a copy in a word document, so you can add any other argument to the complaint, pm me with your email address and I'll send you a copy.

    Don


    UNITED STATES DISTRICT COURT
    WESTERN DISTRICT OF WISCONSIN


    Citizens of Wisconsin;
    Plaintiff,


    V.

    XXXXXXXXXXXX, Attorney General of

    Wisconsin;

    Defendants,


    COMPLAINT FOR DECLARATORY
    AND INJUNCTIVE RELIEF


    COME NOW the Plaintiffs, citizens of Wisconsin by and through undersigned counsel, and complain of the defendants as follows:

    THE PARTIES

    1. Plaintiff’s are natural people and law abiding citizen of the United States and of the State of Wisconsin.

    2. Defendant XXXXXXXXXX is the Attorney General of Wisconsin and is responsible for executing and administering the State of Wisconsin laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiffs, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs.

    JURISDICTION AND VENUE

    3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983.

    4. Venue lies in this Court pursuant to 28 U.S.C. § 1391.

    STATEMENT OF FACTS

    5. The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a Free State, the right of the people to keep and bear Arms shall not be infringed.”

    6. The Second Amendment guarantees individuals a fundamental right to carry functional handguns in non-sensitive public places for purposes of self-defense.

    7. The Second Amendment right to keep and bear arms applies as against the states by operation of the Fourteenth Amendment.

    8. Wisconsin Statute 941.23 prohibits the public from carrying of functional handguns concealed and is unconstitutional on its face and in violation of Article I, Section 25 of the Wisconsin Constitution and the Second and Fourteenth Amendments of the United States Constitution as was decided in the United States Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), McDonald v. City of Chicago No. 08-1521 (U.S. June 28, 2010, and most recently in Wisconsin under State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    9. Currently carrying of a concealed handgun is a Class A misdemeanor offense, carrying a penalty for a Class A misdemeanor may include a fine up to $10,000, or imprisonment for up to 9 months, or both.

    10. If the legislature and governor approve a bill with government mandated regulations, citizens may have to qualify for a handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    11. Additionally, the (issuing authority) might be required to determine that the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.

    12. Plaintiff’s are law abiding citizens and currently have Constitutional open carry without government mandated regulation and should not be subjected to government mandated regulations for concealed carry of a functional firearm.

    COUNT I
    U.S. CONST., AMEND. II, 42 U.S.C. § 1983

    13. Paragraphs 1 through 12 are incorporated as though fully stated herein.

    14. Individuals cannot be required to prove their “good and substantial reason” for the exercise of fundamental constitutional rights, including the right to keep and bear arms.

    15. Individuals cannot be required to demonstrate that carrying a functional handgun concealed is “necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, as a prerequisite for exercising their Second Amendment rights.

    16. Wisconsin’s Public Safety regulation that functional handgun concealed carry permit applicants demonstrate “good and substantial reason to wear, carry, or transport a handgun, such . . . that the permit is necessary as a reasonable precaution against apprehended danger,” violates the Second Amendment to the United States Constitution, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.

    17. Defendants’ application of Wisconsin’s Public Safety regulation that functional handgun concealed carry permit applicants might be required to demonstrate “good and substantial reason to wear, carry, or transport a functional handgun, such . . . that the permit is necessary as a reasonable precaution against apprehended danger,” violates the Second Amendment to the United States Constitution, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against a bill that has governmental mandated regulations.

    COUNT II
    U.S. CONST., AMEND. XIV, EQUAL PROTECTION, 42 U.S.C. § 1983

    18. Paragraphs 1 through 17 are incorporated as though fully stated herein.

    19. Wisconsin’s Public Safety requirement that functional handgun concealed carry permit require applicants demonstrate cause for the issuance of a permit violates Plaintiffs’ Fourteenth Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983.

    20. Wisconsin’s Public Safety regulation that functional handgun concealed carry permit require applicants to qualify for a handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of a bill that has Government mandated regulations.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiffs request that judgment be entered in their favor and against
    Defendants as follows:

    1. An order permanently enjoining defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enacting a bill under the Wisconsin’s Public Safety regulation that require applicants to qualify for a functional handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    2. An order permanently enjoining defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enacting a bill that would deny a permit to carry a functional concealed firearms on grounds that the applicant does not face a level of danger higher than that which an average person would reasonably expect to encounter.

    3. An order that Wisconsin Statute 941.23 as unconstitutional.

    4. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. § 1988;

    5. Declaratory relief consistent with the injunction; and

    6. Any other further relief as the Court deems just and appropriate.


    Sincerely,

    Attorney representing citizens of Wisconsin
    Last edited by cowboyridn; 11-14-2010 at 01:07 AM. Reason: words

  2. #2
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Thats's actually pretty nice!

  3. #3
    Founder's Club Member - Moderator Gray Peterson's Avatar
    Join Date
    May 2006
    Location
    Lynnwood, Washington, USA
    Posts
    2,238
    Quote Originally Posted by cowboyridn View Post
    Attached is a legal argument I wrote today to prevent the legislature from enacting a bill with government mandated regulations for concealed carry. It also argues that Wisconsin Statute 941.23 is unconstitutional and needs to be repealed.

    When you write your legislature and governor, feel free to include what I’ve wrote. I'm sure this isn't all conclusive, so, if you would like to add to it, feel free to make comments. If you want a copy in a word document, so you can add any other argument to the complaint, pm me with your email address and I'll send you a copy.

    Don


    UNITED STATES DISTRICT COURT
    WESTERN DISTRICT OF WISCONSIN


    Citizens of Wisconsin;
    Plaintiff,


    V.

    XXXXXXXXXXXX, Attorney General of

    Wisconsin;

    Defendants,


    COMPLAINT FOR DECLARATORY
    AND INJUNCTIVE RELIEF


    COME NOW the Plaintiffs, citizens of Wisconsin by and through undersigned counsel, and complain of the defendants as follows:

    THE PARTIES

    1. Plaintiff’s are natural people and law abiding citizen of the United States and of the State of Wisconsin.

    2. Defendant XXXXXXXXXX is the Attorney General of Wisconsin and is responsible for executing and administering the State of Wisconsin laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiffs, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs.

    JURISDICTION AND VENUE

    3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983.

    4. Venue lies in this Court pursuant to 28 U.S.C. § 1391.

    STATEMENT OF FACTS

    5. The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a Free State, the right of the people to keep and bear Arms shall not be infringed.”

    6. The Second Amendment guarantees individuals a fundamental right to carry functional handguns in non-sensitive public places for purposes of self-defense.

    7. The Second Amendment right to keep and bear arms applies as against the states by operation of the Fourteenth Amendment.

    8. Wisconsin Statute 941.23 prohibits the public from carrying of functional handguns concealed and should be repealed as it is unconstitutional on its face and in violation of Article I, Section 25 of the Wisconsin Constitution and the Second and Fourteenth Amendments of the United States Constitution as was decided in the United States Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), McDonald v. City of Chicago No. 08-1521 (U.S. June 28, 2010, and most recently in Wisconsin under State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    9. Currently carrying of a concealed handgun is a Class A misdemeanor offense, carrying a penalty for a Class A misdemeanor may include a fine up to $10,000, or imprisonment for up to 9 months, or both.

    10. If the legislature and governor approve a bill with government mandated regulations, citizens may have to qualify for a handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    11. Additionally, the (issuing authority) might be required to determine that the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.

    12. Plaintiff’s are law abiding citizens and currently have Constitutional open carry without government mandated regulation and should not be subjected to government mandated regulations for concealed carry of a functional firearm.

    COUNT I
    U.S. CONST., AMEND. II, 42 U.S.C. § 1983

    13. Paragraphs 1 through 12 are incorporated as though fully stated herein.

    14. Individuals cannot be required to prove their “good and substantial reason” for the exercise of fundamental constitutional rights, including the right to keep and bear arms.

    15. Individuals cannot be required to demonstrate that carrying a functional handgun concealed is “necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, as a prerequisite for exercising their Second Amendment rights.
    This will not succeed. First is that this is a carbon-copy of the Alan Gura/SAF Woollard v. Sheridan case (Maryland), which is a may-issue statute. Wisconsin will not pass a may-issue statute, that is an absolute political certainty. There's strong political certainty that if they did pass a "shall-issue" law, it would not have a "dangerous persons" provision, and have significant removals of laws which obstruct open carry.

    Such a lawsuit will not succeed, as it is premature and not matched up to the particular facts of what is possible in Wisconsin. Also, if Wisconsin did remove all obstructions to open carry, Heller cited with approval 4 different state supreme court cases which stated that concealed weapons prohibitions/regulation is OK as long as open carry is available. The federal gun free school zones litigation filed by WCI makes more sense, as it's narrowly tailored to what is going on currently. It is my hope that the legislature will make that lawsuit moot.

  4. #4
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    The great and all powerful OZ has spoken. Take your ball and go home.

  5. #5
    Founder's Club Member - Moderator Gray Peterson's Avatar
    Join Date
    May 2006
    Location
    Lynnwood, Washington, USA
    Posts
    2,238
    Quote Originally Posted by J.Gleason View Post
    The great and all powerful OZ has spoken. Take your ball and go home.
    Well, when someone creates a legal argument that's based on facts not in evidence, such as assuming that Wisconsin will write up a Maryland-style law (which prohibits OC or CC without license), do you not expect a response.

    As the OP said, he likes a good challenge. If I can take apart his legal argument, anyone else can. It's called debate training. It's nothing personal, so don't take it personally.

    Besides, he stated this in this thread

    Was a week argument, but, I really didn't try to make an argument, just going on the cases I read on the site I listed. Agreed though, it was a week post for Constitutional carry, let me work on a better one, stay tuned, I love a good challenge.
    It's called debate training and debate challenging. If it is unwanted he would have said so.....

  6. #6
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436

    Wisconsin Statute 941.23 is unconstitutional

    Quote Originally Posted by J.Gleason View Post
    The great and all powerful OZ has spoken. Take your ball and go home.
    "4 different state supreme court cases which stated that concealed weapons prohibitions/regulation is OK as long as open carry is available"

    With this statement above it's obvious he hasn't read State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    Here is the link, back at ya

    http://www.wisconsinappeals.net/wp-c...0/Schultz1.pdf
    Last edited by cowboyridn; 11-13-2010 at 06:27 PM. Reason: words

  7. #7
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Quote Originally Posted by cowboyridn View Post
    "4 different state supreme court cases which stated that concealed weapons prohibitions/regulation is OK as long as open carry is available"

    With this statement above it's obvious he hasn't read State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    Here is the link

    http://www.wisconsinappeals.net/wp-c...0/Schultz1.pdf
    +1000

  8. #8
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436
    Quote Originally Posted by J.Gleason View Post
    The great and all powerful OZ has spoken. Take your ball and go home.
    Must have taken his ball and went home

  9. #9
    Founder's Club Member - Moderator Gray Peterson's Avatar
    Join Date
    May 2006
    Location
    Lynnwood, Washington, USA
    Posts
    2,238
    Quote Originally Posted by cowboyridn View Post
    "4 different state supreme court cases which stated that concealed weapons prohibitions/regulation is OK as long as open carry is available"

    With this statement above it's obvious he hasn't read State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    Here is the link, back at ya

    http://www.wisconsinappeals.net/wp-c...0/Schultz1.pdf
    Your potential federal lawsuit is focused on striking down the underlying statutory prohibition in federal court rather than removing by court decree the "good and substantial" provisions of a potential Maryland style Wisconsin carry law (which again, the chances of that actually happening is a flat zero). This method of civil rights litigation is disfavored due to the standing problems one has in terms of challenging the law facially.

    The Wisconsin Supreme Court in Hamdan carved out businesses. Schultz is not binding on a federal judge in terms of a judicial determination on the effects of a state law (because of limited geographical territory coverage). Only the Wisconsin Supreme Court can give any guidance to a federal judge about the applicability of the state's disorderly conduct statute. The Madison 5 may be the state criminal case to do so if the Dane County Prosecutors do not drop the case and choose to appeal upwards to the SCOWI.

    The Hamdan court had already held that a shall-issue licensing statute for carry would be constitutional under the state's RKBA provision. State v. Cole is still binding case law until overwise overturned. The only way you can truly guarantee it is to repeal the ban in the Legislature and hold it for a long period of time. years of no permit carry, and suddenly a few decades later the legislature passing a licensing system, would likely result in it being struck down as a "constitutional normalty" issues.

  10. #10
    Banned
    Join Date
    May 2009
    Location
    Chilton, Wisconsin, USA
    Posts
    3,481
    Quote Originally Posted by cowboyridn View Post
    Must have taken his ball and went home
    LOL some how I doubt it.
    By the way are you going to file that suit or are you preparing it for someone else?

  11. #11
    Regular Member cowboyridn's Avatar
    Join Date
    Mar 2010
    Location
    Madison, Wisconsin, USA
    Posts
    436
    Quote Originally Posted by J.Gleason View Post
    LOL some how I doubt it.
    By the way are you going to file that suit or are you preparing it for someone else?
    I was just having fun writing something, didn't plan on filing it. If I found an attorney that would file it i would go with it.

    Don

  12. #12
    Regular Member GlockRDH's Avatar
    Join Date
    Sep 2010
    Location
    north of the Peoples Republic of Madison
    Posts
    626
    One thing to keep in mind is that 'keeping arms' is already in the state constitution. Id think it woudl be easy to achieve constitutional carry with that already there...Since that right is guaranteed, any permitting system would infringe on that right...

Posting Permissions

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