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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 It also argues that Wisconsin Statute 941.23 is unconstitutional and needs to be repealed.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
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
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