Captain Nemo
Regular Member
One of the key infringing issues concerning carry of firearms for personal protection is the vehicle transport statute 167.31. I have been researching it and reading the actions that took place last year when Sen. Decker and company tried to modify it as SB222. Of course we have a new legislature now so it’s impossible to second guess the attitude of the current membership. We do know the resistance by the DNR, the Natural Resources Board and the Conservation Congress hasn’t diminished. It would be dangerous to underestimate the influence that tribunal has had on past legislatures and probably the current one as well. For that reason I do think that campaigning for total repeal of 167.31 will be futile. There is too much in that statute the DNR needs for managing state wildlife. The influence of the DNR, NRB and CC in union is tremendous. It is that union that recruited law enforcement to it’s side in order to kill Sen. Decker’s Bill (SB222 did not have much in it for us and I mention it only to example the power that tribunal has). Any Bill asking for total repeal of ss167.31 will not make it past the first reading. I think trying to attach repeal of ss167.31 to a bill asking for repeal of ss941.23 would doom that bill to failure also.
It isn’t the total statute that is of impact to our interests. Only two paragraphs are impacting to our mission. Specifically 167.31(2)(a) and 167.31(2)(b). It should also be noted that this forum has been so focused on ss167.31 that it has totally overlooked two other concerns that need to be addressed. First: statute 23.33(3)(e) which requires that a firearm must be unloaded and encased when transported on a ATV. Second: A snowmobile is classified as a vehicle even though it isn’t normally intended to be driven or drawn along a public roadway. Some inclusion of snowmobiles should be made in any plans involving relaxation of vehicle transport of firearms laws.
I think it would be futile to ask for carte blanche repeal of both ss941.23 and 167.31 in the same Bill. I think it would be much more successful if we campaign for repeal in total of ss941.23 and separately campaign for repeal of the specific paragraphs 167.31(2)(a) & (b) and 23.33(3)(e).
There may be a win-win approach to the vehicle transport dilemma and I’d like to present it for discussion. First I have to set some foundation.
--In evaluating the reach of a statute both the legislature and the Wisconsin supreme court put much credence of legislative intent during the draft of a statute. There is no question when one reads the Act and Bill that created ss167.31 and 23.33(3)(e) that the legislative intent was to enact them as tools for DNR game management and not as a public safety measure. In fact one only needs to read statute 167.31(2)(a) & (b) to come to that conclusion, especially the following: “bow or crossbow in or on a vehicle”. Why would such words even appear in a public safety statute. It’s ridiculous to even think of it. I own a crossbow and a five foot longbow. How in the world would I ever maneuver either one in the cab of my pickup truck in order to stop a car jacking or effect some personal protection. I’d be more danger to myself than any one else. It’s obvious the weapons listed in 167.31 (2)(a) & (b) and 23.33(3)(e) are intended to be those commonly used to hunt animals not for personal protection.
-- Statutes 167.31(2)(b) and 23.33(3)(e) are unconstitutional in that under certain conditions they functionally disallows exercise of Article I section 25. The Wisconsin supreme court (WSC) ruled in Hamdan that it shall not do that: The WSC said the following in para.41 of Hamdan.
-------------------------------------------------------------------------------------------------------
“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”.
-------------------------------------------------------------------------------------------------------------------------------
Certainly a person needing an ATV or snowmobile to reach their hunting areas has a more compelling need than State has in enforcing the statutes.
--The WSC ruled in a number of cases that three conditions must be present in order to convict for concealed carry; the firearm must be in reach, the person must know the firearm is present, the firearm must be hidden from ordinary view. In order to preserve ss167.31 some have argued that if the firearm is out of reach it negates the conditions. In the case of ATV’s and snowmobiles as well as bicycles, motorcycles, horse buggies etc. it is impossible to carry a firearm out of reach, especially a long gun. So in effect the State infringes on Art I sect 25 because it prohibits carry of a concealed weapon on those vehicles and it also prohibits the carry of a visible weapon. The State functionally disallows the exercise of Art I sect 25 for at least the exercise of hunting.
--ss167.31(2)(b) is superfluous. It isn’t needed for game management There are other statutes that adequately cover illegal shooting of game from a vehicle.
167.31(2)(c) Except as provided in sub. (4), no person may load or discharge
a firearm or shoot a bolt or an arrow from a bow or crossbow
in or from a vehicle.
167.31(2)(d) Except as provided in sub. (4) (a), (bg), (cg), (e), and (g),
no person may discharge a firearm or shoot a bolt or an arrow from
a bow or crossbow from or across a highway or within 50 feet of
the center of a roadway.
People that are out to illegally take game from a vehicle are unlikely to have concern of the fact that they are breaking the law because their firearm wasn’t unloaded and enclosed in a carrying case.
Here is my idea;
Ss 167.31(2)(b) and 23.33(3)(e) are intended as DNR game management tools. They should be enforced only under that context. They were never intended to be a public safety issue. For the WSC to imply as much is judicial construction. Using the strength of the WSC erroneous conclusion law enforcement is enforcing 167.31(2)(b) as a public safety statute and therein lies our problem. Absolute repeal of 167.31 or 23.33 to achieve our goal is probably futile. There are sections of each statute that the DNR, the Natural Resources Board and the Conservation Congress need in order to manage state wildlife. They will vigorously fight any such repeal. They may be somewhat more receptive to repealing only paras. 167.31(2)(a) & (b) and ss23.33(3)(e) if their unconstitutionality can be successfully argued, but I think they will vigorously fight any carte blanche repeal. and I think their influence with the legislature will prevail. .
It may be more successful to lobby to make ss167.31(2)(b) a penalty enhancer to violations of ss167.31(2)(c) and ss167.31(2)(d). If it can be determined that the firearm was transported unlawfully while violating one or both of the other statutes then it could be used as an enhancer, such as doubling the penalty. Likewise, the same can be done with 23.33(3)(e). I think this suggestion may defuse most of the DNR objection. It stills keeps the statutes alive for game management but takes them out of the public safety arena.
Correspondence I have had with the DNR implies that the DNR is interested in 167.31(2)(b) as it applies to game management. Attaching it as a subset to two obvious game management statutes keeps it in that arena. The transport of uncased firearms in public areas not open to hunting is of minimum concern to the DNR. On the other hand Law enforcement will likely be in strong objection to any change to ss167.31(2)(b) but it’s enforcement is a misapplication of the intent of the law.
23.33 All-Terrain Vehicles.
(3) RULES OF OPERATION. No person may operate an all-terrain vehicle:
(e) With any firearm in his or her possession unless it is
unloaded and enclosed in a carrying case, or any bow unless it is
unstrung or enclosed in a carrying case.
167.31 Vehicle Transport of Firearms.
(2) PROHIBITIONS; MOTORBOATS AND VEHICLES; HIGHWAYS AND
ROADWAYS. (a) Except as provided in sub. (4), no person may
place, possess or transport a firearm, bow or crossbow in or on a
motorboat with the motor running, unless the firearm is unloaded
or unless the bow or crossbow is unstrung or is enclosed in a carrying
case.
(b) Except as provided in sub. (4), no person may place, possess
or transport a firearm, bow or crossbow in or on a vehicle,
unless the firearm is unloaded and encased or unless the bow or
crossbow is unstrung or is enclosed in a carrying case.
(c) Except as provided in sub. (4), no person may load or discharge
a firearm or shoot a bolt or an arrow from a bow or crossbow
in or from a vehicle.
(d) Except as provided in sub. (4) (a), (bg), (cg), (e), and (g),
no person may discharge a firearm or shoot a bolt or an arrow from
a bow or crossbow from or across a highway or within 50 feet of
the center of a roadway.
It isn’t the total statute that is of impact to our interests. Only two paragraphs are impacting to our mission. Specifically 167.31(2)(a) and 167.31(2)(b). It should also be noted that this forum has been so focused on ss167.31 that it has totally overlooked two other concerns that need to be addressed. First: statute 23.33(3)(e) which requires that a firearm must be unloaded and encased when transported on a ATV. Second: A snowmobile is classified as a vehicle even though it isn’t normally intended to be driven or drawn along a public roadway. Some inclusion of snowmobiles should be made in any plans involving relaxation of vehicle transport of firearms laws.
I think it would be futile to ask for carte blanche repeal of both ss941.23 and 167.31 in the same Bill. I think it would be much more successful if we campaign for repeal in total of ss941.23 and separately campaign for repeal of the specific paragraphs 167.31(2)(a) & (b) and 23.33(3)(e).
There may be a win-win approach to the vehicle transport dilemma and I’d like to present it for discussion. First I have to set some foundation.
--In evaluating the reach of a statute both the legislature and the Wisconsin supreme court put much credence of legislative intent during the draft of a statute. There is no question when one reads the Act and Bill that created ss167.31 and 23.33(3)(e) that the legislative intent was to enact them as tools for DNR game management and not as a public safety measure. In fact one only needs to read statute 167.31(2)(a) & (b) to come to that conclusion, especially the following: “bow or crossbow in or on a vehicle”. Why would such words even appear in a public safety statute. It’s ridiculous to even think of it. I own a crossbow and a five foot longbow. How in the world would I ever maneuver either one in the cab of my pickup truck in order to stop a car jacking or effect some personal protection. I’d be more danger to myself than any one else. It’s obvious the weapons listed in 167.31 (2)(a) & (b) and 23.33(3)(e) are intended to be those commonly used to hunt animals not for personal protection.
-- Statutes 167.31(2)(b) and 23.33(3)(e) are unconstitutional in that under certain conditions they functionally disallows exercise of Article I section 25. The Wisconsin supreme court (WSC) ruled in Hamdan that it shall not do that: The WSC said the following in para.41 of Hamdan.
-------------------------------------------------------------------------------------------------------
“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”.
-------------------------------------------------------------------------------------------------------------------------------
Certainly a person needing an ATV or snowmobile to reach their hunting areas has a more compelling need than State has in enforcing the statutes.
--The WSC ruled in a number of cases that three conditions must be present in order to convict for concealed carry; the firearm must be in reach, the person must know the firearm is present, the firearm must be hidden from ordinary view. In order to preserve ss167.31 some have argued that if the firearm is out of reach it negates the conditions. In the case of ATV’s and snowmobiles as well as bicycles, motorcycles, horse buggies etc. it is impossible to carry a firearm out of reach, especially a long gun. So in effect the State infringes on Art I sect 25 because it prohibits carry of a concealed weapon on those vehicles and it also prohibits the carry of a visible weapon. The State functionally disallows the exercise of Art I sect 25 for at least the exercise of hunting.
--ss167.31(2)(b) is superfluous. It isn’t needed for game management There are other statutes that adequately cover illegal shooting of game from a vehicle.
167.31(2)(c) Except as provided in sub. (4), no person may load or discharge
a firearm or shoot a bolt or an arrow from a bow or crossbow
in or from a vehicle.
167.31(2)(d) Except as provided in sub. (4) (a), (bg), (cg), (e), and (g),
no person may discharge a firearm or shoot a bolt or an arrow from
a bow or crossbow from or across a highway or within 50 feet of
the center of a roadway.
People that are out to illegally take game from a vehicle are unlikely to have concern of the fact that they are breaking the law because their firearm wasn’t unloaded and enclosed in a carrying case.
Here is my idea;
Ss 167.31(2)(b) and 23.33(3)(e) are intended as DNR game management tools. They should be enforced only under that context. They were never intended to be a public safety issue. For the WSC to imply as much is judicial construction. Using the strength of the WSC erroneous conclusion law enforcement is enforcing 167.31(2)(b) as a public safety statute and therein lies our problem. Absolute repeal of 167.31 or 23.33 to achieve our goal is probably futile. There are sections of each statute that the DNR, the Natural Resources Board and the Conservation Congress need in order to manage state wildlife. They will vigorously fight any such repeal. They may be somewhat more receptive to repealing only paras. 167.31(2)(a) & (b) and ss23.33(3)(e) if their unconstitutionality can be successfully argued, but I think they will vigorously fight any carte blanche repeal. and I think their influence with the legislature will prevail. .
It may be more successful to lobby to make ss167.31(2)(b) a penalty enhancer to violations of ss167.31(2)(c) and ss167.31(2)(d). If it can be determined that the firearm was transported unlawfully while violating one or both of the other statutes then it could be used as an enhancer, such as doubling the penalty. Likewise, the same can be done with 23.33(3)(e). I think this suggestion may defuse most of the DNR objection. It stills keeps the statutes alive for game management but takes them out of the public safety arena.
Correspondence I have had with the DNR implies that the DNR is interested in 167.31(2)(b) as it applies to game management. Attaching it as a subset to two obvious game management statutes keeps it in that arena. The transport of uncased firearms in public areas not open to hunting is of minimum concern to the DNR. On the other hand Law enforcement will likely be in strong objection to any change to ss167.31(2)(b) but it’s enforcement is a misapplication of the intent of the law.
23.33 All-Terrain Vehicles.
(3) RULES OF OPERATION. No person may operate an all-terrain vehicle:
(e) With any firearm in his or her possession unless it is
unloaded and enclosed in a carrying case, or any bow unless it is
unstrung or enclosed in a carrying case.
167.31 Vehicle Transport of Firearms.
(2) PROHIBITIONS; MOTORBOATS AND VEHICLES; HIGHWAYS AND
ROADWAYS. (a) Except as provided in sub. (4), no person may
place, possess or transport a firearm, bow or crossbow in or on a
motorboat with the motor running, unless the firearm is unloaded
or unless the bow or crossbow is unstrung or is enclosed in a carrying
case.
(b) Except as provided in sub. (4), no person may place, possess
or transport a firearm, bow or crossbow in or on a vehicle,
unless the firearm is unloaded and encased or unless the bow or
crossbow is unstrung or is enclosed in a carrying case.
(c) Except as provided in sub. (4), no person may load or discharge
a firearm or shoot a bolt or an arrow from a bow or crossbow
in or from a vehicle.
(d) Except as provided in sub. (4) (a), (bg), (cg), (e), and (g),
no person may discharge a firearm or shoot a bolt or an arrow from
a bow or crossbow from or across a highway or within 50 feet of
the center of a roadway.
