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Constitutional question

M

Max

Regular Member
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335
Location
, Wisconsin, USA
When you look at some other state constitutions, you find that the stated right is accompanied by a stated government power to regulate the right. A few of examples,

Georgia-"The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne."

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons."

How is it that our state constitutional provision mentions no state power to regulate yet they do regulate it? If states do not need constitutional authority to regulate, why did the above states feel it necessary to include the authority in their constitutions?
 
GLOCK21GB

GLOCK21GB

Campaign Veteran
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Green Bay, Wisconsin, USA
Max said:
When you look at some other state constitutions, you find that the stated right is accompanied by a stated government power to regulate the right. A few of examples,

Georgia-"The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne."

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons."

How is it that our state constitutional provision mentions no state power to regulate yet they do regulate it? If states do not need constitutional authority to regulate, why did the above states feel it necessary to include the authority in their constitutions?
Click to expand...

Very good ! You win the prize for best post in a month.
 
Shotgun

Shotgun

Wisconsin Carry, Inc.
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Location
Madison, Wisconsin, USA
Max said:
How is it that our state constitutional provision mentions no state power to regulate yet they do regulate it? If states do not need constitutional authority to regulate, why did the above states feel it necessary to include the authority in their constitutions?
Click to expand...

I think the answer to the first question is simple: All states have police power, and whether they mention it in their RKBA portion of their constitution is largely irrelevant. It would be relevant only if a state's constitution said the state shall have no police power over the RKBA. I don't believe any of them say that! I think the police power mentioned in the examples you give serves only as a reminder to everyone that the state has the power, or at least the intention, to make and enforce laws regarding anything it sees fit.

The second question contains an error in the way it is formulated. It contains a false premise: "If states do not need constitutional authority to regulate..." Unless you can find a state that has a monarchy or other form of government other than a representational democracy, all states do need constitutional authority to regulate, and all states have it. It would be very interesting, don't you think, if say, Kansas, decided to abolish it's legislative, judicial and executive branches and to have someone become king? All hail the King of Kansas!
 
T

Teej

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, Wisconsin, USA
Simple...

Until the Amendment ~ 13 years ago, we had no such 'right' accepted by the state.

8 years ago, the WI Supreme Court decided that the amendment would only override 941.23 under certain circumstances.
 
Shotgun

Shotgun

Wisconsin Carry, Inc.
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Teej said:
Until the Amendment ~ 13 years ago, we had no such 'right' accepted by the state.

8 years ago, the WI Supreme Court decided that the amendment would only override 941.23 under certain circumstances.
Click to expand...

I think it might be somewhat more accurate to say that we had the right before Article I, Sec. 25, but we didn't have the constitutional protection of the right.

You have the right to do anything, until it becomes prohibited. Likewise the state can regulate anything in any manner it wishes, until something prohibits it. That's where Art. I, Sec. 25 came in.
 
M

Max

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, Wisconsin, USA
I understand exactly what you are saying Auric and I am sure you are correct. (You usually are) I guess more specifically I would question why those states thought it necessary to assign themselves regulatory powers in the right to bear arms clauses when they already had those powers?

Perhaps something changed in the body of law from when those states added their right to bear arms until we did?
 
Last edited:
Shotgun

Shotgun

Wisconsin Carry, Inc.
Joined
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Madison, Wisconsin, USA
Well like I said I think it serves as a reminder. And probably it makes it easier in court to include some weasel words if somebody wanted to make a constitutional challenge to one of their laws. The state would say, "look we never said it would be an unregulated right." To me it's unnecessary, but then to me much of what's put into the law is unnecessary.

In my mind, a bigger question is why are there some states that do NOT include any RKBA in their constitution? And why did it take so long to get it in Wisconsin?
 
M

Max

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Messages
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Location
, Wisconsin, USA
I think, like Wisconsin's situation, if you have the legal ability to carry, why do you need the right to carry? If the legal ability is threatened then the defense of that behavior is establishing a right to engage in it. As the AG's rep in either Hamdan or Cole said, "there is nothing that would stop the legislature from banning all firearms if they wished to do that. Though that would be a bad political decision.." or something like that.
 
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