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Thread: COMPLAINT FOR DECLARATORY JUDGEMENT (would filing this hurt our efforts)

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    Regular Member cowboyridn's Avatar
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    COMPLAINT FOR DECLARATORY JUDGEMENT (would filing this hurt our efforts)

    Members and board for wisconsincarry.org

    I'd like to file this next thursday, but, I wonder if it will help our cause for constitutional carry or hurt it. In reading everything available it appears that our Legislators are going to propose a bill that would impose restrictions to concealed carry, but, if I file the attached document in court and have a judge declare the statute's listed unconstitutional, we wouldn't need the Legislators to pass a bill, we would automatically have constitutional carry.

    The question then becomes, even if a judge would find the statutes unconstitutional, would the Legistlators still go ahead with a bill with manditory training? if so, then filing this document would negate the efforts.

    Don
    Last edited by cowboyridn; 03-09-2011 at 01:28 AM.

  2. #2
    McX
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    i got this gut feeling, no ramming, we already are, just what were doing right now (?) But then again i read it, and it puts it on the judicial plate too. sad thing is, lawsuits sometimes dont go no where, but then again neither are we. call the boss and ask him on this one. Paging Nik- pick up the white courtesy phone.

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    Regular Member davegran's Avatar
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    Thumbs up File it, citizen

    File it! Please, file it!
    Dave
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    Given the emerging nature of Second Amendment law, I believe it is a grave mistake for anyone to challenge the constitutionality of any law on Second Amendment grounds without the assistance of legal counsel. Adverse rulings anywhere will be used everywhere to defend laws that could potentially be stricken down absent the adverse legal authority.

    Among many other problems I see with this case: the state would likely have the proposed case removed to federal court (federal question). The 7th Circuit is not a friendly venue for 2A litigation.

    I highly recommend against the OP's proposed course of action.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
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    Regular Member cowboyridn's Avatar
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    Quote Originally Posted by WVCDL View Post
    Given the emerging nature of Second Amendment law, I believe it is a grave mistake for anyone to challenge the constitutionality of any law on Second Amendment grounds without the assistance of legal counsel. Adverse rulings anywhere will be used everywhere to defend laws that could potentially be stricken down absent the adverse legal authority.

    Among many other problems I see with this case: the state would likely have the proposed case removed to federal court (federal question). The 7th Circuit is not a friendly venue for 2A litigation.

    I highly recommend against the OP's proposed course of action.

    James,
    It seems that all attorney’s attempt at some point to sway individuals against self representation. We all as citizens have the right to challenge the statutes we feel are unconstitutional, and also have the right to represent ourselves in court. I represented myself when I caught a criminal case. When I went to court the first thing the judge said was do you have an attorney, and began telling me how complicated a criminal case was and that I needed an attorney, as I wouldn’t understand or know what to do in court, and that he would hold me to the same standards as he would if I was an attorney. Every time I would appear before him I would hear the same story. After, I began to file motions; he backed off, perhaps thinking that this guy really knows what he is doing. It took me eight months, studying criminal law and several motions without an attorney, until finally at a motion to suppress evidence hearing the charges were dropped based on a constitutional error. Yes, constitutional error, I discovered that the police violated my constitutional rights, so, I’m not one to bend or run when there is an argument about constitutional rights. I’m well read in the law and understand completely what is in this document, I wrote it. Your argument is week, and unpersuasive, in addition upsetting, because whenever you state that a citizen needs and attorney; you cut down a citizen’s constitutional right to defend him or herself in court which is a fundamental right. I’m not at all shaken by your attempt to scare me into not filing this document.
    We currently have a statute in place that tells us we cannot carry concealed legally, if a Wisconsin judge determines that the statute is constitutional, then we are no better off than we are now, which given the precedence set by circuit judges, and District attorney mentioned in the document, is unlikely they will find the statutes constitutional, I believe they will find the statutes unconstitutional. If it is moved to federal court I also believe that based on McDonald that the federal courts will also find the statute unconstitutional. I’m completely disgusted with any attorney to come on this forum from another state and attempt to dissuade anyone from challenging a unconstitutional statute, worry about your own state and let me worry about Wisconsin.

    Don

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    Regular Member HandyHamlet's Avatar
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    "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."
    Abraham Lincoln

    "Some time ago, a bunch of lefties defied the law by dancing at the Jefferson Memorial, resulting in their arrests. Last week, a bunch of them pulled the same stunt and - using patented Lefist techniques - provoked the Park Police into having to use force to arrest them."
    Alexcabbie

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    Regular Member CalicoJack10's Avatar
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    OK, here is my thought, or opinion rather. The idea of your suit is a great one, and the truth is that with enough people filing that can show cause for needing a concealed weapon, I think that the courts would be hard pressed to just dismiss it due to the laws being found constitutional.

    For Example:
    I live in an area where it is not always socially acceptable to carry a firearm, but I also live in an area that is populated with children, sexual predators, and predatory animals (Bear, Coyote, Wolf, Mountain Lion). So I have an acceptable reason to want to have the ability to defend myself and those around me, and my best option would be to carry concealed.

    However, just one person filing would be hard to get through, and would be looked on as one person trying to cause a stink.

    As far as if/when you should file it, I think you would be best suited to wait to see what the legislature decides to do. More than any other reason, because you can be stalled and delayed at least until a law is passed or rejected, and at that point the courts can easily say that there decision is in keeping with what the legislature has decided. Much like (In my opinion) what is being done with the suit claiming that the GFSZ in wisconsin is unconstitutional.

    So to make it simple, wait to see what happens with the legislature, and if we don't get CC in Wisconsin, then make it a suit that is filed by several people and not just you.
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    Regular Member CalicoJack10's Avatar
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    Quote Originally Posted by HandyHamlet View Post
    For some reason I always get a kick out of the things you post. You are one funny mofo. I am glad I get to get on here evvery day and laugh thanks to you. (And Glock34, and Nutczak)
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    judgement

    I'm not intentionally trying to deail your cause. People have the right and freedom to pursue their objectives as they see fit within the law. I only add to the discussion that the wheels of justice turn excrutiatingly slow, just ask the "Madison five" guys. Chances are the concealed carry issue will be decided before the requested declaratory judgement reaches the bench for judicial decision. It may be a little late to the dance.

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    Regular Member oliverclotheshoff's Avatar
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    hey cowboy could you chime in on tis on quick


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    Regular Member 1FASTC4's Avatar
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    Warning, direct speak coming, no offense intended:
    What if this somehow actually got in the system and was taken seriously.....then the legislature decides not to put forth legislation for CCW, pending resolution of your submission? Remotely slim as the chances are, I don't want any such outcome. I'd never represent myself. I certainly don't want someone who "studied for 8 months" representing an issue I care so deeply about.

    If I'm being too uptight, I apologize.. I need some good BBQ.
    Last edited by 1FASTC4; 02-24-2011 at 08:31 AM.

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    Quote Originally Posted by 1FASTC4 View Post
    If I'm being too uptight, I apologize.. I need some good BBQ.
    I hear there is a place in Eagle River named "Little Pigs" right next to the NAPA store.
    Oh, wait, I heard they closed. So I guess you better drive west instead.

    Back on subject now, What could filing that possibly hurt? I know the gain it could create, but what could it hurt?

    If there is nothing to lose, I say go for it! Sitting idle and not saying anything does nothing

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    Regular Member cowboyridn's Avatar
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    Quote Originally Posted by 1FASTC4 View Post
    Warning, direct speak coming, no offense intended:
    What if this somehow actually got in the system and was taken seriously.....then the legislature decides not to put forth legislation for CCW, pending resolution of your submission? Remotely slim as the chances are, I don't want any such outcome. I'd never represent myself. I certainly don't want someone who "studied for 8 months" representing an issue I care so deeply about.

    If I'm being too uptight, I apologize.. I need some good BBQ.
    I accept all voices, for or against filing this document, I'm not offended at all, and I agree, the eight months I studied, I was fighting for my freedom, and to keep my license, not so with this issue, but I feel that the current statutes are unconstitutional. Feel free to look me up wcca, you'll see what happened to me, and what documents I filed, its all listed, I will say I'll never go through that again, and I hope no one here has to either, it isn't worth it.

    Will the Legislators delay bringing a bill to the governer, and wait for a court to decide, good question, and who knows what they will do.

    What would happen if they passed a bill requiring training and permits, while this was going through the courts and the court found the statutes unconstitutional, would the training and permits requirment then become unconstitutional, not sure about that myself.

    I think the legislators are going to be busy for the next several months with the current delema, and I don't see a bill being passed for concealed carry anytime soon, defenately not this spring, its on the back burner right now.

    You going to sit around and wait???? and wait and wait.....


    Don

  14. #14
    Founder's Club Member protias's Avatar
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    +1 for submitting it.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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    Regular Member 1FASTC4's Avatar
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    Quote Originally Posted by cowboyridn View Post
    I accept all voices, for or against filing this document, I'm not offended at all, and I agree, the eight months I studied, I was fighting for my freedom, and to keep my license, not so with this issue, but I feel that the current statutes are unconstitutional. Feel free to look me up wcca, you'll see what happened to me, and what documents I filed, its all listed, I will say I'll never go through that again, and I hope no one here has to either, it isn't worth it.

    Will the Legislators delay bringing a bill to the governer, and wait for a court to decide, good question, and who knows what they will do.

    What would happen if they passed a bill requiring training and permits, while this was going through the courts and the court found the statutes unconstitutional, would the training and permits requirment then become unconstitutional, not sure about that myself.

    I think the legislators are going to be busy for the next several months with the current delema, and I don't see a bill being passed for concealed carry anytime soon, defenately not this spring, its on the back burner right now.

    You going to sit around and wait???? and wait and wait.....


    Don
    Don, If you feel strongly about it, let 'er rip. Hell, I'm wrong all the time, just ask my wife. heheheh

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    McX
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    Quote Originally Posted by 1FASTC4 View Post
    Don, If you feel strongly about it, let 'er rip. Hell, I'm wrong all the time, just ask my wife. heheheh
    Ditto, my government routinely corrects me, and my efforts.

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    Regular Member paul@paul-fisher.com's Avatar
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    Don,

    I appreciate all the work you have done on this! All I can say is WOW!!!

    I do find it funny that you black out JB Van Hollen's name and not your home address.

    Here are a couple of thoughts:

    1. It is possible that JB will stipulate to this and it won't go to trial.
    2. It is possible that the laws you are challenging will be changed by the time it comes to a hearing.
    3. Do you live in Dane County? I thought the law was just changed so that you could sue the state in your home county instead of putting it through Dane County. The venue of Dane County might be troublesome. I would suggest a more conservative county. If you live in Dane County, never mind!

    Like you, I am frustrated that the legislature hasn't even introduced Constitutional Carry legislation. They seem to have time to pass other stuff.

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    Regular Member RR_Broccoli's Avatar
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    Don,

    I am a bit confused. Is there a back-story I missed? Would you mind posting a link to the thread/whatever?

    A tip on the Wiki links, there's a way to make a permalink to wiki that locks out other versions. By doing that, you can ensure that someone doesn't modify the articles in a way that won't help when the person clicks on it. I might also suggest paraphrasing what the links are supposed to say, just in case they go bubye.

    I agree wholeheartedly in spirit, but the timing of this makes me a bit nervous. A couple of weeks to see what the legislature will do might help. If they start looking like they are not addressing our issue, maybe then (and tell them they suck because they didn't repeal 941.23 and 167.31.) We have all waited a long time, and had a whole lot of disappointed come out of it, and we are certainly anxious; but I'd rather get it done right once with another year wait, over having a year of mandatory training, followed by a constitutional change along with losing OC, etc.

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    Founder's Club Member protias's Avatar
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    Quote Originally Posted by RR_Broccoli View Post
    Don,

    I am a bit confused. Is there a back-story I missed? Would you mind posting a link to the thread/whatever?

    A tip on the Wiki links, there's a way to make a permalink to wiki that locks out other versions. By doing that, you can ensure that someone doesn't modify the articles in a way that won't help when the person clicks on it. I might also suggest paraphrasing what the links are supposed to say, just in case they go bubye.

    I agree wholeheartedly in spirit, but the timing of this makes me a bit nervous. A couple of weeks to see what the legislature will do might help. If they start looking like they are not addressing our issue, maybe then (and tell them they suck because they didn't repeal 941.23 and 167.31.) We have all waited a long time, and had a whole lot of disappointed come out of it, and we are certainly anxious; but I'd rather get it done right once with another year wait, over having a year of mandatory training, followed by a constitutional change along with losing OC, etc.
    Who said anything about waiting? We could very well get Constitutional Carry while the felon dems are hiding not doing their job.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

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    Regular Member HandyHamlet's Avatar
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    Quote Originally Posted by cowboyridn View Post
    I accept all voices,

    Don
    Except those from out of state attorneys... you mean?

    "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."
    Abraham Lincoln

    "Some time ago, a bunch of lefties defied the law by dancing at the Jefferson Memorial, resulting in their arrests. Last week, a bunch of them pulled the same stunt and - using patented Lefist techniques - provoked the Park Police into having to use force to arrest them."
    Alexcabbie

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    Regular Member oak1971's Avatar
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    Quote Originally Posted by protias View Post
    Who said anything about waiting? We could very well get Constitutional Carry while the felon dems are hiding not doing their job.
    If only the will to do it was there.
    In God I trust. Everyone else needs to keep your hands where I can see them.

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    Regular Member RR_Broccoli's Avatar
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    Quote Originally Posted by protias View Post
    Who said anything about waiting? We could very well get Constitutional Carry while the felon dems are hiding not doing their job.
    Yes they could get us CC while the Dems are out.

    They aren't.

    They are doing some voting, but I haven't seen a peep about CC anywhere, or any gun issue for that matter. I am trying to be realistic in getting my hopes up only to the level that I think the probability warrants. They may be politicians that are sorta on "our side", but they're still politicians with all the flaws that go along with that.

    They are too busy fighting over the one big issue in front of them. Whether those other things are worthwhile or not is a matter of opinion...and how long people wait before getting irritated at the Republicans too... also a matter of personality.

    Me, I'll get impatient when I actually have a pocket pistol in my hands. Working through a long-gun purchase right now instead.... the pistol is next.
    Last edited by RR_Broccoli; 02-24-2011 at 06:01 PM.

  23. #23
    McX
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    Guys, dont flame upon me, but this matter should be run by the Chairman of WisCarry, he may be able to give help, insight, or opinions, that will ultimately aid in this matter, plus WisCarry may want envolvement, or at least to be apprised of your efforts. One United my brothers, and our flag is Wisconsin Carry!

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    Regular Member 1FASTC4's Avatar
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    Quote Originally Posted by Nutczak View Post
    I hear there is a place in Eagle River named "Little Pigs" right next to the NAPA store.
    Oh, wait, I heard they closed. So I guess you better drive west instead.
    Thanks, I immediately felt better.

  25. #25
    Regular Member cowboyridn's Avatar
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    I did some research and found that what we are attempting with filing a challenge to the states concealed carry statute as unconstitutional has already been done in Ohio where the concealed carry statute was found unconstitutional by the Ohio Supreme Court, and after this happened; their Legislators, immediately enacted a new permit statute.

    Filing this document to challenge the statutes, even if we win, as they did in Ohio, the whole process would be for nothing and a waist of time as the Wisconsin Legislators could and would still enact some type of concealed carry statute to regulate concealed carry in Wisconsin as the Legislators did in Ohio.

    Here is the link to an “ANATOMY OF A CONSTITUTIONAL CHALLENGE TO CARRYING CONCEALED FIREARMS LAWS” for Ohio.

    http://www.chuckkleinauthor.com/feely.html


    OHIO'S CHALLENGE TO THE CONSTITUTIONALITY OF ORC 2923.12, et. al.
    (Carrying Concealed Weapons).

    http://www.chuckkleinauthor.com/klein_case_documents.html#CONTACTS

    I learned a lot from reading this, enough to know that it would be pointless to file a challenge to Wisconsin’s concealed carry statute.

    I currently have a concealed carry permit issued under the Law Enforcement Officers Safety Act, so whatever the Legislators in Wisconsin enact for concealed carry won’t affect me, so, I feel for you guys, having to wait and see what the legislator are going to enact.

    Here is their current concealed carry permit law:

    A Summary of the Law:

    The Sheriff's Office will coordinate all background checks and issuances of CCW permits for private citizens in their respective counties.
    « Firearms will not be permitted in liquor establishments/liquor is being dispensed, school safety zones, courtroom, structure where courtroom is located, police station, sheriff's office, state highway patrol station, bureau of criminal identification and investigation, state correctional institute, jail, workhouse, other detention facility, airport passenger terminal, premises of any public or private college/university or institute of higher education, church/synagogue/mosque or other place of worship unless the handgun is in a locked motor vehicle or the licensee is in the immediate process of placing the handgun in a locked motor vehicle.
    « Any retired peace officer, person, federal law enforcement officer, corrections officer, active/reserve member of the armed forces who has retired within three years and had successfully completed a basic firearms training program is potentially eligible for a CCW permit.
    « A CCW permit shall be issued by a Sheriff's Office within 45 days after all proper paperwork and training is completed.
    « License is valid for 5 years with a 30-day grace period for renewal at the end of the 5-year license period. There is no renewal-training requirement to obtain an additional five-year CCW license.
    « There is a $15.00 replacement fee for any lost CCW license permit.
    « The training requirement must consist of a minimum of 12 hours of both classroom and range instruction to include the following:
    1. Ability to name, explain and demonstrate the rules for safe handling of a handgun.
    2. The ability to demonstrate and explain how to handle ammunition in a safe manner.
    3. The ability to demonstrate the knowledge, skills and aptitude necessary to shoot a handgun in a safe manner.
    4. Range Time, live fire training and gun handling training.
    5. Pass a competency examination that shall include a written section on the ability to name and explain the rules for the safe handling of a handgun and proper storage practices for handguns and ammunition.
    6. Pass a physical demonstration of competence in the use of a handgun and in the rules for safe handling and storage of a handgun and a physical demonstration of the aptitude necessary to shoot a handgun in a safe manner.

    Persons Not Eligible to Obtain a License to Carry a Concealed Weapon

    The sheriff cannot grant a license to carry a concealed firearm to any of the following persons.
    1. A person under 21 years of age;
    2. A person who is a fugitive from justice;
    3. A person against whom proceedings are pending for any felony, any misdemeanor that is an offense of violence, or the offense of falsification of a concealed firearm license or possessing a revoked concealed firearm license (see "New offenses of falsification of a concealed firearm license and possessing a revoked concealed firearm license" below);
    4. A person who has been convicted of a felony of violence or has been adjudicated a delinquent child for committing an act that would be felony of violence if committed by an adult, if the person has not been relieved from disability to have a weapon;
    5. A person who has been convicted or pleaded guilty to an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for committing an act that would be an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse if committed by an adult;
    6. A person who is drug dependent, in danger of drug dependence, or a chronic alcoholic;
    7. A person who is under adjudication of mental competence.



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