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Thread: Wisconsin concealed carry court cases.

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    Wisconsin concealed carry court cases.

    This is a list of what I consider the major Wisconsin court decisions involving a charge of concealed weapons. They are listed in chronological order. If you have additions to the list please add them.

    1. Mularkey v State 1930
    2. State v Asfoor 1977
    3. State v Fry 1986
    4. State v Keith 1993
    5. State v Walls 1994
    6. State v Coleman 1996

    Article I section 25 put into effect November 30, 1998

    7. State v Dundon 1999
    8. State v Nollie 2002
    9. State v Gonzales 2002
    10. State v Hamdan 2003
    11. State v Cole 2003
    12. State v Fisher 2006
    13. State v Vegas 2007
    14. State v Pinnow 2011

    I include State v Alloy and State v Douglas D. Alloy for reference only because it is unpublished and Douglas D. because it established the parameters of disorderly conduct.

    15. State v Alloy 2000
    16. State v Douglas D 2001

    Score: State 10 Concealed carry 4.

    If you read and study these cases I believe that you will come to the same conclusion as I. In Vegas and Pinnow the MLK circuit court got it right. The Wisconsin Supreme Court (WSC) is confused over the whole issue of concealed carry by ordinary citizens. It is especially confused on the impact of Art I sec 25 on concealed carry. It has gone to extremes to maintain a police state in spite of the amendment.

    All comments are my opinion.

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    Cap, I see things a bit differently then you do. I think the WSC did the best thing they could with what they had to work with. SC justices should not mess with statutes unless it is a slam dunk that a statute is unconstitutional. They correctly found that a ban on conceal carry is not unconstitutional as we are free to carry openly. However, they also found that there are certain circumstances that could render the ban unconstitutional as demonstrated in Hamdan.

    The MLK followed the WSC's lead in their Vegas and Pinnow decisions. The WSC walked the fence in trying not to usurp the authority of the legislature and to insure the rights afforded us all in the Wisconsin constitution to keep and bear arms.

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    Max: In my opinion it is a slam dunk. If the legislature had intended that art I sec 25 not pertain to concealed carry it would be written so. i.e. Except for concealed weapons the people have ----. Judged by the drafts the legislature certainly knew of the existence of 941.23.

    Here is the cheif justice's statement on the issue in her published comments in Cole.


    51 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). I join Justice Prosser's concurrence except that part of his concurrence in which he states that he "strongly support[s] much of the majority opinion."[15] I have reservations about parts of the majority opinion.

    52 For example, it does not make sense to me that the majority opinion gives a statute that predates a constitutional amendment the presumption of constitutionality under the later-enacted constitutional amendment.[16] The presumption of constitutionality is based on the reasonable belief that a legislature intends to enact laws that are valid under the Constitution at the time they are enacted, not the unreasonable assumption that a legislature can anticipate all future constitutional amendments and draft constitutionally immortal statutes.

    -------------------------------------------------------------------------------------------------------------------------------

    Patrick Crooks in Cole;

    55 N. PATRICK CROOKS, J. (concurring). While I strongly disagree with the majority's conclusion that Wis. Stat. 941.23 is constitutional, for the reasons set forth in my dissent in State v. Hamdan, 2003 WI 113, ___ Wis. 2d ___, ____N.W.2d ___,


    Bablich in Hamdan:

    92. The Chief Justice's dissent, in its attempt to save the Carrying a Concealed Weapon statute, eviscerates the constitutional amendment. It renders the constitutional amendment a sham by reading into it the words "unless concealed." The inevitable and logical result of that interpretation is to create absurdities neither the legislature nor the voters could have intended.

    93. Based on the Chief Justice's interpretation, it is lawful to have a gun on top of your night table or bureau, but not in a drawer; it is lawful to have a gun case in the home if the guns inside can be seen, but unlawful if the guns are behind a solid door and cannot be seen. With all due respect, that just doesn't make sense.

    94. The majority is absolutely correct in concluding that this could not have been the result intended by the legislators who wrote the constitutional amendment nor the voters who ratified it. The dissent by Justice Crooks, who would find the statute unconstitutional, by implication quite obviously agrees that this could not have been the intent behind the constitutional amendment.

    Crooks in Hamdan

    99. N. PATRICK CROOKS, J. (concurring/dissenting). For the reasons set forth below, I respectfully concur/dissent, since I agree with the majority's result that Hamdan's conviction should be reversed, but I dissent on the majority's action in remanding this matter.

    100. The majority in this case improperly reads exceptions into Wis. Stat. 941.23 in order to hold that it is constitutional. Such exceptions to the statute should not be made by this court, but by the legislature. Looking at the statute itself, I conclude that Wis. Stat. 941.23 has become unconstitutional with the passage of Article I, Section 25 of the Wisconsin Constitution. I agree with Chief Justice Abrahamson's dissent that the majority erroneously assigns to a court, rather than a jury, the task of determining factual issues involving whether a defense to a charge of carrying a concealed weapon is available to a defendant.

    101. I agree with her dissent that this court should not attempt to engraft exceptions onto Wis. Stat. 941.23, in order to try to make it conform to constitutional strictures. Chief Justice Abrahamson's dissent, 115. If the statute does not conform to the Wisconsin Constitution, as amended, then the statute is unconstitutional. See State v. Zarnke, 224 Wis. 2d 116, 139-140, 569 N.W.2d 370 (1999); State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997).

    102. I strongly disagree, however, with Chief Justice Abrahamson's conclusion that the statute survives the constitutional amendment and remains constitutional. In light of Article I, Section 25 of the Wisconsin Constitution, I conclude that Wis.Stat.941.23 is unconstitutional because it is unnecessarily broad and rigid now and provides no exceptions as it is written. The statute is not a reasonable exercise of the state's police power. If the majority were to refrain from attempting to find exceptions in the statute where none exist, it too would presumably find it unconstitutional.

    103. The breadth of the statute is incompatible with the broad constitutional right to bear arms. Its prohibition extends to anyone at any time and, therefore, improperly and unnecessarily impinges on a person's right to bear arms "for security, defense, hunting, recreation or any other lawful purpose."40 The statute has been held to prohibit a gun placed on the front seat of a car,41 in a glove compartment,42 or on a shelf behind the driver's seat.43 One "goes armed" even when going nowhere with the concealed weapon.44

    Note that the chief justice can't even keep her story straight from one case to another.

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    Quote Originally Posted by Max View Post
    Cap, I see things a bit differently then you do. I think the WSC did the best thing they could with what they had to work with. SC justices should not mess with statutes unless it is a slam dunk that a statute is unconstitutional. They correctly found that a ban on conceal carry is not unconstitutional as we are free to carry openly. .
    Uhh no, they didn't find correctly. Nowhere in the constitution is there a mention on the manner of carry.

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    This is a nice reference list. I linked it in my New to OC in WI thread for quick easy reference.
    Click Here for New to WI Open Carry Legal References and Informational Videos--- FAQ's http://Tinyurl.com/OpenCarry-WI

    The Armed Badger A WI site dedicated to Concealed Carry in WI

    "To disarm the people... was the best and most effectual way to enslave them." -- George Mason, Speech of June 14, 1788

    http://Tinyurl.com/New-To-Guns to DL useful Info

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    "Judged by the drafts the legislature certainly knew of the existence of 941.23." Indeed they did and yet left it in place because they did not want the constitutional right to apply to concealed weapons. While the opinions of the minority judges are interesting, and may even be correct, they have no relevance to the place we find ourselves in regarding conceal carry.

    "In my opinion it is a slam dunk. If the legislature had intended that art I sec 25 not pertain to concealed carry it would be written so." Captain

    "Uhh no, they didn't find correctly. Nowhere in the constitution is there a mention on the manner of carry." 1FASTC4

    Both of the statements presume that the boundaries of rights should be included in the right itself. That is rarely the case and specific boundaries of rights are covered in statutes and other bodies of law.

    Could you claim that, "If article 1 sec 25 did not apply to carrying in bars, public buildings and schools, it would be written so."? Could you claim that, "Nowhere in the constitution is there a mention of the place of carry."? Of course not, these restrictions are found in the statutes, not the right. I am with you guys in the fact I do not like the current situation but I do not think it has been created in error and I fear that anything short of constitutional carry will not fix it.

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    Quote Originally Posted by Max View Post
    "Judged by the drafts the legislature certainly knew of the existence of 941.23." Indeed they did and yet left it in place because they did not want the constitutional right to apply to concealed weapons. While the opinions of the minority judges are interesting, and may even be correct, they have no relevance to the place we find ourselves in regarding conceal carry.

    "In my opinion it is a slam dunk. If the legislature had intended that art I sec 25 not pertain to concealed carry it would be written so." Captain

    "Uhh no, they didn't find correctly. Nowhere in the constitution is there a mention on the manner of carry." 1FASTC4

    Both of the statements presume that the boundaries of rights should be included in the right itself. That is rarely the case and specific boundaries of rights are covered in statutes and other bodies of law.

    Could you claim that, "If article 1 sec 25 did not apply to carrying in bars, public buildings and schools, it would be written so."? Could you claim that, "Nowhere in the constitution is there a mention of the place of carry."? Of course not, these restrictions are found in the statutes, not the right. I am with you guys in the fact I do not like the current situation but I do not think it has been created in error and I fear that anything short of constitutional carry will not fix it.
    Respectfully, Any law which is restriction on the method of carry is unconstitutional and I therefore do not recognize it's authority.. Below is what I concur with. State vs Schultz

    (T)his court agrees with Justice Clarence Thomas’s McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged by any State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment.

    In sum, sec. 941.23 is unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution.
    As I've stated in other threads: I'm not excited about being a poster child for fighting 941.23 as unconstitutional, but I won't abide by it, now or ever.
    Last edited by 1FASTC4; 04-01-2011 at 08:11 PM.

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    Quote Originally Posted by 1FASTC4 View Post
    Respectfully, Any law which is restriction on the method of carry is unconstitutional and I therefore do not recognize it's authority.. Below is what I concur with. State vs Schultz



    As I've stated in other threads: I'm not excited about being a poster child for fighting 941.23 as unconstitutional, but I won't abide by it, now or ever.
    I respect your opinion and you may be correct. As you know, the law is what the courts say it is and is subject to change. Should someone win a court case based on your position then you will be proven correct. But for right now, it appears the law considers an unloaded and encased firearm within reach to be a violation of the CCW statute.

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    Regular Member 1FASTC4's Avatar
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    Quote Originally Posted by Max View Post
    As you know, the law is what the courts say it is and is subject to change. .
    Yes, that's why I like State vs Schultz. a precedent has been set which specifically rules 941.23 is unconstitutional.
    Last edited by 1FASTC4; 04-01-2011 at 09:49 PM.

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