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 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.
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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.