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Thread: Open Carry In A Vehicle

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    Regular Member Interceptor_Knight's Avatar
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    Open Carry In A Vehicle

    I have seen people make reference to OC in a vehicle but I can not find any change to current statutes which declares a holstered handgun in a vehicle to not be concealed.....

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    Regular Member BROKENSPROKET's Avatar
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    It's on page 4 in the enrolled SB93.

    It's has nothing to do with the permit. 167.31 was ammended to exclude hanguns to eliminate 'The Dance'.

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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by BROKENSPROKET View Post
    It's on page 4 in the enrolled SB93.

    It's has nothing to do with the permit. 167.31 was ammended to exclude hanguns to eliminate 'The Dance'.
    167.31 has zero to do with concealed though. It has everything to do with loaded and cased. In order to effectively carry concealed in a car or truck with the permit, you must also be allowed to have it loaded and in a holster or otherwise accessible. OC on a motorcycle or bicycle, etc is pretty straight forward. I see no clarification that OC does not = CC when you are in a car or truck and the handgun is "hidden from ordinary view"..

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    167.31(1)(b)
    (b) "Encased" means enclosed in a case that is expressly made for the purpose of containing a firearm and that is completely zipped, snapped, buckled, tied or otherwise fastened with no part of the firearm exposed.

    Except for certain flapped type. Holsters do not comply with this paaragraph. They generally do not sheild a firearm from ordinary view so they don't meet one of the rules of concealment. I know, some of you are going to cite Walls, and Fischer and Vegas. The rules of concealment apply whether you are walking, in or on a vehicle, in or on a boat, in your own home etc.

    The DNR has "Rule Making Authority". RMA means that a rule made by a derpartment with that authority is considered law until found otherwise in a court of law.

    The DNR says this in the 2010 hunting rules.

    "Arms transportation:
    • All firearms must be unloaded and completely enclosed within carrying cases designed
    to carry a firearm when in or on any vehicle whether moving or stationary.
    A holster is not a legal carrying case for a handgun in a vehicle unless it completely
    encloses the handgun."

    The statement says that a holster is not a proper means of concealment. The whole purpose of a carrying case in this paragraph is to conceal the weapon.

    SB93 made the following change to 167.31(2)(b). by adding "unless the firearm is a handgun as defined in s. 175.60 (1) (bm)".

    167.31 (2) (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 a handgun,
    as defined in s. 175.60 (1) (bm), unless the firearm
    is unloaded and encased, or unless the bow or crossbow
    is unstrung or is enclosed in a carrying case.

    By the most simple logic handguns are exempted from being encased while in or on a vehicle. The encasement rule no longer applies to a handgun carried in a holster.

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    Regular Member Interceptor_Knight's Avatar
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    167 is only 1 of the 2 Statutes which prevent us from holster carry in a car. No exception was made to the CCW statute clarifying that holster carry in a car (or any other carry) is not CC.

    Quote Originally Posted by Captain Nemo View Post
    The DNR has "Rule Making Authority". RMA means that a rule made by a derpartment with that authority is considered law until found otherwise in a court of law.

    The DNR says this in the 2010 hunting rules.

    "Arms transportation:
    • All firearms must be unloaded and completely enclosed within carrying cases designed
    to carry a firearm when in or on any vehicle whether moving or stationary.
    A holster is not a legal carrying case for a handgun in a vehicle unless it completely
    encloses the handgun."

    The statement says that a holster is not a proper means of concealment. The whole purpose of a carrying case in this paragraph is to conceal the weapon.
    .
    The "hunting rules" have no authority. They are simply a helpful guide to the actual rules. It is the NR10 Administrative code and WI Statutes which you are held to. Concealment has absolutely zero to do with "enclosed". The Statute uses the wording "exposed". This does not mean unable to be viewed or concealed as a transparent case meets the letter of the law. Exposed simply means not covered by the case. If your case is too small and the barrel sticks out, it is exposed. If the case is zipped up bt there is a rip in the side, the firearm may be exposed. The Statute is intended to prevent access, not hide the firearm. The portion of the "rule" book you quoted actually referrences Statute 167 which the DNR has zero control over.
    Last edited by Interceptor_Knight; 06-27-2011 at 05:24 PM.

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    Regular Member Outdoorsman1's Avatar
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    The way I see it...

    Statute 167.31 is the main reason we cannot open carry (loaded and holstered) in a vehicle. That staute is being repealed with SB-93.... gone... non-existant....

    None of the above has anything do do with concealed carry with permit....

    When SB-93 goes into effect, you will not need a permit to OC in a vehicle as the statute 167.31 will be eliminated... The "Dance" will be gone....

    This was my biggest gripe when it became known that the repeal of statute 167.31 was going to be included in the 4 month waiting period... NOTHING to do with the new permits, but yet those who want to maintain Open Carry, still have to wait before they can do it in a vehicle.....

    Outdoorsman1
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    Quote Originally Posted by Interceptor_Knight View Post
    167 is only 1 of the 2 Statutes which prevent us from holster carry in a car. No exception was made to the CCW statute clarifying that holster carry in a car (or any other carry) is not CC.
    Excellant point, and I agree. I was wondering how that would work also. With a permit, there's no issue, because anybody with a permit is exempted from 941.23 in most places, including vehicles, with the exception of the designated "off limits" & "posted" locations. But the permit holders (residents or non-residents with recipricol permits) are the only ones exempted from 941.23's ban on cc. The only other significant change to 941.23 is it gives an exemption to those who are at home, in their business, or on their own property - by statute, not just SC's Hamdan ruling (important distinction). It does not extend that exemption from the cc statute to inside vehicles for non-permittees.

    It'll be interesting to see how this turns out... but I would not place a loaded pistol under my car seat on Nov.1st.

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    Quote Originally Posted by Outdoorsman1 View Post
    The way I see it...

    Statute 167.31 is the main reason we cannot open carry (loaded and holstered) in a vehicle. That staute is being repealed with SB-93....

    Outdoorsman1
    Sorry, but that's not true. See State v. Cole or State v. Fisher. Carrying an uncased firearm in a vehicle has always been a violation of 941.23 (concealed carry ban) AND 167.31. Even an unloaded and cased firearm is a violation of 941.23 if it's within reach. 941.23 is the more serious, because it's a class A misdemeanor (criminal offense), while 167.31 is a civil forfeiture (basically a "ticket" like littering or jaywalking).
    Last edited by safcrkr; 06-27-2011 at 05:49 PM.

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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by Outdoorsman1 View Post
    The way I see it...

    Statute 167.31 is the main reason we cannot open carry (loaded and holstered) in a vehicle. That staute is being repealed with SB-93.... gone... non-existant....

    None of the above has anything do do with concealed carry with permit....

    When SB-93 goes into effect, you will not need a permit to OC in a vehicle as the statute 167.31 will be eliminated... The "Dance" will be gone....

    This was my biggest gripe when it became known that the repeal of statute 167.31 was going to be included in the 4 month waiting period... NOTHING to do with the new permits, but yet those who want to maintain Open Carry, still have to wait before they can do it in a vehicle.....

    Outdoorsman1
    167.31 IS NOT BEING REPEALED It will be the same as it was for long guns, bows and crossbows. It is simply being ammended to make an exception for handguns. Nothing more.

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    Regular Member Outdoorsman1's Avatar
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    Quote Originally Posted by safcrkr View Post
    Sorry, but that's not true. See State v. Cole or State v. Fisher. Carrying an uncased firearm in a vehicle has always been a violation of 941.23 (concealed carry ban) AND 167.31. Even an unloaded and cased firearm is a violation of 941.23 if it's within reach. 941.23 is the more serious, because it's a class A misdemeanor (criminal offense), while 167.31 is a civil forfeiture (basically a "ticket" like littering or jaywalking).
    Thank you for the information. I have been stopped by LEO (He recived a report from a concerned citizen that I was carrying a loaded gun in my car)...

    I had the unloaded and cased firearm on the passenger seat well within reach. He confirmed (by checking with my permission) that it was unloded. I went on my merry way.... I guess I was lucky he was not a game warden or DNR guy..(???)....

    Outdoorsman1
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    This very subject has been discussed at length, hundreds of times, on other forums. Carrying an uncased firearm (loaded or not) in a vehicle in WI has always been a violation of TWO state statutes... 167.31 & 941.23.

    You know the definition of 167.31.. no need to rehash that.

    To violate 941.23, three things must be present.

    1.) A firearm (or other weapon) hidden from ordinary observation.

    2.) The actor knows it's there.

    3.) It's within reach.

    The WI Supreme Court has ruled numerous times that inside a vehicle constitutes #1, and the passenger compartment = #3. Not hard to prove you knew it was there if it's your gun and your vehicle.

    We used to joke on another forum, that the only perfectly and technically legal way to transport any firearm in a vehicle in WI is in a clear gun case duct-taped to the hood or roof. The sad part is it wasn't really a joke, but a fact.
    Last edited by safcrkr; 06-27-2011 at 06:23 PM.

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    Quote Originally Posted by Outdoorsman1 View Post
    Thank you for the information. I have been stopped by LEO (He recived a report from a concerned citizen that I was carrying a loaded gun in my car)...

    I had the unloaded and cased firearm on the passenger seat well within reach. He confirmed (by checking with my permission) that it was unloded. I went on my merry way.... I guess I was lucky he was not a game warden or DNR guy..(???)....

    Outdoorsman1
    You, sir, are lucky. That was a clear violation of 941.23 as it's written. Fortunately for us (and you in particular) it's not always enforced as such... which is why you aren't in jail and still own that gun. But what will happen after SB93 goes into effect? A big part of the reason 941.23 is not enforced as strict as it can be, is DAs have shyed away from prosecutions of cc ever since Hamdan, for fear a case might go to the S. C. and what they might do to 941.23. I have no idea if that will change. But as Interceptor Knight said, there is no exemption from 941.23's ban on cc in vehicles (for non-permittees) in SB 93 that either he or I can find. Just an exception to 167.31. And trust me... he's very good at dechiphering the laws.

    Read up on the recent Andres Vegas case in Milwaukee, or read the other two decisions in my previous post (Cole & Fisher).

    Better keep it on the dashboard if you don't get a permit, or until we see how this will be enforced.
    Last edited by safcrkr; 06-27-2011 at 06:13 PM.

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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by safcrkr View Post
    Better keep it on the dashboard if you don't get a permit, or until we see how this will be enforced.
    I could mount a holster on my dasboard. But I have been open carrying in a vehicle for 9 months and have had LEO's witness it and do nothing but smile at me.

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    http://nxt.legis.state.wi.us/nxt/gat...tats&jd=941.23

    Above is link to 941.23. See "annotations" concerning State v. Walls, State v. Fry, State v. Keith for judicial precedance on 941.23.

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    Founder's Club Member protias's Avatar
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    Quote Originally Posted by safcrkr View Post
    This very subject has been discussed at length, hundreds of times, on other forums. Carrying an uncased firearm (loaded or not) in a vehicle in WI has always been a violation of TWO state statutes... 167.31 & 941.23.

    You know the definition of 167.31.. no need to rehash that.

    To violate 941.23, three things must be present.

    1.) A firearm (or other weapon) hidden from ordinary observation.

    2.) The actor knows it's there.

    3.) It's within reach.

    The WI Supreme Court has ruled numerous times that inside a vehicle constitutes #1, and the passenger compartment = #3. Not hard to prove you knew it was there if it's your gun and your vehicle.

    We used to joke on another forum, that the only perfectly and technically legal way to transport any firearm in a vehicle in WI is in a clear gun case duct-taped to the hood or roof. The sad part is it wasn't really a joke, but a fact.
    Not true. That was a court opinion, not a law or court decision.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by protias View Post
    Not true. That was a court opinion, not a law or court decision.
    Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
    http://legis.wisconsin.gov/statutes/Stat0941.pdf
    To “go armed” does not require going anywhere. The elements for a violation of
    s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach;
    2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden.
    State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).
    What is not case law is the definition of "hidden". This is the only thing left to debate.

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    Quote Originally Posted by Interceptor_Knight View Post
    Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
    http://legis.wisconsin.gov/statutes/Stat0941.pdf

    What is not case law is the definition of "hidden". This is the only thing left to debate.
    Not true. Any future court could change the debate on anything that you have argued. The mindset of the court has been shifting towards the Constitution. I would argue that it will continue to do so.

  18. #18
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    since those in authority usually dont know the law, and random chances act in our favor, none of this has ever had to be challenged directly. but it will change soon anyway. i'm fancying an Open Carry motorcycle experience(s) personally.

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    Regular Member Have Gun - Will Carry's Avatar
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    Quote Originally Posted by McX View Post
    since those in authority usually dont know the law, and random chances act in our favor, none of this has ever had to be challenged directly. but it will change soon anyway. i'm fancying an Open Carry motorcycle experience(s) personally.
    I'll second that! Something I've been looking forward to, also.
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    Founder's Club Member Brass Magnet's Avatar
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    Yup, this is the same argument as before SB93 and it applies in pretty much the same way. Before; and I'm paraphrasing, the courts said that there is no reason we couldn't comply with both. Wrong...but anyway....

    A handgun on the seat of a car that was indiscernible from ordinary observation
    by a person outside, and within the immediate vicinity, of the vehicle was hidden from
    view for purposes of determining whether the gun was a concealed weapon under this
    section. State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).
    I think that's pretty clear cut; unfortunately. If a gun on a car seat was concealed, then one on your belt that's touching the car seat probably is too.


    I'm sure, just as before, people will say that they won't enforce it. Maybe they won't. But just as before, they COULD enforce it, which is the problem.

    ETA: One other thing. If it's the courts duty to interpret legislative intent; in light of SB93, they must rightfully decide that the court in State v. Walls was wrong in it's definition of concealed or that a handgun is somehow immune.
    Last edited by Brass Magnet; 06-28-2011 at 02:35 PM.
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    Founder's Club Member protias's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
    http://legis.wisconsin.gov/statutes/Stat0941.pdf

    What is not case law is the definition of "hidden". This is the only thing left to debate.
    Under 941.23, but not under 167.31. 167.31 says nothing about being within reach.
    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 BROKENSPROKET's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    Dude... It's irrefutable truth. it is published case law.... Here is the actual quote from the WI Statute...
    http://legis.wisconsin.gov/statutes/Stat0941.pdf

    What is not case law is the definition of "hidden". This is the only thing left to debate.
    Dude, case law is not irrefutable truth. Any court or attorney can refute it.

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    Oh not this stuff again! Where is there a court case that can be cited in court that says an encased gun is considered "within reach?" That's why the DNR wanted them to be encased in the first place, to keep them inaccessible and "out of reach."
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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by Shotgun View Post
    Oh not this stuff again! Where is there a court case that can be cited in court that says an encased gun is considered "within reach?" That's why the DNR wanted them to be encased in the first place, to keep them inaccessible and "out of reach."
    Shotgun, we are talking about Open Carry in a vehicle.

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    Wisconsin Carry, Inc. Shotgun's Avatar
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    I know, I read it. But it's dredging up the worn-out discussion about vehicle transport that has been rehashed a thousand times here.

    I think that the new statutes will make that entire discussion moot.
    A. Gold

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