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Thread: Wisconsin Legislative Council - concealed permit holders may carry in schools zones!

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    Wisconsin Legislative Council - concealed permit holders may carry in schools zones!

    http://legis.wisconsin.gov/lc/public.../IM2011_10.pdf

    Pretty good summary of the impact of SB 93.

    I have identified one error:

    "Residency" re n.8 (stating that license holder must be resident of Wisconsin to come under licensee exemption to federal school zone gun ban): 18 USC 922(q) does not mention any residency requirement in relation to the federal school zone firearm carry licensee safe harbor; admittedly, the text of the statute states that the license must be issued by the state where the school zone is located - however, this does not mean the license holder must be a resident of that state.

    Many states issue gun carry licenses to residents of other states, e.g., Virginia, Utah, and Florida, often at slightly marked up rates, helping to fund the license scheme. Lititgation is pending in Colorado which would strike down residency discrimination as unconstitutional under federal law, e.g., the (1) privileges and immunities clause, and (2) the privileges or immunities clause.

    I assume from the memo that Wisconsin concealed carry licenses are only being issued to residents of Wisconsin - however, some of these "residents" may obtain a license and then become residents of other states after acquiring their licenses and those licenses will remain valid until they expire, this change of residency notwithstanding. Additionally, some of these "residents" may only be "actual residents" of Wisconsin, e.g., college students, military personnel and their family members, retirees, etc., and be domiciliary residents of other states, holding the usual indices of domicile, driver's lciense, voter crds, etc. But if they hold the Wisconsin gun carry license, at least re federal law, they have safe harbor to carry guns in Wisconsin school zones and in the school buildings all the way to the blackboard.

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    As far as I can tell, Mike, that's not an error. Although the footnote does mention "possess" and not "carry" in describing the FGSZA.

    One of those exceptions applies to individuals who are licensed to possess a firearm by the state in which the school zone is located, where the law of that state requires that, before an individual obtains such a license, the law enforcement authorities of the state verify that the individual is qualified under law to receive the license.
    That's true enough to my reading of the FGFSZA, minus the possess/carry mentioned above.

    This exception would appear to apply to people who become concealed carry licensees under the bill and who are Wisconsin residents.
    Here's they're listing something that's definitely true - if you get a WI license (which implies WI residency) you're exempt.

    If you're not a WI resident:

    The bill also includes a provision stating that for purposes of federal law, an out-of-state licensee is considered to be licensed by the State of Wisconsin. It is not clear whether this statement is sufficient to invoke the exception to the federal school zone law with respect to out-of-state licensees.
    Also true. The reason it's not clear if it's sufficient is because for an out of state licensee, WI hasn't "verified" (eg run a background check) prior to "licensing" a non-resident.

    Your wording, however, does contain a possible error. You state:
    admittedly, the text of the statute states that the license must be issued by the state where the school zone is located
    That's not what the statute says. It says "...licensed by the state..." not "...possesses a license issued by the state...". A technical distinction, but it's significant enough that it'll take a court case to determine the actual meaning.
    Last edited by Teej; 07-06-2011 at 10:39 AM.

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    [QUOTE=Teej;1567664]As far as I can tell, Mike, that's not an error. . . .Here's they're listing something that's definitely true - if you get a WI license (which implies WI residency) you're exempt.
    QUOTE]

    My point is that a Wisconsin "resident" (which might only be actual residence not domicile residence) can get a permit under the new law - and then move out of state - and be an actual resident of another state and carry in Wisconsin, and fall under the 18 SUC 922(q) safe harbor; or alternatively, be a legal but not actual resident of Wisconsin.

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    The test that the court has developed for determining if this
    exception applies to a particular situation requires the defendant to show that the defendant’s interest in
    concealing the weapon substantially outweighs the state’s interest in enforcing the concealed weapons
    statute and that the defendant concealed his or her weapon because concealment was the only reasonable
    means under the circumstances to exercise his or her right to bear arms. To date, this exception has not
    been applied to locations other than those limited locations where a person without a license is
    authorized under the bill to carry a concealed firearm, as noted above.
    Oh really??
    cough, cough, State v. Vegas cough cough.
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    Quote Originally Posted by Mike
    My point is that a Wisconsin "resident" (which might only be actual residence not domicile residence) can get a permit under the new law - and then move out of state - and be an actual resident of another state and carry in Wisconsin, and fall under the 18 SUC 922(q) safe harbor; or alternatively, be a legal but not actual resident of Wisconsin.
    Agreed, but it's a gray area. There's nothing in the statute that I can find invalidating an issued permit when someone moves...but it won't get renewed.
    Last edited by Teej; 07-06-2011 at 12:20 PM.

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    Quote Originally Posted by NavyLCDR View Post
    A Washington resident holding a Washington CPL is not exempt from the Federal GFSZ law in Wisconsin due to the fact that a Wisconsin LEO agency did not verify the individual was eligible, regardless of if Wisconsin recognizes the Washington CPL or not.
    The language in the bill is explicit in attempting to allow said Washington resident/licensee to carry in FGFSZ territory in Wisconsin. Whether or not it is valid is for the courts to decide, but there is absolutely no other purpose for this language:

    (d) For purposes of 18 USC 922 (q) (2) (B) (ii), an out-of-state licensee is licensed by this state.
    State law can't override federal...but they tried to cover you.
    Last edited by Teej; 07-06-2011 at 12:21 PM.

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    Quote Originally Posted by NavyLCDR View Post
    Mike is correct. Residency has nothing to do with the Federal Gun Free School Zone Act. The person must be licensed by the state the school zone is located in, and a law enforcement agency of the state the school zone is located in must have verified that the individual is eligible for the license.

    A Washington resident holding a Washington CPL is not exempt from the Federal GFSZ law in Wisconsin due to the fact that a Wisconsin LEO agency did not verify the individual was eligible, regardless of if Wisconsin recognizes the Washington CPL or not.

    A Washington resident that possess a Wisconsin license/permit would be exempt in Wisconsin if a Wisconsin LEO Agency verified the Washington resident was eligible, regardless of if the Washington resident was a resident of Wisconsin or not.

    A Washington resident that possess a Washington CPL could be exempt from the Federal law in Wisconsin if a Wisconsin LEO agency verified the person was eligible for the license and endorsed their Washington CPL.
    What about this language in the bill:
    175.60 (2) (d) For purposes of 18 USC 922 (q) (2) (B) (ii), an
    out−of−state licensee is licensed by this state.
    It seems pretty clear that it is intended to satisfy the Federal law, since the Wisconsin DOJ is a law enforcement authority of the state:
    18 USC § 922 (q)(2) --

    (A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

    (B) Subparagraph (A) does not apply to the possession of a firearm—
    (i) on private property not part of school grounds;
    (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
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    Quote Originally Posted by davegran View Post
    What about this language in the bill:It seems pretty clear that it is intended to satisfy the Federal law, since the Wisconsin DOJ is a law enforcement authority of the state:
    and for reciprocity....WI will honor any states permit "that required a background check to obtain"....

    there's the background check being done...

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    Quote Originally Posted by Mike
    I assume from the memo that Wisconsin concealed carry licenses are only being issued to residents of Wisconsin
    Correct.
    But we'll recognize any permit that required a background check (do you know of any that are issued without?). And they tried to let everyone carry in the "GF"SZ. But as someone else pointed out, it won't work. We can't just accept another state's background check.
    It'll take getting arrested AND getting charged w/ the federal crime before it can be challenged in court.
    Mike, do you know (or can you find out) how many people have ever been charged w/ the federal "GF"SZ law, let alone convicted?

    ...at least re federal law, they have safe harbor to carry guns in Wisconsin school zones and in the school buildings all the way to the blackboard.
    But state law still makes it a felony to be on "school grounds".
    I'd define that as inside the inner edge of the public sidewalk.
    As long as I don't meet a cop who thinks otherwise, I'll be fine.
    If they'd MARK the edge of what they think is school grounds, it'd help a lot!
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    Quote Originally Posted by MKEgal View Post
    Correct.
    But we'll recognize any permit that required a background check (do you know of any that are issued without?). And they tried to let everyone carry in the "GF"SZ. But as someone else pointed out, it won't work. We can't just accept another state's background check.
    It'll take getting arrested AND getting charged w/ the federal crime before it can be challenged in court.
    Mike, do you know (or can you find out) how many people have ever been charged w/ the federal "GF"SZ law, let alone convicted?


    But state law still makes it a felony to be on "school grounds".
    I'd define that as inside the inner edge of the public sidewalk.
    As long as I don't meet a cop who thinks otherwise, I'll be fine.
    If they'd MARK the edge of what they think is school grounds, it'd help a lot!
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    Quote Originally Posted by Teej View Post
    The language in the bill is explicit in attempting to allow said Washington resident/licensee to carry in FGFSZ territory in Wisconsin. Whether or not it is valid is for the courts to decide, but there is absolutely no other purpose for this language:



    State law can't override federal...but they tried to cover you.

    It is worth noting that since the original FGFSZ was struck down by the SCOTUS and re-enacted claiming interstate commerce authority, there has not been a single case of prosecution under the FGFSZ without significant other charges included. Add to that the fact that only federal officers can enforce federal law and the state law specifically authorizes the carry, your odds of being charged under the FGFSZ while carrying under a recognized non-resident license are statistically zero.
    Last edited by rpyne; 07-08-2011 at 06:50 PM.

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    Quote Originally Posted by rpyne View Post
    Add to that the fact that only federal officers can enforce federal law


    What?!?!

    Dude, if a cop sees you violating a federal statute, the _very least_ they can do is detain you while they call in the feds.

    You make it sound like unless a fed sees you you can stick your thumbs in your ears and say 'nanny nanny boo boo' at the local cops.

    If people aren't getting hasseled over FGFSZA violations....great. But that's not the same thing as saying they can't be.

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    Why Does Everybody Want to Get One Over on the Man?

    Quote Originally Posted by Mike View Post
    http://legis.wisconsin.gov/lc/public.../IM2011_10.pdf

    I assume from the memo that Wisconsin concealed carry licenses are only being issued to residents of Wisconsin -
    This is correct. Thus the reference to Wisconsin residents.
    however, some of these "residents" may obtain a license and then become residents of other states after acquiring their licenses and those licenses will remain valid until they expire, this change of residency notwithstanding.
    Sez who? Given that licenses are issued only to WI residents by design, it would undercut the state law to permit those who have lost residency to continue to carry on a WI license. At least, I would not want to let my liberty and wallet rest on such a theory. Your view would open up the "resident for the weekend" cottage industry. I think that WI authorities would take a dim view of such fraud.

    Additionally, some of these "residents" may only be "actual residents" of Wisconsin, e.g., college students, military personnel and their family members, retirees, etc., and be domiciliary residents of other states, holding the usual indices of domicile, driver's lciense, voter crds, etc. But if they hold the Wisconsin gun carry license, at least re federal law, they have safe harbor to carry guns in Wisconsin school zones and in the school buildings all the way to the blackboard.
    You are either a resident under the concealed carry law or you are not. While the law itself does not set out criteria, it seems likely that the indicia of residency used for other purposes would be applied. I pity the fool who tries to be too clever by half by claiming to be a cheesehead to get a WI license while nearly every piece of documentary evidence points the other way. Especially if they haven't been paying WI taxes. Once your WI CWL is stripped, so is any protection you had. Not worth it.

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    Egad!

    Quote Originally Posted by rpyne View Post
    It is worth noting that since the original FGFSZ was struck down by the SCOTUS and re-enacted claiming interstate commerce authority, there has not been a single case of prosecution under the FGFSZ without significant other charges included.
    Are you sure? I seem to recall a list of such cases circulating on OCDO, including one poor woman arrested in her home (public housing). But I am not going to try to find it and will accept your claim.

    Add to that the fact that only federal officers can enforce federal law.
    False. Wrong. Incorrect. Mistaken. Nonfactual. This chestnut is right up there with "signs have no legal weight."
    Federal officers can (and do) enforce state law.
    State officers can (and do) enforce federal law.
    Note that I did not say "are required in all cases to do so."

    and the state law specifically authorizes the carry, your odds of being charged under the FGFSZ while carrying under a recognized non-resident license are statistically zero.
    Alabama law once specifically authorized (required, actually) segregation. Don't be like George Wallace. Learn about the supremacy clause.

    Post hac probability doesn't fly. Especially with small numbers. Gee I haven't had a stroke for 87 years. Thus, I will never have a stroke.
    Last edited by apjonas; 07-08-2011 at 11:36 PM.

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    Quote Originally Posted by apjonas View Post

    Sez who? Given that licenses are issued only to WI residents by design, it would undercut the state law to permit those who have lost residency to continue to carry on a WI license. At least, I would not want to let my liberty and wallet rest on such a theory. Your view would open up the "resident for the weekend" cottage industry. I think that WI authorities would take a dim view of such fraud.



    You are either a resident under the concealed carry law or you are not. While the law itself does not set out criteria, it seems likely that the indicia of residency used for other purposes would be applied. I pity the fool who tries to be too clever by half by claiming to be a cheesehead to get a WI license while nearly every piece of documentary evidence points the other way. Especially if they haven't been paying WI taxes. Once your WI CWL is stripped, so is any protection you had. Not worth it.

    To further that argument...says right in the bill that giving up residency is grounds for revocation.

    (14) LICENSE REVOCATION AND SUSPENSION. (a) The
    department shall revoke a license issued under this sec-
    tion if the department determines that sub. (3) (b), (c), (d),
    (e), (f), or (g) applies to the licensee.
    with (3)(f) being:

    (f) The individual is not a Wisconsin resident.

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    Quote Originally Posted by mrjam2jab View Post
    To further that argument...says right in the bill that giving up residency is grounds for revocation.



    with (3)(f) being:
    Good catch. I didn't even think to look for that one.

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    Quote Originally Posted by mrjam2jab View Post
    To further that argument...says right in the bill that giving up residency is grounds for revocation.
    with (3)(f) being:
    Thanks for unpacking that cite, mrjam2jab; and thanks to the forum owner, John, for his guidelines that we use citations when discussing RKBA legislation.... It sure cuts out the BS speculation (mostly).
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    Very Good Find

    Quote Originally Posted by mrjam2jab View Post
    To further that argument...says right in the bill that giving up residency is grounds for revocation.
    with (3)(f) being:

    The only question (because these requirements are listed as issuing criteria) might be whether it applies to licenses that were issued to a nonresident or to a license where residency is lost after issuance. Or both. I say both. Curious that there is no command to revoke if the licensee was under 21 when issued even if he is still under 21 when his true age is discovered.

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    Interesting article:



    Gun owners could violate law
    StoryDiscussionGun owners could violate law
    By JOAN BARRON Casper Star-Tribune The Billings Gazette | Posted: Sunday, July 10, 2011 11:45 pm | No Comments Posted

    Font Sizeefault font sizeLarger font size
    .CHEYENNE, Wyo. — A traveler driving along Interstate 25 at Cheyenne will come within 1,000 feet of Jessup Elementary School.

    If that Wyoming driver is carrying a weapon in the vehicle without a concealed weapon permit, he or she is in violation of a little-known federal law.

    The Federal Gun Free School Zone Act of 1995 makes it a crime to possess a functional firearm on public property, such as sidewalks, roads, highways, parks or fairgrounds, located within 1,000 feet of the property line of any elementary, middle or high school.

    The penalty for violations is up to five years in federal prison and the permanent loss of the offender’s right to own a firearm.

    The National Coalition for Amending the Federal Gun Free School Zone Act of 1995 is alerting Wyoming residents to the existence of the federal ban, given that the state’s new law allowing residents to carry handguns without permits is in effect.

    “Anyone who carries in a populated area without a Wyoming permit is unavoidably committing multiple federal felonies,” said Grant Chapman of Oklahoma.

    Chapman is working with the coalition and other gun rights organizations, including the Western Wyoming Riflemen’s Association based in Afton, to get the federal law changed.

    An exemption in the law applies to gun permit holders, but only in the states where they obtained the permits.

    Although Wyoming concealed-carry permits are recognized in 34 other states, the owners risk federal prosecution of the gun-free school zone law in all of them, Chapman said.

    The federal law apparently never has been enforced in Wyoming.

    The U.S. attorney’s office has not filed charges under the law for at least 15 years, spokesman John Powell said last week.

    Powell said the scenario of the I-25 driver who has a weapon in his vehicle and inadvertently breaks the law boils down to a matter of “common sense.”

    “Why would we charge anyone with that?” Powell said.

    Cheyenne Police Chief Brian Kozak said the department has never been in a position where it had to enforce the federal law.

    Tim Hare of the Western Wyoming Riflemen’s Association said he first learned of the federal law last year from Chapman.

    “I started investigating, and sure enough. It doesn’t matter if you have a carry permit in Wyoming” and get stopped in a school zone in another state.

    “If you’re from out of state and you’re in a gun-free school zone and are in possession of a weapon, you are guilty of a federal felony,” Hare said.

    “They (Congress) wrote it up so the permit does not matter,” he said.

    The law is another example of government chipping away at citizens’ constitutional rights, he said.

    Hare said his group is only about 5 years old and is trying to develop a firing range in the Star Valley area.

    Mark Spungin of Guernsey, president of the Wyoming State Shooting Association, said the federal law is unconstitutional and should be repealed.

    The U.S. Supreme Court, he said, ruled the law unconstitutional but Congress passed it again.

    “It’s been ignored ever since it passed,” Spungin said. “I don’t see it being an issue here.”

    The operative word in concealed carry is “concealed,” he pointed out.

    Alan Korwin, an Arizona gun rights activist and author, said the federal law was never intended to be enforced.

    “It’s a feel-good, do-nothing law and because of that, it should be rescinded,” Korwin said.

    He said the law has been used in other states as an add-on to drug charges, for example.

    Korwin commended Wyoming for passing a “constitutional carry law,” but because of it questions could be raised about restrictions in the federal law, he said.

    “If Wyoming was going to do it right, they would stand on states’ rights and say we reject this law because it makes no sense. That would get the attention of the federal government,” Korwin said.

    Chapman said that while he agreed the law has historically been a low enforcement priority, it is necessary to change it because permit holders don’t want to violate any law.

    Moreover, because of the law’s penalty, people who carry in violation of it are taking a serious legal gamble which they should not be forced to take, Chapman said.

    The national coalition is pushing for amendments to exempt any firearm carried in accordance with the laws of the state where the school is located.

    Another exemption would be for off-duty law enforcement officers who now also are barred from carrying weapons within 1,000 feet of schools.



    .Posted in Wyoming on Sunday, July 10, 2011 11:45 pm Updated: 11:55 pm. | Tags: Concealed Weapon Permit, Federal Gun Free School Zone Act Of 1995, National Coalition For Amending The Federal Gun Free School Zone Act Of 1995



    Read more: http://billingsgazette.com/news/stat...#ixzz1RnNxqBCy
    Last edited by Captain Nemo; 07-11-2011 at 07:37 AM.

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    Regular Member davegran's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    Interesting article:



    Gun owners could violate law
    StoryDiscussionGun owners could violate law
    By JOAN BARRON Casper Star-Tribune The Billings Gazette | Posted: Sunday, July 10, 2011 11:45 pm | No Comments Posted

    Font Sizeefault font sizeLarger font size
    .CHEYENNE, Wyo. — A traveler driving along Interstate 25 at Cheyenne will come within 1,000 feet of Jessup Elementary School.

    If that Wyoming driver is carrying a weapon in the vehicle without a concealed weapon permit, he or she is in violation of a little-known federal law.

    The Federal Gun Free School Zone Act of 1995 makes it a crime to possess a functional firearm on public property, such as sidewalks, roads, highways, parks or fairgrounds, located within 1,000 feet of the property line of any elementary, middle or high school.

    The penalty for violations is up to five years in federal prison and the permanent loss of the offender’s right to own a firearm.

    The National Coalition for Amending the Federal Gun Free School Zone Act of 1995 is alerting Wyoming residents to the existence of the federal ban, given that the state’s new law allowing residents to carry handguns without permits is in effect.....
    My Google-Foo must not be working this morning; I searched on, "National Coalition for Amending the Federal Gun Free School Zone Act of 1995" and didn't get ANY hits.... (Cool new editor, by the way!)
    Dave
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    Quote Originally Posted by davegran View Post
    My Google-Foo must not be working this morning; I searched on, "National Coalition for Amending the Federal Gun Free School Zone Act of 1995" and didn't get ANY hits.... (Cool new editor, by the way!)
    NCAFGFSZA....how's that for an acronym? :-)

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    Quote Originally Posted by mrjam2jab View Post
    NCAFGFSZA....how's that for an acronym? :-)
    Oh, of course, why didn't you just say, "Na-Ca-FiGiF-Sizza"? We all know them!
    Dave
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    When I see Obama's X on the bill, I'll believe it, eather way, i'm happy with th WI & UT. boar out.
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