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Thread: Whitewater council looking at limits on concealed carry

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    Regular Member paul@paul-fisher.com's Avatar
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    Whitewater council looking at limits on concealed carry

    http://walworthcountytoday.com/news/2011/jul/20/whitewater-council-looking-limits-concealed-carry




    I
    f anyone lives in the area, please let your elected officials know your thoughts.

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    My understanding is that they can not pass a ordinance that preempts state law. A sign can be posted but a ordinance can not be passed. Am I correct?

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    The law provides immunity for those that allow carrying weapons on their property but provides no immunity from the decision if they ban guns. I wonder if this applies to governments or just private property and private business? If it applies to governments then it should be pointed out to them. Jane Doe goes to the town hall to pay her taxes. She sees the sign banning guns, returns to her car and leaves her carry gun in it. Returns to the town hall and while there, her insane, estranged husband comes in and shoots poor Jane dead. Is the town liable?

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    Founder's Club Member protias's Avatar
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    Quote Originally Posted by cheezhed View Post
    My understanding is that they can not pass a ordinance that preempts state law. A sign can be posted but a ordinance can not be passed. Am I correct?
    That is correct.
    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

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    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by Max View Post
    The law provides immunity for those that allow carrying weapons on their property but does not provides no that same immunity from the decision if they ban guns. I wonder if this applies to governments or just private property and private business? If it applies to governments then it should be pointed out to them. Jane Doe goes to the town hall to pay her taxes. She sees the sign banning guns, returns to her car and leaves her carry gun in it. Returns to the town hall and while there, her insane, estranged husband comes in and shoots poor Jane dead. Is the town liable?
    I corrected it for you.

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post
    http://walworthcountytoday.com/news/2011/jul/20/whitewater-council-looking-limits-concealed-carry




    I
    f anyone lives in the area, please let your elected officials know your thoughts.
    So Wisconsin doesn't have state preemption? With the McDonald SCOTUS decision how can any government infringe on RKBA. What good is a CPL if you can't carry it in or on public property.
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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Venator View Post
    So Wisconsin doesn't have state preemption? With the McDonald SCOTUS decision how can any government infringe on RKBA. What good is a CPL if you can't carry it in or on public property.
    WI does have preemption. The ordinance wouldn't be worth the paper it was written on. The most they could do is post every door of every building with a sign. They can NOT post the grounds.

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    Whitewater

    1. The McDonald decision has nothing to do with concealed carry in public buildings.
    2. A local government may pass and enforce an ordinance that is the same or similar and not more stringent than state law.
    3. They can most certainly pass an ordinance that is authorized by state law such as "Signs shall be posted...."
    4. The immunity provision of Act 35 is only relevant in situations that "arise" out of the decision. It is not a blanket immunity for any firearm-related incident. The cases where it might come into play are likely to be few and far between.

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    Founder's Club Member protias's Avatar
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    Quote Originally Posted by apjonas View Post
    1. The McDonald decision has nothing to do with concealed carry in public buildings.
    2. A local government may pass and enforce an ordinance that is the same or similar and not more stringent than state law.
    3. They can most certainly pass an ordinance that is authorized by state law such as "Signs shall be posted...."
    4. The immunity provision of Act 35 is only relevant in situations that "arise" out of the decision. It is not a blanket immunity for any firearm-related incident. The cases where it might come into play are likely to be few and far between.
    How do you reconcile #2 with 66.0409?
    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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    Campaign Veteran GLOCK21GB's Avatar
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    Quote Originally Posted by protias View Post
    That is correct.
    then why are these variuos state municipalities considering passing illegal / unenforceable ordinances ?? these municipalities are really dumb..they must want to make some permit holders wealthy
    Last edited by GLOCK21GB; 07-22-2011 at 01:22 PM.
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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by apjonas View Post
    1. The McDonald decision has nothing to do with concealed carry in public buildings.
    2. A local government may pass and enforce an ordinance that is the same or similar and not more stringent than state law.
    3. They can most certainly pass an ordinance that is authorized by state law such as "Signs shall be posted...."
    4. The immunity provision of Act 35 is only relevant in situations that "arise" out of the decision. It is not a blanket immunity for any firearm-related incident. The cases where it might come into play are likely to be few and far between.
    So you don't have preemption or it's very weak, if you did have full preemption then local municipalities couldn't restrict firearms in any way other than mirror state law. What's with this sign thing? I surmise that the signs have force of some law for private businesses. Do signs also have force of law with regard to public property???? If so then what good is preemption????
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    Please Read 66.0409

    Quote Originally Posted by protias View Post
    How do you reconcile #2 with 66.0409?
    again and tell me where the conflict is.

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    Signs, signs

    Quote Originally Posted by Venator View Post
    So you don't have preemption or it's very weak, if you did have full preemption then local municipalities couldn't restrict firearms in any way other than mirror state law. What's with this sign thing? I surmise that the signs have force of some law for private businesses. Do signs also have force of law with regard to public property???? If so then what good is preemption????
    always have the force of law except as otherwise provided by statute. Here the statute gives the rules for posting. What did I say about local ordinances that is inconsistent with the concept of preemption?Preemption is a restriction on local government not state government.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Venator View Post
    So you don't have preemption or it's very weak, if you did have full preemption then local municipalities couldn't restrict firearms in any way other than mirror state law. What's with this sign thing? I surmise that the signs have force of some law for private businesses. Do signs also have force of law with regard to public property???? If so then what good is preemption????
    The state preemption law is only as good as state law. State law will allow buildings, including government buildings, to be posted. therefore local municipalities may post. I think the only argument above is whether or not they can have an "ordinance" that says all public buildings within a municipality must be posted. I think it's possible that an ordinance like that may violate preemption since the state doesn't require that all government buildings be posted. It would be "more stringent than" the state law.

    They may post all their buildings of course, resulting in a de facto ordinance, but I'm not sure they can make the actual ordinance. Does that make sense?
    Last edited by Brass Magnet; 07-22-2011 at 02:58 PM.
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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    The state preemption law is only as good as state law. State law will allow buildings, including government buildings, to be posted. therefore local municipalities may post. I think the only argument above is whether or not they can have an "ordinance" that says all public buildings within a municipality must be posted. I think it's possible that an ordinance like that may violate preemption since the stat doesn't require that all government buildings be posted.

    They may post all their buildings of course, resulting in a de facto ordinance, but I'm not sure they can make the actual ordinance. Does that make sense?
    Well, to pick nits, they can enact any ordinance they want, however, they cannot enforce it. If, for their own reasons, they need an ordinance to authorize themselves to put up signs, they can do that. They can't however, skip the actual erection (tee hee!) of the signs.

    So.... if they pass an ordinance that says 'We will post every door of every city building' and don't follow through, then there is nothing wrong with me walking through the door. If the ordinance says 'No firearms in city buildings' and they don't post a sign, and they give me a ticket, I can fight it with the preemption statute.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post
    Well, to pick nits, they can enact any ordinance they want, however, they cannot enforce it. If, for their own reasons, they need an ordinance to authorize themselves to put up signs, they can do that. They can't however, skip the actual erection (tee hee!) of the signs.

    So.... if they pass an ordinance that says 'We will post every door of every city building' and don't follow through, then there is nothing wrong with me walking through the door. If the ordinance says 'No firearms in city buildings' and they don't post a sign, and they give me a ticket, I can fight it with the preemption statute.
    To pick the scab that was previously picked on the poor nits back (which must indeed be raw by now); your wrong, they may NOT enact any ordinance they want. In fact, because of the wording in (b), it's the enacting that's regulated because this ordinance wouldn't be in effect before the date in the statute.

    (2) Except as provided in subs. (3) and (4), no political subdi-
    vision may enact an ordinance
    or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keep-
    ing, possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, includ-
    ing ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.
    <snipity snip snip>
    (b) If a political subdivision has in effect on November 17,
    1995
    , an ordinance or resolution that regulates the sale, purchase,
    transfer, ownership, use, keeping, possession, bearing, transporta-
    tion, licensing, permitting, registration or taxation of any firearm
    or part of a firearm, including ammunition and reloader compo-
    nents, and the ordinance or resolution is not the same as or similar
    to a state statute, the ordinance or resolution shall have no legal
    effect and the political subdivision may not enforce the ordinance
    or resolution on or after November 18, 1995.
    So, you've got it backwards.

    Of course neither part of 66.0409 has any teeth which we should try to remedy in the future.
    Last edited by Brass Magnet; 07-22-2011 at 04:10 PM.
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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    To pick the scab that was previously picked on the poor nits back (which must indeed be raw by now); your wrong, they may NOT enact any ordinance they want. In fact, because of the wording in (b), it's the enacting that's regulated because this ordinance wouldn't be in effect before the date in the statute.



    So, you've got it backwards.

    Of course neither part of 66.0409 has any teeth which we should try to remedy in the future.
    You are correct. I guess my point is that it doesn't matter what they do with an ordinance, if the ordinance doesn't cause the signs to go up, it is a moot point. You are right, however, that they enacting an ordinance actually breaks the law and you are also right that there is no penalty so they won't care.

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    Regular Member paul@paul-fisher.com's Avatar
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    So.... to put a head on this, can they enact an ordinance that says "We are going to post all our buildings and if some evil person disobeys the sign, we will issue them a trespassing citation for $1000"?

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    Actually

    Quote Originally Posted by paul@paul-fisher.com View Post
    So.... to put a head on this, can they enact an ordinance that says "We are going to post all our buildings and if some evil person disobeys the sign, we will issue them a trespassing citation for $1000"?
    I believe the forfeiture/fine for violation of an ordinance is much less, say $300. So, it may be advantageous to have local ordinances on all of these issues. The case would also be heard in a municipal court vs. a state court.

    Rather than preemption, it may be better to think of Wisconsin as having "limited home rule" with regard to firearms. True preemption means the states says localities cannot legislate on a matter at all.
    Last edited by apjonas; 07-22-2011 at 07:49 PM.

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