MKEgal Is Free

[Trip20]

on jury nullification in Wisconsin, you will find little foundation in the statutes.
http://www.badgerlawyer.com/blog/?p=132

That person's opinion is definitely valid. I guess I do see a need for jury nullification in cases where a determination could be made that, yes, a particular person broke XYZ law, but based on a reasonable person standard (and considering the individuals actions/intent at the time the crime was committed) the information is so convoluted and contradictory in some cases that nullification is the most prudent choice.

 

[Teej]

Thanks for the information. Not being argumentative I assure you, but I think what I'm getting at is that the DOJ FAQ may not have "let it stand". I say this under the assumption that a FAQ by the DOJ could be admissible evidence in portraying a reasonable person standard with regard to a citizens interpretation of what is legal. If that assumption is wrong, then I really have no basis for anything I've said thus far



Damn you. I'll have to evaluate the venn diagram in more detail before I can really understand what you mean as my head is spinning. But it looks like you're throwing out my idea that one could reasonably construe "carry" to be a type of "possess" (correct me if I'm wrong in your intent).

Actually I phrased that a bit wrong.

The carry circle would have to be entirely within the possess circle as previously described.

However, other circles (such as "concealed" and "in a school") overlap portions of "possess" and "carry" and where that overlap occurs, you are no longer legal.

Put it this way...this is drastically simplified, but covers what I'm trying to say. Shaded areas represent things not legal (and/or not legal without license or special permission/circumstances). Unshaded areas are what's legal without a license or special permission. There may be errors / omissions, IANAL, not to be used in court of law, blah blah blah.

 

[Trip20]

Actually I phrased that a bit wrong.

The carry circle would have to be entirely within the possess circle as previously described.

However, other circles (such as "concealed" and "in a school") overlap portions of "possess" and "carry" and where that overlap occurs, you are no longer legal.

You should really just break down and draw up the diagram
You'd save me a lot of time and frustration.

 

[Captain Nemo]

As regards to the private citizen all Act 35 did to ss941.23 is remove the strict liability of the statute by making an exception for private citizens in posession of a Concealed Carry License to carry a concealed weapon. Statute 941.23 was declared by the WSC to be a strict liability statute in paragraph 48 of State v. Hamdan. All case law in regards to posession of concealed handguns by unlicensed individuals still stands. Prohibition of concealed carry of concealed long guns is not affected by Act 35. In fact Act 35 muddies the water in regard to long guns. Now that 167.31 has been changed to not prohibit transport in vehicles of uncased and unloaded long guns. Does that mean an encased long gun could be considered concealed because a person now has the option of transporting the long gun unloaded and uncased and in plain view? Or does that mean that if a long gun is encased it now must certainly be carried out of reach in order to remove one element of concealment?

As HHK said some court judgement is needed. I seriously think the State will do all it can to prevent any related cases from reaching the WSC, especially with the WSC's current membership. The only way a case will get to the appeals or supreme court is if someone is found guilty in district court and appeals the verdict.

Of course all of that can be minimized if the legislature would pass a constitutionally protected right to carry law and unless we really get on our soap box and pound on the legislature I think that probability is slim in the near future. With the Wisconsin shall issue privilege arguably rated as the fifth best in the country there is little incentive for legislators to push for constitutional carry. With the passage of the Personal Protection Act the monkey is off the legislature's and governor's backs. There will be little incentive for resurfacing the gun rights issue now that most gun rights groups have been placated, especially the NRA. The legislators NRA rating are no longer at risk. We can also expect as much support for constitutional carry from the NRA as we did during our open carry crusade(my opinion). Our campaign for "right to carry" may be equally as difficult as our campaign for a concealed carry privilege. We gotta get noisy.

 

[Teej]

You should really just break down and draw up the diagram
You'd save me a lot of time and frustration.

Yeah. See above.

 

[Trip20]

Yeah. See above.

Thanks!

Is the diagram in need of an "Open" circle (to contrast the "Concealed" circle)? Or is the Open component represented otherwise?

 

[Teej]

Thanks!

Is the diagram in need of an "Open" circle (to contrast the "Concealed" circle)? Or is the Open component represented otherwise?

As I said, it was not meant to be exhaustive.

It's just that as I read this thread, several posters seem to state, though not in these words:

"Carrying is a form of possession. The law says I can possess a loaded handgun in the car, therefore I can carry a loaded handgun in the car."

I only drew enough of the venn to contradict that logic. If one tried to wrap up all situations the venn would get hopelessly complex.

I could throw this up in "logic" / proof terms (describing the argument in terms of posit, converse, contrapositive, etc.) but I risk it being considered "ruling class jibberish". In short, the "proof" would fail when you get to saying "Because I can possess it, I can carry it." because there would be no logical backing for that statement. It relies on the converse of a true statement being true, which cannot be assumed.

 

[Herr Heckler Koch]

https://en.wikipedia.org/wiki/Square_of_opposition

Formal Aristotelian logic is not particularly useful to legal analysis except as an introduction to formal logic.

 

[MKEgal]

Teej, that diagram is beautiful.
1 picture = 1K words + < clarity
Where'd the "clapping" smiley go?

The problem with the thought process of the venn diagram and including "carry" as a subset of "possess" is that by that logic *anything* you can do while possessing that handgun would be legal.

Going strictly on that statement ^^^^^^ murder by handgun would be legal,
yet there's a law against it, so it's not.
We've been talking about possessing in a car; throwing another scenario into the discussion isn't right.
Yes, if we widen the discussion of course there are nonsensical things like you've pointed out.
Then we need more complicated sentences (or diagrams).

As for carrying on school grounds, if WI had just followed federal law it would be legal as long as someone had a WI license. Instead, the legislators very carefully carved out the parts about licensees carrying in a school zone, or anyone having it U&E.
[Federal law only says "school zone", defined as the property + 1K' in every direction. WI law muddies the waters by throwing in the separate area called "school grounds".]

 

[ccwinstructor]

The legislature now nows the power of the pro-gun activists

As regards to the private citizen all Act 35 did to ss941.23 is remove the strict liability of the statute by making an exception for private citizens in posession of a Concealed Carry License to carry a concealed weapon. Statute 941.23 was declared by the WSC to be a strict liability statute in paragraph 48 of State v. Hamdan. All case law in regards to posession of concealed handguns by unlicensed individuals still stands. Prohibition of concealed carry of concealed long guns is not affected by Act 35. In fact Act 35 muddies the water in regard to long guns. Now that 167.31 has been changed to not prohibit transport in vehicles of uncased and unloaded long guns. Does that mean an encased long gun could be considered concealed because a person now has the option of transporting the long gun unloaded and uncased and in plain view? Or does that mean that if a long gun is encased it now must certainly be carried out of reach in order to remove one element of concealment?

As HHK said some court judgement is needed. I seriously think the State will do all it can to prevent any related cases from reaching the WSC, especially with the WSC's current membership. The only way a case will get to the appeals or supreme court is if someone is found guilty in district court and appeals the verdict.

Of course all of that can be minimized if the legislature would pass a constitutionally protected right to carry law and unless we really get on our soap box and pound on the legislature I think that probability is slim in the near future. With the Wisconsin shall issue privilege arguably rated as the fifth best in the country there is little incentive for legislators to push for constitutional carry. With the passage of the Personal Protection Act the monkey is off the legislature's and governor's backs. There will be little incentive for resurfacing the gun rights issue now that most gun rights groups have been placated, especially the NRA. The legislators NRA rating are no longer at risk. We can also expect as much support for constitutional carry from the NRA as we did during our open carry crusade(my opinion). Our campaign for "right to carry" may be equally as difficult as our campaign for a concealed carry privilege. We gotta get noisy.

The ice has been broken for reforming the carry laws. Next time will be easier because it has already been done once. The activists organizations and mechanisms have all been forged and found useful. The experience in other states is to go back to the well again and again, gaining more freedom each time. The legislatures get used to it. One Democrat legislator in Alaska finally pushed for consitutional carry, claiming that he was tired of going over the issue year after year, and that he would rather have it done with, once and for all. That year we passed constitutional carry in Alaska.

In Arizona, AZCDL was forged and kept going back, making incremental progress, gaining a reduction of training hours one year, an elimination of the requirement for fingerprints for renewal, until we got constitutional carry. Now we are working on campus carry, which Wisconsin got a chunk of. There is a lot of bad law to undo, so this process will continue for some time.

 

[jpm84092]

The ice has been broken for reforming the carry laws. Next time will be easier because it has already been done once. The activists organizations and mechanisms have all been forged and found useful. The experience in other states is to go back to the well again and again, gaining more freedom each time. The legislatures get used to it. One Democrat legislator in Alaska finally pushed for consitutional carry, claiming that he was tired of going over the issue year after year, and that he would rather have it done with, once and for all. That year we passed constitutional carry in Alaska.

In Arizona, AZCDL was forged and kept going back, making incremental progress, gaining a reduction of training hours one year, an elimination of the requirement for fingerprints for renewal, until we got constitutional carry. Now we are working on campus carry, which Wisconsin got a chunk of. There is a lot of bad law to undo, so this process will continue for some time.

This is good advice for Wisconsin Patriots. The key to progress is to accept what you have just accomplished and enjoy the victory - then begin considering the next viable option for improvement. When some time has passed, and the WI legislature sees that the concealed carry license did not result in the end of life as they know it in Wisconsin, then "go back to the well". Each Wisconsin CCL issued represents a pro-2A voter.