Sorting It Out
1. Wis. Stat. 167.31(2) is just that - a statute. It is not a rule, regulation or three-cornered hat. Violation of 167.31(2)(a) or 167.31(2)(b) is not a crime but results in a forfeiture.
2. Violation of 941.23 (also a statute) is a crime, a Class A misdemeanor.
3. The Wisconsin State Court of Appeals (level just below the Wisconsin State Supreme Court) has said:
"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)."
This is not dicta (unnecessary commentary) but a legal conclusion essential to the decision. Unless and until the WI Sup. Ct. or the Court of Appeals itself reverses this holding, it is the law in Wisconsin. All trial courts are bound to follow it. What could differ is whether or not in a particular case the handgun was "indiscernible from ordinary observation...." That is a question of fact.
4. The argument that it is impossible to comply with 167.31 and 941.23 simultaneously will go nowhere. There is no requirement that a person have a handgun in a vehicle. You simply do not carry a handgun in a vehicle and voila, you are in compliance with both statutes. There may be other, less drastic means of compliance as well. The question now becomes do the only solutions to this situation vitiate the rights under Article I, Section 25? It certainly seems so to me. As far as I know, this has never been argued in any case. This argument may be less likely to succeed since now a license makes any potential of impossibility go away. The license is not required to vehicle carry (which would be a constitutional problems) but the license makes vehicle carry a lot easier.
5. With the impending activation of SB93, the 167.31 situation changes. The 941.23 situation changes, but only for licensees. This is reflected in the Sappenfield memo. For non-licensees, vehicle carry per se is fine. What the non-licensee cannot do is carry concealed. What is or is not concealed will be dependent on the facts in a particular case. A handgun in a closed glovebox, console or other contained is, by definition, concealed. In a holster, on the dash, etc....once again it depends.
6. Being "within reach" is one of the three prongs of the test that the WI Supreme Court established to determine whether or not a violation of 941.23 has occurred. The three elements 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).
All three elements are required. Thus if the weapon is not within reach, element one fails. That is why having a weapon that is "out of reach" is protection against a charge under 941.23. Alternatively, if you do not know of the weapon's presence (good luck with that one), element two fails. If the weapon is not hidden (which brings us back to the Walls case), element three fails. In any of the three situations, you have not violated 941.23.
7. The question you must ask yourself - "Does my aversion to obtaining a license outweigh the consequences of possibly being charged with a misdemeanor?" Everybody's on his own with that.
8. One other possibility - a revision in the law that states that a handgun is not concealed if it can be seen from some vantage point.
