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Old November 14, 2002, 05:45 PM   #11
GnL
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Join Date: June 1, 2000
Location: Wisconsin
Posts: 321
I sat in on oral arguments for these two cases today. There were 3 key issues that the court focused in on during arguments in both cases (both cases dealt with similar issues, but slightly different circumstances):

1) Current case precedent dealing with 941.23 (prohibition on carrying concealed weapons) makes no distinction between carrying a concealed weapon on the street and doing so at one's home or business. The justices repeatedly asked the assistant attorney general, representing the state's position, whether a person who has a concealed firearm within reach in their own home could be in violation of 941.23. The repeated answer was, "yes, but it is never enforced." [note: see issue 2]. The atty for Hamdan did a good job of hammering the fact that this broad application results in every firearm owner in the state being a potential violator. In other words, anytime you are "within reach" of your gun safe and the gun is inside, you are technically "going armed" with a concealed weapon. I know it sounds ridiculous, but that is apparently the way case law interprets 941.23 [note: I need to look into this further].

2) The state tried to call some applications of this statute "technical violations" and others "prosecuted violations," stating that prosecutorial discretion protects firearms owners who keep weapons concealed at home or in a place of business. The justices were not satisfied with the state's position on this issue [thankfully!] and emphasized that the 2nd case of the day (Hamdan) involved that very scenario--a business owner carrying a concealed weapon in his place of business. The attorney for the state got backed into a corner on this issue with regard to the Hamdan facts.

3) Open carry vs. concealed carry. The justices went round and round on the point that the state's position on 941.23 results in an absurdity. Basically, because there is no restriction on carrying openly in Wisconsin, for a homeowner to avoid a violation of 941.23, he must keep the weapon exposed, or non-concealed. Effectively, it forces gun owners to keep their weapons on the countertop in their own home or business rather than a gun safe, or someplace concealed. One justice said it was completely absurd to require homowners with guns to keep their guns exposed even with children in the house rather than keep them in a safe. The attorney for the state tried to back out of this corner by saying something to the effect that a gun owner can wear a holster in his house/business and thereby keep the weapon exposed and protected at the same time. The attorney for the state was real weak on this point.

There was more discussion on such issues as whether the constitutional guarantee to keep and bear arms allows for regulation of manner. Both sides said yes, but there was a difference in what level of scrutiny should be applied.

There was also some discussion of whether a person attempting to exercise their right to defense under the constitutional provision must have a "reasonable" belief that he is in danger. I got the impression that an everyday Joe from a "safe" suburb wasn't going to be allowed to "bear arms" for a general defense, based on most of the justices questions.

The attorney for Hamdan did a good job of pointing out the confusion that exists for gunowners (him being one) with regard to whether they are entitled to keep a weapon concealed in the home, on the street, or in a place of business, and under what circumstances that weapon can be carried openly. He stressed the need for the court to clarify the law for all of us. He also said the 941.23 statute is "messed up" and the legislature should write a law that makes sense in light of the constitutional provision [note: I couldn't agree more].

Bottom line is this: I believe at least 5 of 7 justices have serious problems with the lack of distinction in the statute between concealed weapons on the street and in the home/business. I find it difficult to believe the statute will be completely thrown out as unconstitutional, though this is what the Hamdan attorney was asking for as his first alternative. I think they may re-interpret 941.23 to allow for concealed weapons in the home/business. My gut says we will get a positive change out of these cases, but probably not what we are hoping for (instant Vermont-style carry).

Notes:

There is at least one justice (Justice Sykes) who really appears to be a true friend of gunowners and would love to throw out the statute and have Vermont-style carry, or at least force the legislature to write a CCW permit law. She may have more guns at home than I do based on her questions. When the Hamdan atty said a person in Milwaukee would have a reasonable basis for carrying a weapon in self-defense, she asked, well what about the suburb homeowner living in Brookfield. Don't they have a right to bear arms for defense also? [I almost applauded at that point but restrained].

There are other justices who seem to be able to relate to the problem of "technical violations": Justice Bradley indicated she has a locked gun cabinet at home with a glass door (therefore not concealed) and said it was ridiculous that the legality of keeping a gun at home was dependent on whether the cabinet had a glass door or not.

Both sides agreed that the Wisconsin constitution guarantees an individual right to keep and bear arms. I got a bit riled up, however, when the atty for Cole said the 2nd Amendment (U.S.) appeared to protect a collective right due to the militia clause and tried to draw a distinction with the Wisconsin constitutional provision, but he then later backtracked a bit by saying "there is still a lot of debate on this issue."

There was some debate on who should have the burden in the case of someone exercising his/her constitutional right to keep or bear arms. The state effectively said the defendant should have to show his use was for "security, defense, hunting, recreation, or any other lawful purpose" while the attys for the defendants argued that people should not be afraid to exercise their rights due to having to show later that they were justified in their use of firearms--that the state should have the burden of demonstrating the use was outside the constitutional categories.

Well, we'll see what happens. Hopefully the result will spur the legislature into action and put Jim BINGO Doyle into a position where he becomes irrelevant.
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