[GnL]

The Wisconsin Supreme Court will hear oral arguments in 2 back to back cases involving concealed carry. The cases are as follows:

November 14, 2002

9:45 a.m.

01-0350-CR State v. Phillip Cole

This is a certification from the Wisconsin Court of Appeals, District I (headquartered in Milwaukee).

In this case, the Supreme Court will decide whether a Wisconsin law that prohibits carrying a concealed weapon violates the Wisconsin Constitution. Here is the text of the constitutional amendment and the statute:

Wisconsin Constitution, Art. I, §25 [created in November 1998]:

Right to keep and bear arms. The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Wisconsin Statutes, § 941.23:

Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.

Here is the background: Police making a routine traffic stop found two handguns and marijuana in Phillip Cole's car. In the trial court, Cole argued that he needed the guns for protection and that Wis. Stat. § 941.23 is unconstitutional. The trial judge disagreed and Cole was convicted of carrying a concealed weapon and possessing THC, both misdemeanor offenses. He appealed the weapons conviction and the Court of Appeals, as noted above, asked the Supreme Court to take the case directly.

In this appeal, Cole argues that when the Constitution and a law come into conflict, the Constitution wins. The State does not disagree, but argues that this constitutional amendment does not create an absolute right to bear arms. The State maintains that the use of the phrase "lawful purpose" in the amendment signals that police will have the power to weigh the lawfulness of each situation.

This is not the first time the Supreme Court has interpreted the so-called concealed carry law. In its last term, it ruled in two similar cases. In January, the Court decided a case involving a Milwaukee man whom police found sitting in a car with a gun tucked into the waistband of his pants.4 The man, who had been a victim of crime in the past, was in a high-crime area at night and claimed that he needed the gun for self-defense. The trial court found that the self-defense claim did not permit the man to carry a concealed weapon and the Supreme Court - over a dissent from Justice William A. Bablitch - agreed, but indicated that its decision was based on the specific facts of that case and should not be interpreted as addressing when, if ever, self-defense might be a lawful reason to carry a concealed weapon.

In June, the Court unanimously ruled that a Kenosha man who was arrested for causing a disturbance in his apartment building and, during a pat-down search, found to be carrying a concealed weapon could not claim that the concealed carry law was unconstitutional.5 The Court ruled this way because the constitutional amendment had not been in effect when Nollie was arrested for violating the statute. Again, the justices noted that their ruling should not be interpreted as answering the question of whether the law is constitutional. That question is one that the Court may now answer in this current case.



10:45 a.m.

01-0056-CR State v. Munir A. Hamdan

This case bypassed the Wisconsin Court of Appeals, meaning that the Wisconsin Supreme Court agreed to take it directly from the trial court. This is a review of a decision of the Milwaukee County Circuit Court, Judge Robert C. Crawford presiding.

This case, like the other one the Court will hear this morning, focuses on the 1998 amendment to the Wisconsin Constitution that confers the right to keep and bear arms:

The Court will decide whether, in circumstances where the person is allegedly carrying the weapon for protection, this amendment effectively repealed the following statute:

Wisconsin Statutes, § 941.23:

Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.

Here is the background: Munir Hamdan has owned and operated Capitol Foods grocery store in Milwaukee since 1987. He maintains that it is in a dangerous area and his petition to the Court quotes census records as indicating that between 1997 and 1999, the neighborhood around the market experienced six homicides, 94 aggravated batteries, and 16 rapes. Between 1993 and 1999, Hamdan's store was a target of three armed robberies and two shootings (a 1998 homicide and a 1997 incident where a gunman shot at Hamdan and his child, and Hamdan returned fire).

Hamdan has kept a handgun under the front counter of the store next to the cash register. On Nov. 26, 1999, plainclothes police officers came into the store at closing time to check Hamdan's licenses. Hamdan had been in the back of the store wrapping the gun in plastic for overnight storage and he stuck the gun in his pocket as he walked back to the public area of the store to talk with the officers. They checked his licenses and then asked if he kept a gun in the store. He withdrew the gun from his pocket and handed it to the officers, who confiscated it.

Hamdan was charged with carrying a concealed weapon and was found guilty. As noted, the Supreme Court took this case directly from the trial court.

As noted in the summary of this morning's other case, this is not the first time the Supreme Court has interpreted the so-called concealed carry law. In January, the Court decided a case involving a Milwaukee man whom police found sitting in a car with a gun tucked into the waistband of his pants.6 The man, who had been a victim of crime in the past, was in a high-crime area at night and claimed that he needed the gun for self-defense. The trial court found that the self-defense claim did not permit the man to carry a concealed weapon and the Supreme Court - over a dissent from Justice William A. Bablitch - agreed, but indicated that its decision was based on the specific facts of that case and should not be interpreted as addressing when, if ever, self-defense might be a lawful reason to carry a concealed weapon. That question is one that the Court may now answer in this current case.
*****************

Stay tuned!