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Old November 13, 2002, 11:48 AM   #1
GnL
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WI Supreme Court CCW cases oral arguments tomorrow--11/14/02

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!
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Old November 13, 2002, 12:22 PM   #2
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Good luck to you folks in Wisconsin. Hope you win 'em both.

Right now, since the conservative folks have won the Ohio Supreme Court elections (4-3 margin), all of a sudden the FOP wants to work with the Ohio Senate to "modify & pass" CCW reform. The FOP's have done nothing to help Ohio CCW, other than be obstructionists. The CCW reform passed the Ohio House with a veto-proof majority, and is now in Senate hands. And, a CCW case is before the Ohio Supreme Court.

The ban on CCW in Ohio has already been twice ruled unconstitutional in lower courts. From what I see, the FOP's are very afraid of a "Vermont-Style carry" ruling being made. The FOP's want to increase training requirements, including 8 hours of range time, huge fees, and adding a lot of "Can't carry in here" restrictions.
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Old November 13, 2002, 01:20 PM   #3
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"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."

What??
The phrase "lawful purpose" is there to EXPAND the allowable reasons for carrying, not to limit it. What version of the English language are they using??
Am I totally mistaken on this??
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Old November 13, 2002, 03:34 PM   #4
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Now with that liberal s---head Doyle for our new govenor, this State Supreme Court case is WI's only chance for CCW for at least another four years.

Unless one of the submitted federal bills for forced reciprocity of CCW's passes in 2003 under the Republicans. Then it's possible that an out of state Florida CCW's and others might have to be recognized here. It's possible that even Doyle would sign off on CCW for WI to avoid the embarrasment, and loss of revenue from licensing fees going out of state.

My fingers are crossed, and the shopkeeper is the absolute best test case since he has no other "baggage" such as marijuana posession at the time of arrest.
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Old November 13, 2002, 05:25 PM   #5
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I'm going to try to sit in on the arguments tomorrow. The WI Supreme Courtroom is not very large so hopefully I can snag a seat. I'll take some notes and post a report afterward.

BTW, 3 of the 7 justices were appointed by Tommy Thompson, 3 of them were elected, and 1 (chief justice) was appointed by Gov. Lucey, but I don't know their individual leanings very well (although I am an attorney, I am new to this state).
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Old November 13, 2002, 05:28 PM   #6
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Quote:
I'll take some notes and post a report afterward.
Hmm, could you video tape it??? I could have some fun with that i'd bet ;-)
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Old November 13, 2002, 05:31 PM   #7
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Quote:
could you video tape it???
Not if I want to keep my law license! I think, though, that the court releases audio recordings of arguments a few days after they occur and they are available on the website. I'll see if I can locate a link for you.


EDIT: Here's the link for audio recordings of arguments... WI Supreme Court oral arguments recordings Website says available 2-3 days after arguments heard. Maybe I'll cough a couple times so you know I was there.
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Old November 13, 2002, 06:10 PM   #8
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Andrew, we're not dead in the water by any means. The CCW bill is going to be introduced as one of the first out of the chute when the senate convenes in January. We have 18 Republicans in the senate, all of whom will vote for the bill. In the assembly, the Republicans increased their majority, and last year the bill passed that house 58-40.

We need four Democrats to get a veto-proof majority, and I'm told that we have more than four. Amongst those Dem's, there are some real pro-gun senators. Also, there will be more Dem's up for re-election in 2004, so the pressure from the NRA and statewide groups will be enormous. The proponents of the bill seem to feel they can get 22 votes.

Doyle can veto the bill, he can sign it, or he can do nothing with it, in which case it automatically becomes law after 30 days. The feeling amongst the proponents of the bill is that Doyle will not want to be embarrassed by having a veto overridden so early in his tenure, and he may just tell the press it's out of his hands.

I was surprised by the level of confidence these "insiders" are showing. Still, we need everyone who supports concealed carry to write their senators, especially Democrat senators.

And, if the state supreme court rules at all in our favor, that will be icing on the cake.
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Old November 13, 2002, 06:23 PM   #9
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Quote:
EDIT: Here's the link for audio recordings of arguments... WI Supreme Court oral arguments recordings Website says available 2-3 days after arguments heard. Maybe I'll cough a couple times so you know I was there.
Don't worry about it, if I can't get video I can't have much fun...Oh well, back to stalking the MMM ninnies then.
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Old November 14, 2002, 12:47 PM   #10
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Please keep us posted. ...and thanks for being there!
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Old November 14, 2002, 05:45 PM   #11
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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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Old November 14, 2002, 06:25 PM   #12
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Thanks, GnL. Was there any mention of when further arguments would be scheduled?

Justice Sykes' positions aren't surprising; she's the wife of radio talk show host Charlie Sykes.
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Old November 14, 2002, 07:09 PM   #13
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Monkeyleg,

I don't believe there will be any further arguments, unless you are referring to another case? As far as I know the next step is a decision on the issues before the court.

Interesting about J. Sykes. I did not know about that relationship.
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Old November 14, 2002, 08:12 PM   #14
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From the Journal-Sentinel: http://www.jsonline.com/news/state/nov02/95761.asp


State Supreme Court hears arguments on concealed weapons law
By DENNIS CHAPTMAN
dchaptman@journalsentinel.com
Last Updated: Nov. 14, 2002

Madison - Wisconsin's 130-year-old prohibition on carrying concealed weapons runs afoul of a 1998 constitutional amendment establishing a right to keep and bear arms, lawyers told the state Supreme Court Tuesday.

Justices on the state's highest court heard arguments in a pair of Milwaukee cases challenging the concealed carry law as infringing on the amendment's guarantee of citizens' "right to keep and bear arms for security, defense, hunting, recreation and any other lawful purpose."

The court heard arguments in two cases, one in which Capitol Drive grocery store owner Munir Hamdan was convicted for carrying a concealed handgun in his store. In the other case, Phillip Cole was convicted for carrying concealed handguns in a car in which he was a passenger.

"We've got a statute that's so messed up," Hamdan's lawyer, Chris Trebatoski, said of the concealed carry law. "Get rid of the thing. Legislature, do your job. Fix it."

Hamdan, the victim of numerous robberies, was fined $1 by Milwaukee County Circuit Judge Robert Crawford for carrying a plastic-wrapped pistol in his pocket at his Capitol Foods store at 2483 Capitol Drive when police stopped to check his operating licenses.

At closing time on Nov. 26, 1999, Hamdan had just taken the .32-caliber pistol from beneath the store's counter, wrapped it in plastic and was about to hide it in a back room when police arrived. He placed the weapon in his pocket and went to answer officers' questions.

When they asked if he had a firearm, he pulled the handgun out of his pocket and was later charged by prosecutors for carrying a concealed weapon, a misdemeanor. Between 1997 and 1999, Hamdan survived three armed robberies, including a 1997 shootout that left the robber dead on the sidewalk.

"You're telling storekeepers in the city of Milwaukee ... the only way you can have a gun is if people can see it," Trebatoski said. "You're telling people, this store is free rein. Go for it."

Lawyers for the Palestinian immigrant argued that the concealed carry law should not apply to merchants in their businesses or homeowners in their homes.

"The absurd result is that homeowners and shopkeepers who leave guns, for example, in bed stands or under counters, are in violation," Hamdan's lawyers argued in their briefs.

Furthermore, they argued that the constitutional amendment protects Hamdan's right to carry a concealed weapon for his own security and protection. They noted that Hamden was not advocating a right to go outside of his store with the weapon.

"He has a right to possess a concealed weapon, whether it is on his person or under a counter in his business to protect himself, his business and his property," his lawyers argued, adding that the Supreme Court has not examined the distinction between "going armed" with a concealed weapon and possessing one.

But assistant attorney general Jeffrey Kassel said that the amendment did not supersede the concealed carry law, which he said is on the books to protect public safety.

Kassel argued that the chances of someone being arrested for having a gun in their bed stand were "infinitesimal," but Trebatoski disagreed and said Hamdan was an example.

"If Mr. Hamdan is not on the fringe, then every single person in the state who has a gun is at risk of not being on the fringe, either," he said, noting that Hamdan's family often cooked and ate in the store and "that's close to being a house."

Justice David Prosser was concerned about the implications for homeowners who store guns in cabinets for safety, and said the prospect of them being charged for a concealed weapons violation is "patently absurd."

Justice John Wilcox agreed and called it "bizarre," and added "it doesn't seem to me to be reasonable that if you're going from Place A to Place B in your own place of business that you can't carry it."

Trebatoski said that if justices do not strike down the concealed carry law, they could allow juries to decide whether individual cases met the constitutional requirements for bearing arms.

Chief Justice Shirley Abrahamson asked whether that wouldn't be a good compromise, but Kassel argued that system would "swallow" the concealed carry law because every defendant would claim constitutional privilege.

Justice William Bablitch interjected: "If the people of this state believed they were essentially swallowing the concealed weapons law, it's not our job to tell them they were wrong."

When Cole was arrested during a routine traffic stop, Milwaukee police found two handguns and marijuana in the car. Cole claimed he needed the guns for protection.

His lawyer, assistant state public defender Michael Gould, said the law guts the constitutional right to keep and bear arms.

"Because of the prohibition, there is no way that citizens can legitimately exercise their right to carry arms for self-defense or security," Gould said.

Kassel said that to invalidate the law would contradict the intention of the authors of the amendment, which qualifies the right to keep and bear arms with the phrase "any other lawful purpose."

Kassel said lawmakers were aware of the concealed carry law, and the possible conflict with the amendment, and chose not to repeal the law.

Justice Diane Sykes asked: "Isn't the concealed weapons law a total impairment of a constitutional right?"

Kassel answered that the law is simply a requirement of the manner in which a weapon is carried.

END
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Old November 14, 2002, 09:33 PM   #15
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Diane sykes is the ex wife of charlie sykes. I think they divorced 4-5 years ago.

Mark Belling made a prediction today that the supreme court would rule that the law was unconstitutional (based on the state constitutional amendment) and that wisconsin would have concealed carry without any legislation being needed - i.e. vermont style carry. I wish he was right, but I don't think they're going to go that far.
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Old November 14, 2002, 10:51 PM   #16
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Thanks for that great report GnL. Any idea when they will release their verdict?

(BTW: is GnL for G&L guitars? I've got a Legacy. )
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Old November 15, 2002, 12:23 AM   #17
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Just listened to the whole session. Nice to have such material on-line.

Three key issues arise.

First, the state definition of "concealed carry" (which is prohibited) includes having a non-visible firearm "within reach". Perversely, this prohibits keeping a loaded firearm in a nearby drawer, such as in a business or bedroom. This takes the "carry" part of "concealed carry" to absurd lengths.

Second, prohibited "concealed carry" includes a firearm "within reach" within a vehicle. Perversely, this prohibits having the firearm in plain view, such as on the passenger seat. This takes the "concealed" part of "concealed carry" to absurd lengths.

These two points are preposterous and should obviously be overturned. There is no justification for them, as they apply meaning to terms with opposing definitions ("sitting in a drawer" cannot conceivably mean "carry", and "plainly visible" cannot conceivably mean "concealed").

The third point is more difficult. The state technically permits open carry, but surely one would hassled by police and quite possibly charged with something (disturbing the peace, threatening, etc.) for even the most innocent of open carry. The chilling effect is severe, yet legally ignorable. More seriously, concealed carry is explicitly not a right (may be declared legal, but is not a right) in the state constitution.

A key weak point in the pro-gun argument developed when the attorney admitted that a state could explicitly prohibit carry in a variety of locations (schools, banks, courthouses, etc.) and by a variety of people (minors, felons) - but did not give any legal justification for such targeted prohibitions in the face of the state constitution.

'twas an interesting listen. Will be interesting to read the ruling.
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Old November 15, 2002, 01:44 AM   #18
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What's the normal turnaround time for the state supreme court to reach a verdict?
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Old November 15, 2002, 09:40 AM   #19
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ctdonath,

Were you able to listen to State v. Hamdan? I don't think that argument has been posted yet (I get an error when I click on it). State v. Cole is there and maybe that's what you listened to.

If you get a chance, listen to Hamdan when it gets posted. I think the pro-concealed carry position was better articulated in that case and you can detect a definite shift in the position of some of the justices in that case due to its unique facts.
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Old November 15, 2002, 10:12 AM   #20
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GnL, I thought it was just me. I couldn't get it to download earlier.

Charlie Sykes said he will be talking about this on his show today. Anyone can listen to it on the net at http://www.620wtmj.com/620listenlive/index-new-alt.asp
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Old November 15, 2002, 10:23 AM   #21
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I had no idea we were in such good shape! Thanks for the info Monkeyleg, you made my day!
Quote:
Andrew, we're not dead in the water by any means. The CCW bill is going to be introduced as one of the first out of the chute when the senate convenes in January. We have 18 Republicans in the senate, all of whom will vote for the bill. In the assembly, the Republicans increased their majority, and last year the bill passed that house 58-40.

We need four Democrats to get a veto-proof majority, and I'm told that we have more than four. Amongst those Dem's, there are some real pro-gun senators. Also, there will be more Dem's up for re-election in 2004, so the pressure from the NRA and statewide groups will be enormous. The proponents of the bill seem to feel they can get 22 votes.

Doyle can veto the bill, he can sign it, or he can do nothing with it, in which case it automatically becomes law after 30 days. The feeling amongst the proponents of the bill is that Doyle will not want to be embarrassed by having a veto overridden so early in his tenure, and he may just tell the press it's out of his hands.

I was surprised by the level of confidence these "insiders" are showing. Still, we need everyone who supports concealed carry to write their senators, especially Democrat senators.

And, if the state supreme court rules at all in our favor, that will be icing on the cake.
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Old November 15, 2002, 11:21 AM   #22
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When will it be determined what exent of CCW will be allowed? Any possibility of "shall-issue" or do you think it will be "must prove a need", along with documented training etc etc.
Please keep us informed.

Thanks!
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Old November 15, 2002, 12:37 PM   #23
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Charlie Sykes is doing the topic right now. GnL's post was cited and quoted extensively during the intro.

Should be taking calls soon....this may be interesting.
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Old November 15, 2002, 01:33 PM   #24
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I heard Charlie Sykes read part of my post on the air.

It's weird hearing something you've written repeated verbatim on the radio when you're not expecting it. The callers generally seemed to be pro-carry.
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Old November 15, 2002, 01:45 PM   #25
RickD
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Join Date: November 19, 1999
Location: Arizona
Posts: 1,920
Quote:
Andrew, we're not dead in the water by any means. The CCW bill is going to be introduced
Since I have not read the CCW bill, and I don't know how restrictive it might be, I'll risk saying the following:

Just as in Ohio this year, it looks as if Wisconsin gunnies are so hot to have a CCW bill that they will avoid the strong chance of having the court create a Vermont-carry like situation a la Vermont's Rosenthal decision in 1903.

This simply amazes me.

Rick
Arizona
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