WI Supreme Court CCW cases oral arguments tomorrow--11/14/02

[mpthole]

RickD:

I'm sure Dick or GnL could probably explain this better than me, but I'll give it a whirl...

I think everyone's goal (at least the true, freedom-loving folk I know) is to have "Vermont-style" carry here in WI and MN for that matter. Part of the situation is that some of us have been waiting for these court cases to deliver the death blow to the carrying concealed prohibition. Remember that, technically, WI is an already an open-carry state.

I think anyone involved in getting the CCW bill passed the last time around has been doing it as another option to the court cases. The thinking being here is that since our rights were taken away incrementally, we have to win them back incrementally.

That's just my take on it. I could be totally wrong.

Believe me if I had my way, there wouldn't be any restrictions on carrying open or concealed.

[GnL]

RickD,

Maybe I'm reading your post wrong, but...

Every Wisconsin gunny on this board would love to have Vermont-style carry, but we also recognize this isn't 1903. Even if the WI SCt were to rule the prohibition unconstitutional (thereby giving us Vermont-style carry), chances are it would be met with liberal outcries (read: Madison, Milwaukee dimocrats) of "we cannot have this!" Keep in mind this state just elected the most anti-gun liberal in the state's history to be our next governor. Even the Republicans in the Republican-controlled legislature would probably want to reap something from it (read: permit $s).

I don't think it's a case of pushing a CCW bill because we love bureaucracy and paying money and getting fingerprinted. It's a case where today Wisconsin law-abiding citizens cannot carry a weapon legally in self-defense and something is better than nothing. Is it wrong to have to ask the government for permission to exercise a right? yes. Is it wrong to not have the right at all? YES.

And the chances of the court completely overturning the statute are still pretty slim, IMHO, so it probably doesn't matter anyway.

EDITED to add: the WI SCt, with the exception of 1 or 2 justices, does not want to see Vermont-style carry suddenly thrust upon this state. One of the justices, when asking a question yesterday, said something to the effect of [paraphrasing]: "but if we throw out the statute, we will have an armed society," as if that would be the worst thing to hit this state since weekend vacationers from Chicago. I guarantee you, that if this court throws out the statute, it will be with the expectation that a better statute follows from the legislature that clearly outlines the boundaries of our constitutional rights to bear arms.

[Monkeyleg]

GnL, thanks again for the info. And congratulations on being read on Sykes show!

RickD, I'd love to see Vermont-style carry here, but it ain't going to happen. If Montana and Idaho can't have it, what are the chances of a sometimes-liberal/sometimes-conservative state like WI going that route?

As much as some people want to hang their hopes on the state supreme court, I think it's too iffy. If they rule in our favor, that's great. If they rule even somewhat in our favor, that will help put the pressure on Doyle to at least not veto the bill.

Charlie Sykes (or was it Jeff Wagner?) pointed out something interesting: in the 16 years that Thompson was governor, not one of his vetoes was overridden. An override of a Doyle veto on this bill would hurt his standing. It's just possible that he'll let the senate pass the bill (assuming a 22-vote margin or better), moan about it to the press, and just berate the legislature while doing nothing about the bill.

We have a really narrow window of opportunity here. If this waits until Doyle has established himself politically, there may be fewer Dem's who will be willing to stand up to him.

[bastiat]

FYI, the real audio of the 2nd hearing is up now.

One of the justices mentioned that someone should have a 'good reason' to fear for their safety before going armed. Funny how we don't need a 'good reason' to fear that we may be in a car accident before we wear our seatbelts - the state mandates that we do it at all times.

[Monkeyleg]

Bastiat, that's just one more reason why gun owners should pay attention to judicial races. Eventually some of the lower-court fruitcakes wind up on the SC.

[Frohickey]

Cast of characters:
Phillip Cole - passenger in a car with 2 guns and marijuana
Michael Gould - asst state public defender for Mr Cole

Munir A. Hamdan - store owner with a gun in his store
Chris Trebatoski - lawyer for Mr. Hamdan

Jeffrey Kassel - Wisconsin asst attorney general

Justice Diane Sykes - Wisconsin SC Justice
Justice Patrick Crookes - Wisconsin SC Justice
Justice Ann Walsh-Bradley - Wisconsin SC Justice
Justice William A. Bablitch - Wisconsin SC Justice
Justice David Prosser - Wisconsin SC Justice
Justice John Wilcox - Wisconsin SC Justice
Chief Justice Shirley Abrahamson - Wisconsin SC Justice

Judge Robert C. Crawford - Milwaukee County Circuit Court judge

Nov 14, 2002 : Docket 01-350-CR : State v. Phillip Cole
note that there is about 5 minutes of silence at around 45 minutes in this one... somone kicked the cord, I think
------------------------
Sep 23, 2002 : Docket 01-0056-CR : State v. Munir A. Hamdan

Nov 14, 2002 : Docket 01-0056-CR : State v. Munir A. Hamdan

I think that Cole's lawyer, Michael Gould, needs to take a few more classes. Right to keep and bear arms is not granted by the state or the government. Its a right that exists even if its not mentioned. Its an inherent right. Putting it into the Constitution just explicitly protects it.

Why didn't Michael Gould skewer asst AG Kassel with the 'prohibition of CCW guns harmful in cases of road rage'. I would say that in that case, its not lawful anymore, is it.

When a Justice asked Michael Gould about concealed gun in a bank to make a legitimate withdrawal, Mr. Gould said "Its probably not a good idea to have people going into banks with guns." Seems to me that it would be good for the bank and bad for bank robbers to have citizens carry guns with them while they make legitimate withdrawals or business with the bank

We lost US vs Miller in SCOTUS because of a bad lawyer, and look at where we are at.

----------------------

Of the bat, I like Mr Hamdan's lawyer, Chris Trebatoski.
He puts the court at ease, makes a comment about his hunting weapons in the gun safe his mom bought for him.
He talks about the state's "Oh Don't Worry We Won't Prosecute You For That." attitude.

[ninenot]

GnL: I sent it to him. Picked it up from TFL (through FreeRepublic) about 30 minutes before he read it over the air.

Nice writing--Sykes is pretty careful about what material he uses, and you obviously passed the test.

[GnL]

Frohickey,

I agree with you on Gould's performance. He wasn't very polished in his presentation (though I can grant some slack here if he doesn't have much experience before the SCt.--I have given oral arguments in moot court in law school and it is not easy), but my bigger problem was that he was arguing from a middle-of-the-road, non-gunowner perspective. For example, the concession on carrying a gun into a bank--he took the mainstream position on this, rather than arguing from common sense. He is, afterall, a public defender, and probably isn't a 2nd Amendment/Right to Keep and Bear Arms scholar.

On the other hand, while the Hamdan atty, Chris Trebatoski, gave a much smoother performance and tended to argue better from a true rights perspective, he too conceded on issues that you or I never would have. For example (and I haven't listened to the recording, I am only going from memory) he tended to emphasize a distinction between a shopkeeper in downtown Milwaukee's requirement for a means of defense versus a shopkeeper in the suburb's requirement. He, along with a couple justices, felt the right to bear arms for defense was dependent on whether you had a reasonable fear for your safety, not whether you were a human being. This is a bad distinction in terms of equal application of fundamental rights, and implies that no crime ever exists outside the inner city. Hell, if that were the case, I wouldn't need to lock my doors at night. Hmmm.

Trebatoski also said something during his rebuttal to the effect that if the statute is scrapped, then "everyone would carry." He said it as though this would be a very bad thing. While Trebatoski definitely put on a better case, and may end up carrying the day for his client, he didn't necessarily do gunowners a huge favor.

It will be interesting to see what happens. I can't imagine the court leaving the CCW statute as it is--there was just too much dissatisfaction with the broad application, and Hamdan was a perfect example. On the other hand, I really believe the court as a decisionmaking body is fearful of opening the concealed carry floodgates, even with an assurance that the legislature would come through quickly with a new statute or CCW permit bill.



ninenot,

I was glad Sykes didn't skewer me, especially after he read my comment about Justice Sykes' probable gun collection. By the way, did we ever determine whether they are still married or not? He didn't give any indication over the radio that there was any relationship there at all.

[bastiat]

GnL:

http://ccap.courts.state.wi.us/servl...ountyNumber=40

Sykes has since remarried.

[Frohickey]

GnL:
Yeah. I agree with your assessment of Trebatoski. I'm just echoing what I feel when I started listening to the recording. You or I would have taken it a lot further than he did. Even if he was a gun owner or a hunter, that doesn't necessarily mean he's a RKBA proponent.

Are there gunny RKBA proponent lawyers out there?

[july4th]

In regards to CCW, and what it might look like in Wisconsin, go here:

http://www.wisconsinconcealedcarry.c...gislation.html

These are last year's bills, which made it out of the Assembly, but not out of the Senate. (Killed by the Dems when they had control.)

I really don't want to read through them again, but from what I remember, the permits would have been available to anyone who wanted on but:

-There was a small (around $30) fee.
-A fair amount of "logged" training was required. Somewhere on the order of 8 to 24 hours.

The idea was to not make the bar too high, but to limit the permit to the people who really wanted one, or shot on a regular basis.

The benefit to having higher restrictions is that other states are then more likely to grant reciprocity.

[Monkeyleg]

Finally got time to listen to the Hamdan arguments. It struck me that the court seemed more questioning of the government's position than the defense. GnL, did you have that impression as well?

Also, I loved how a couple of the justices spoke of "the privelege of self defense."

[GnL]

It struck me that the court seemed more questioning of the government's position than the defense

I agree. The Hamdan facts really brought to light the problem with the state's position on the statute and they wanted an explanation. The state didn't really have one.

I loved how a couple of the justices spoke of "the privelege of self defense."

You might be reading more into that than you should. The discussion regarding privilege of self-defense was in the context of an affirmative defense as recognized by statute. As in, if you punch someone in the face after being attacked, you can assert the defense of "privilege" to acquit yourself of any criminal assault or battery charges.

The Wisconsin Statutes explicitly recognize the defense of privilege. See Wis. Stat. § 939.45. An actor's conduct, although otherwise criminal, is legally justified when it occurs under one of several circumstances recognized by statute. Id. If the actor's conduct occurs under circumstances of coercion or necessity, the conduct is privileged. Wis. Stat. §§ 939.45(1), 939.46, 939.47. Likewise, an act is privileged if it is done in defense of persons or property. Wis. Stat. §§ 939.45(2), 939.48, 939.49. Wisconsin also recognizes privileges for the good faith performance of the duties of a public office, Wis. Stat. § 939.45(3); for the reasonable effectuation of a lawful arrest, Wis. Stat. § 939.45(4); and for the reasonable discipline of a child by a person responsible for the child's welfare, Wis. Stat. § 939.45(5). Finally, the privilege statute contains a "catch-all" provision, which incorporates any other privilege recognized by statutory or common law. Wis. Stat. § 939.45(6). Each of these privileges may be raised as a defense to a criminal charge. State v. Nollie, 249 Wis. 2d 538.

In State v. Nollie and State v. Dundon, the WI SCt. basically said there is no "privilege" of self-defense for the crime of carrying a concealed weapon in violation of the CCW statute.

"Privilege" as was discussed in the arguments is a legal term, not a human rights term.

[RickD]

Sorry for not responding. I have spent the last couple of days upgrading from NT4 to Win2000. :barf:
I think my next computer might be a G4.

Anyway, I hope I didn't irritate anyone too much about stressing the problems of a restrictive CCW vs an SC decision a la Vermont 1903.

Mr. Gould said "Its probably not a good idea to have people going into banks with guns."

This is what happens when the defendant goes with a lawyer who doesn't really, really support gun rights but merely goes through the motions of defending his client. Can you imagine David Hardy or Halbrook weenieing out like that?

We lost US vs Miller in SCOTUS because of a bad lawyer, and look at where we are at.

Neither Miller nor his attorney bothered to show up in D.C. to argue the case. The case was argued soley by government prosecutors. But your point is well taken.

Rick

[Monkeyleg]

GnL, thanks for the clarification.

"If the actor's conduct occurs under circumstances of coercion or necessity, the conduct is privileged."

Does that mean I can punch Chuck Chvala in the face and not suffer prosecution?

[GnL]

Does that mean I can punch Chuck Chvala in the face and not suffer prosecution?

You would probably be prosecuted, but maybe not convicted, as long as it was a jury of your peers and not his!

[AndrewWalkowiak]

Well, if enough of the indictments stick, Chavalla will probably get "punched", but not in the face...

[Hunter Rose]

Chucky ain't gonna do any time. If, by some miracle, he DOES do time, it'll be in a country club...

Although the image of some VERY large man putting him in a wedding dress is kinda priceless... <EWG>

[Fulliautomatix]

Any updates to be had?

[jdege]

I was under the impression that the CCW bill considered last year included an opt-out provision for local communities.

Will that be included in this year's bill?

[LonWilson]

New Mexico had that, not Wisconsin

[Blackhawk]

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.

Did Kassel actually attend and graduate from law school, and does he actually have a law license? That is an incredible statement!

[AndrewWalkowiak]

Any updates to be had?

None AFAIK.

The oral arguments are followed by the paper brief submissions to the court which in any SC case is the bulk of the decision making process as the justices review them.

That could take a few months even, unless there's some rule or deadline I am not aware of.

I was under the impression that the CCW bill considered last year included an opt-out provision for local communities.

I sure hope not. Although, were someone to try and slip in such an ammendment, I would hope it would be incompatible with the Wisconsin state firearms preemption act that prohibits cities and counties from enacting thier own differing gun ordinances.

[Monkeyleg]

The only "opt-out" clause in the bill is one which would allow the local sheriff to go before the county board and ask that he not be required to sign applications. The county board would have to reach a two-thirds majority in order to authorize the sheriff's request.

That doesn't mean that residents of that county cannot get permits, though. They can go to another county where the sheriff is signing applications. And, considering that the sheriff's department will get $90 per applicant (less the approximately $7 cost of the NCICS check), a sheriff who wants to refuse is an idiot.