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WI supreme court ruled on CCW today.

Discussion in 'Legal' started by AJ Dual, Jul 15, 2003.

  1. AJ Dual

    AJ Dual member

    Just in on the web,

    WI had two CCW cases,

    One: A Pizza delivery boy busted for pot and concealed guns in his car. Chalenged on WI's RKBA ammendment to the state constitution.

    Staus: Conviction upheld.


    Two: An inner-city shopkeeper having his business license checked by Milwaukee PD, was busted for illegal CCW for having a gun in his pocket on his own premises. Chalenged on WI's RKBA ammendment to the state constitution.

    Status: Conviction overturned


    My first immedate take, a tie, neither hurts nor helps us get CCW in WI, overal it's a wash. But I have to read further as all sorts of smaller parts of the decisions could be important.

    Those like Monkeyleg may well have more insight than me.
  2. Monkeyleg

    Monkeyleg New Member

    Thanks for posting this, Andrew. Actually, the Hamdan decision is much more positive for our CCW cause than it appeared at first. You no doubt received the email that we just sent out, but I'll post it here for others:


    Today the Wisconsin state supreme court released its decisions in two cases that challenge the constitutionality of the current ban on concealed carry: state vs. Phillip Cole, and state vs. Munir Hamdan.

    Hamdan has been the lead case, and the court's decision in that case should provide substantial pressure for the legislature to pass the Zien/Gunderson Personal Protection Act.

    While the Hamdan decision did not give us the Vermont-style carry that we all would love (and few of us thought that it would), it is significant for four reasons:

    a) It drew a distinction between keeping and bearing arms for defense (actively defending yourself) and keeping and bearing arms for security (general self-protection). The word "security" does not appear in the Right to Keep and Bear Arms amendment. The court has now embraced the right to keep and bear arms for security.

    b) It concluded that a citizen's right to keep and bear arms for purposes of security is at its highest when the citizen is securing his home or business, while conversely the government's interest is at its lowest at that time. On its own, this point wouldn't mean all that much except that

    c) the decision allows for what is called an "affirmative defense" in cases concerning concealed carry. In essence, this means that a person arrested for concealed carry can contest the charges by arguing that he had a legitimate and not-unlawful reason to carry concealed on the basis of a constitutionally-protected need for self-defense or security.

    The affirmative defense ruling will result in no small amount of confusion on the part of police officers and district attorneys as to who is carrying under a constitutional protection and who is not. This has the potential of clogging the courts with scores of Hamdan-like cases, and of burdening the appellate courts with having to decide each case on an individual basis.

    d) Perhaps recognizing this potential burden, the court strongly urged the legislature to consider passing a concealed carry permit law.

    This decision now puts the ball in the legislature's court, as there is really no choice but to change the current law. It also puts Governor Doyle in an awkward position: if he vetoes the Personal Protection Act, he will not only allow this state of judicial confusion to continue, but he will also risk having certain unlicensed individuals carrying concealed weapons because the courts have ruled that they can.

    As gunowners, the onus is still on us to make sure that the law the legislature passes is the Personal Protection Act and not some watered-down discretionary-issue permit system. We must continue to keep pressure on our legislators to support Represenative Gunderson and Senator Zien's bills.

    The Cole and Hamdan decisions can be viewed on our website at http://www.wisconsinconcealedcarry.com/html/news.html . Because of the length of the decisions, they're in PDF format.

    The Wisconsin Concealed Carry Association
  3. AJ Dual

    AJ Dual member

    Yes indeed! But why does all legal stuff make you go :scrutiny: when you read it?...

    As I read deeper into the Hadman decision I saw all sorts of good stuff about WI's RKBA being an individual right, and a reccomendation to the Legislature that they enact a permit system...

    Not bad.

    At least you shouldn't get charged for putting a gun in your pocket in the privacy of your own home anymore... :rolleyes:
  4. chaim

    chaim New Member

    Wow, it is amazing some of the laws different states have. Before this ruling WI residents could be arrested for carrying concealed on their own property?!!:what: Even in MD you can carry concealed on your own private property (inside and out) or your business without a permit. In fact, I had asked the state police gun licensing division about the laws about this and it was indeed confirmed that I could carry a gun while working in my yard if I wanted to, so long as I stay within my property lines. The guy I talked to actually suggested that I'd be best off keeping it concealed if I did- in case nervous neighbors would call the cops I'd be saved the hassle since they'd have to investigate and to save me from the possibility of overzealous or uninformed local cops. So as bad as things are here in MD our laws for concealing guns were actually better than WI until this ruling, wow!
  5. Standing Wolf

    Standing Wolf Member in memoriam

    On, Wisconsin! Vermont- and Alaska-style would be the best.
  6. AJ Dual

    AJ Dual member

    Well, seeing as Alaska actually went from a permit to Vermont style, we now know it's possible.

    One step at a time. :D
  7. Monkeyleg

    Monkeyleg New Member

  8. Jim March

    Jim March New Member

    If they try and come up with a discretionary plan, let me know ASAP. It's likely I can get SAF to put me on plane heading your way, so I can regale your legicritters with the horror stories I've collected in California.

    We'll put a rapid halt to THAT idea.
  9. Strings

    Strings New Member

    WELL now...

    That actually looks mighty purty. Now... can we get the 'critters off their backsides and get the PPA through all the hoops?
  10. Monkeyleg

    Monkeyleg New Member

    Hunter Rose: Zien and Gunderson are sending the bill back to the Legislative Reference Bureau for a re-write to ensure that a person does not need a permit to carry in his home or business. That shouldn't take too long. Originally Rep. Gunderson wanted to have hearings in August on this so that they'd be ready to vote when the legislature convenes in September. That timeframe may still be in place.

    Senate majority leader Mary Panzer today released a statement voicing her support for the bill. That's important for a number of reasons, including getting one female senator (who, for now, shall remain unnamed) on board.

    What's really funny about statements from the AG's office, stories in the press and even statements from the Guv is that all of them are saying that it's now legal to carry concealed in your own home or business. It's not. You still have to meet the "need for security" test. It's still a gray area, which I guess is better than being black-and-white.

    Geeziz, our governor is an attorney and ex-AG. You'd think his staff would alert him to his stupidity.
  11. Drizzt

    Drizzt New Member

    Court creates exemption to Wisconsin gun ban

    COURT:The state Supreme Court rules that home and store owners can carry concealed weapons on their property.


    MADISON - The state Supreme Court created an exemption to Wisconsin's ban on concealed weapons Tuesday, ruling an amendment to the state constitution guaranteeing the right to bear arms allows owners of homes and businesses to carry guns on their own property as long as it's for a lawful purpose.

    The court refused to overturn the state's ban on concealed weapons. But it devised a test to balance the 5-year-old amendment's guarantees to bear arms with the state's interest in a general prohibition on concealed weapons in public granted under the 130-year-old ban.

    Justice David Prosser wrote for the majority that it often makes more sense in a home or private business to keep a weapon concealed than to force the owner to display it in plain sight.

    "We do not think it is necessary to spell out the dangers created by making firearms more accessible to children, to assailants, to strangers and to guests," Prosser wrote.

    The justices also urged lawmakers to re-examine the state's ban in the wake of the amendment and to consider the possibility of a licensing or permit system for those who have a good reason to carry a concealed weapon.

    The court issued decisions in two cases Thursday in which defendants challenged the ban on concealed weapons in light of the amendment voters approved in 1998.

    The court voted 6-1 to overturn the conviction of a Milwaukee grocery store owner, who was arrested in November 1999 when police found he was carrying a loaded gun in his pants pocket.

    But it upheld the 2000 conviction of a Milwaukee man after police found marijuana and two guns in his car during a routine traffic stop.

    Wisconsin's concealed weapons law, in place since the 1870s, prohibits anyone but a peace officer from carrying a concealed and dangerous weapon. The right-to-bear-arms amendment voters approved says: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

    Prosser wrote that for the right to carry and keep arms for security to mean anything, it must permit a person to carry and sometimes conceal a weapon to protect a private residence or business.

    Prosser also wrote that the state can ban concealed weapons when someone is carrying them for an unlawful purpose.

    Otherwise, the courts have to consider two questions in determining whether someone has violated the ban:

    • Did the defendant need to conceal a weapon substantially outweigh the state's interest in enforcing the ban?

    • Did the defendant lack a reasonable alternative to concealing the weapon in exercising the right to bear arms?

    Attorney Chris Trebatoski, who represented the Milwaukee shop owner, said it's likely people besides home and shop owners will argue in court that they, too, should be allowed to carry a concealed weapon.

    He said it would take legislative action to clear up the relationship between the amendment and the ban, as well as address permits.

    "The litigation is going to be, when is it appropriate for somebody to carry a concealed weapon outside their home or place of business?" he said.

    Lawmakers have introduced several bills in the past several years to change the state's concealed weapons ban.

  12. Monkeyleg

    Monkeyleg New Member

    "Otherwise, the courts have to consider two questions in determining whether someone has violated the ban:

    • Did the defendant need to conceal a weapon substantially outweigh the state's interest in enforcing the ban?

    • Did the defendant lack a reasonable alternative to concealing the weapon in exercising the right to bear arms?

    Attorney Chris Trebatoski, who represented the Milwaukee shop owner, said it's likely people besides home and shop owners will argue in court that they, too, should be allowed to carry a concealed weapon."

    Thanks, Drizzt. There's the gray area. You won't know if you're a criminal until the cops, DA and judge try to figure out if you're a criminal. If they can't figure it out, they'll kick your case up to the appellate court where maybe somebody will say, "hey, this Drizzt guy looks like he has a right to be secure." Or maybe the DA or judge will be too afraid of the political fallout, and will just kick you loose right there.

    Welcome to the confusion that is Wisconsin.
  13. Strings

    Strings New Member


    ... so how can we use this "grey area" to our advantage? From what I've read, it could also lead to a defense of "need to be secure" outside of either home or business (the example used most often being a businessman doing a late-night deposit). Is there some way we can push just a bit to help our cause?
  14. AJ Dual

    AJ Dual member

    What can we do to "push it" between now, and this fall when the legislature votes? Probably not much. We even run the risk of an incedent that would create bad press before the vote.

    The only thing I can even remotely concieve would be the WCCA, NRA, or some such group forming a legal defense fund that will clog up the courts with CCW defenses for caught RKBA activists who started carrying. Then the effort could be used to further the "might as well" attitude regarding permits that was in the SC decision handed down.

    Frankly, that seems a bit far fetched... And it could backfire even if we could get it off the ground.

    AFAIK, the Personal protection act will likely pass both the house and senate, that's likely a done deal. What remains to be seen is if it's a veto-proof majority, if Doyle will veto, sign, or let it pass unsigned by default in exchange for some other consession he wants from the legislature on the budget, Indian gaming etc. And if he does veto, if the vote was veto-proof enough so he can or can't buy off enough legislators with local pork or consessions to have the override fail.

    Unsure at that point. :( But it's pretty much up to Doyle, and what kind of leverage is used on him, and he has on others at this point.

    Calling our reps, senators, and the govenors office at the right time to encourage the strongest majority possible is our best effort.
  15. Monkeyleg

    Monkeyleg New Member

    One thing we have to do is make sure that the Republican assemblymen stay in line. Last year Rep. Gregg Underheim (Oshkosh) voted against the bill, and he's feeding his constituents a line of bull right now. He claims that a majority of his constituents are against it. That's odd, since one other assemblywoman and the senator from that district are for the bill. Perhaps his polling is flawed.

    Perhaps we should concentrate our message on the idea that the court ruling is going to result in scores of untrained, unlicensed individuals carrying concealed weapons as approved by a court, and the state has no way of tracking them. Not to mention, of course, that the state has no way of taxing them, either. There aren't too many things that will perk Doyle's ears up as much as the rumor that something isn't being taxed.
  16. PileDriver

    PileDriver New Member

    the 2nd amendment is america's ccw law and all you need.

    since when do we need the government's "permission?"
  17. twoblink

    twoblink New Member

    How is it that you cannot do what you want in your own home? The "British Castling Act" of which America inherited; states that the man is king of his castle.. If it's legal to do somewhere in the land, it's legal for the man to do that in his own home..


    I'm just waiting for them to legislate that I have to use a fork instead of a knife at dinner :banghead: :fire:
  18. Strings

    Strings New Member


    >AFAIK, the Personal protection act will likely pass both the house and senate, that's likely a done deal. <

    IIRC, we had the same feeling last year, going into the Senate. Then a certain senator pulled a couple cheap tricks, and we lost...

    Monkeyleg... I like your suggestion of talking about "untrained people walking around carrying". Might drive some of the bliss-ninnies crazy...

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