(WISC) State v Fisher - audio link

[mpthole]

Anyone interested in the state of concealed carry in WI should take the time to listen to this argument currently before the WISC. Its in streaming audio, and its about an hour and 20 minutes in length.

Link to WI SC website

The short version is that the lawyer for Fisher really hit a home run; and it seems like the justices are finally thinking about the implications of 941.23.

 

[Ovid]

Thanks for this. You can also download the audio with FlashGet, instead of streaming it.

 

[AZRickD]

What's the synopsis of the "short verson?"

Rick

 

[FireBreather01]

I was struck at how the discussion was heavily themed toward the rights of WI citizens, under the WI Constitution, to be able to carry a concealed weapon, not to simply protect themselves, but to feel secure - a wholly different proposition - and many of the comments of the Justices seemed to support this notion. In fact, they made distinctions that carrying to defend property is not a primary motive, in fact not even appropriate, but carrying a concealed weapon for safety and security of person is appropriate, even necessary.

Because Fisher claimed to be carrying to defend himself as he carried deposits from his business I expected this case to be narrowly argued along the lines of the vehicle, and even his person, being an extension of his business as he made these deposits at the bank. Thus under Hamdan, the SC has already ruled a business owner could carry concealed while at his place of business.

Fisher's attorney made a brilliant statement that previous decisions by the court striking down a citizen's right of self defense implied that one needed an imminent threat to legitimize carrying for self-defense, but that the RKBA amendment in WI's Constitution provided citizens the FUNDAMENTAL RIGHT to bear arms for SECURITY, not strictly for self-defense - security being a persistent state of peace, not an imminent threat. Brilliant!

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

Fisher's attorney, somewhat presumptively in my opinion, asked the SC to delay the effective date of their decsion to allow the legislature time to change the laws to mirror the Constitution. He must certainly expect a very favorable decision!

 

[Ovid]

Is the ruling in this case going to have much of an impact on the "personal protection act" either way?

 

[Silent-Snail]

Can't see why it wouldn't, then again I didn't think the Patriot Act would pass.

 

[mpthole]

Is the ruling in this case going to have much of an impact on the "personal protection act" either way?

Best case scenario is that the SC strikes down the entire statute banning concealed carry. Fisher's lawyer told the SC that its not their job to carve out exceptions to law, but to determine if a law is constitutional; its the legislature's job to write law; and therefore, if they find any part of the law unconstitutional then it (the whole thing) should be stricken. Otherwise, they will forever be hearing cases to determine if they meet any number of exceptions to the law. I think Fisher's lawyer made this point very clear and it seems like the SC justices agreed with him. If this were to happen, we'd basically have Vermont/Alaska carry.

I think the worst case scenario it that they do absolutely nothing, find in the State's favor and we continue to have the ban on concealed carry. If this happens, then (IMO) we continue to pursue the personal protection act; and possible open-carry routes.

 

[Henry Bowman]

mpthole - The open carry "walks" (not marches) were a HUGE influence in Ohio.

 

[mpthole]

Henry - believe me, I know. I wasn't able to get as involved as I would have liked last year to get the ball rolling in WI. Don't know if I'll be able to this year... but I'm a HUGE proponent of open-carry. I have e-mailed quite extensively in the past with one of the OH organizers. Maybe this is the year it'll finally happen.

 

[beerslurpy]

The SCOWI seemed to be very leery of carving out exceptions to save the statute because it would become swiss cheese from all the as-applied challenges. Even I know that this is basically the same as saying the statute is facially unconstitutional.

Unless the legislature finds some miraculous way to restrict carry without violating the constitution, they are going to have vermont style carry. Wow, what an about face from 2 months ago when everyone was pissed off at the governor and the 1 turncoat state rep who wouldnt vote for an override.

 

[AJ Dual]

Should the State Supreme Court rule completely in our favor and just strike 941.23 altogether, I can't see WI staying "Vermont carry" for long.

If they did actually strike 941.23 in a fit of judicial pique, everyone in the legislature would be piling on to submit a bill. We'd be flooded. Then the pro-CCW forces in WI would be in exactly the opposite circumstance as all years prior. Instead of striving to pass any CCW in WI (Although all the bills have been pretty good, way better than Ohio, for instance…) we'd be in the position of trying to beat back all the bad "may-issue" bills and poison-pill amendments.

In reality, I think the justices are just trying to send a message to the legislature with their questions. They've already directed the legislature/Governor to pass "something" to clear up the conflict between the WI state RKBA amendment vs. 941.23 once already. My gut tells me that they're not really going to rule as broadly as the questions during the oral arguments suggest, they're just firing another shot across the legislatures bow to take up some kind of clarification of concealed weapons, and that they're irritated that the PPA has failed in the past two legislative sessions since the Hamdan ruling.

I also suspect that the new Justice that Doyle appointed that replaced Sykes will be the spoiler from us really seeing a "Vermont decision" from this court. Doyle had to know CCW would come back up again when making his selection. Although, I could be wrong, justices have been known to get a severe independent streak once on the bench.

All things considered, I'm still only expecting an improvement in the scope of carry via affirmative defense. I can't completely discount the possiblity, but I'd be blown away if we actualy see de-facto Vermont carry from this case.

If we actually did get "Vermont carry" for about a year before the legislature pounces on it, then we are put in the position of fighting to get the best CCW bill possible. That's what's realistic.

I can only imagine what a pain the WGO is going to be then. The "Executive Director" has got to be licking his chops with the salary he'll be able to pay himself from his little mailings if that situation comes to pass.

The other thing that needs to be examined in the face of potential Vermont carry, is what's actually better for the health of WI RKBA in the long run? The pure constitutional/RKBA principle, or that people actually carry? I can easily envision a scenario where if we did "go Vermont", a pattern of LEO, prosecutorial, and media harassment of legal CCW at the city and county level leaves gun owners in limbo.

The average Joe can easily have his life/family/job ruined by arrest and court, even if the Supreme Court says he prevails in the end. Despite the revolving door justice the scumbags in our society seem to enjoy, such an experience is devastating and very stressful to a good person. And that means that many people who want to, won't carry. As much as I believe in the principle, Vermont-style carry but applied "Wisconsin style", with no follow on CCW licensing might be a disaster.
I hope not.

 

[Strings]

>a pattern of LEO, prosecutorial, and media harassment of legal CCW at the city and county level<

Ummm.... nope. We have a preemption law, stating that no municipality or locality may have a gun law more restrictive than the state. Any DA or LEO trying to pull such would find themselves in a serious bind, facing charges and lawsuits...

 

[AJ Dual]

Ummm.... nope. We have a preemption law, stating that no municipality or locality may have a gun law more restrictive than the state. Any DA or LEO trying to pull such would find themselves in a serious bind, facing charges and lawsuits...

I agree with you 100%. In the long run it won't be pretty for the department or DA that tries to harass the Vermont-carrier. But there in lies the rub. The long run...

When will we have enough legal abuse lawsuits that everyone else is safe? How many sacrificial lambs for our cause will it take to make us have practical Vermont-carry in WI? As onerous as it is, at least the legislation to license our rights has a definitive quality to it. Something I fear a Vermont-carry decision from the WISC would lack.

Should the WISC gut 941.23 it's small comfort to the first guy who gets arrested on whatever else they can come up with, "reckless endangerment", "terrorist threats", "disturbing the peace" etc. I'm worried that there are police chiefs, DA's, courts, whole municipalities even, willing to "take one for the team" and ultimately lose their cases, plus subsequent lawsuits, all to try and discourage Vermont carry just through threat of being ground up in the legal system. What's more, I'm concerned it will work.

I don't like being pessimistic, I just see great potential here for a "win the battle, lose the war" scenario.

I'm talking about what happens right now with open carry harassment. In fact, it doesn't happen in WI, because almost no one open carries, for fear of what will happen. (Insert chest-thumping open carry argument in rebuttal here...) It's a nasty little catch-22 that keeps open carry off everyone's radar, both pro-gun and anti. (Please, no one chime in with anecdotes about your daily WI open carry, in your Northwood's town of pop. 100 where your brother-in-law is the CLEO. Thanks. )

A pre-announced open carry walk is great idea to promote the PPA's passage here in Wisconsin, but it's a lot different from carrying openly, alone in your day-to-day life. The societal pressure to not do it is enormous. The very concept of an open carry walk proves my point. If it's "legal", why is it such a big deal? Why would an open carry walk even make a point then?

I want to be clear, I am not against the WISC ruling as broadly against 941.23 as possible. Despite all my reservations, I welcome it. What worries me is that a ruling from the WISC that completely strikes 941.23 would put concealed carry right into the same practical limbo as "legal" open carry. I'm just casting about for ideas to see that it doesn't happen that way.

It would be both wonderful and ironic if Wisconsin leap-frogged to the "second wave" of Vermont-style carry that Alaska has kicked-off. And the other states that are now taking it up, realizing that licensing law-abiding citizens is a futile exercise at law enforcement by exclusion from the criminal class. I just want to be prepared for the entirely different set of problems it would present us.

 

[Strings]

Well, the first difference is that between open and concealed: I know LOTS of people who have carried concealed here in WI for years, and never had a problem. Heck, I know some who would talk to cops about different things WHILE carrying, and it was never a problem: they simply kept their weapon concealed. With open carry, it's right out there for everybody to see...

The next issue is going to have to wait until we HAVE such a case: it's dependant on what the charges are, and the circumstances of the arrest. However, just like what the Appleton police chief came up with about CCW (treating any licensee as a felony stop), the issue of "abusing CCWs" would come to a halt pretty damn quick: you're not only talking about charges getting dropped, but the serious possibility of charges/lawsuits going against the elected officials/LEOs. Not gonna take much for them to realize they should leave us alone...

So I'm cautiously optimistic. Heck, I'd ove it for nothing more than being able to tell my assemblycritter to go pound sand...

 

[Monkeyleg]

The questions posed to the deputy AG by the justices in Hamdan were very pointed as well. But we still got a very narrow decision, perhaps because Hamdan's attorney was making very narrow arguments.