"A right unexercised is a right lost..."

Status
Not open for further replies.
M

Monkeyleg

Member.
Joined
Dec 25, 2002
Messages
5,057
Location
Decatur, AL
Ever since the disaster of the November 7th elections, I've been reading this kind of statement in emails, and online forums.

Here's the problem, though, and feel free to correct me if I'm wrong: the US Supreme Court has never said that there is a Constitutional right to carry a firearm, either open or concealed.

In the 2003 Wisconsin state supreme court decision in the Hamdan case, the court explicitly stated that open carry was legal in Wisconsin. However, the court did not address the superfluous charges that could accompany open carry: disorderly conduct, or disturbing the peace.

Without the court addressing the DO or DP charges, I see no right. I could be arrested just for carrying openly.

There's hundreds of thousands of Cheeseheads who now recognize that they voted for the wrong candidates (meaning they voted for Doyle instead of Green, and voted for legislative Democrats), but who now want to "take back their rights."

What rights?

DO and DP are municipal violations. I don't see anything in WI code that gives the state the power to override municipal code.

I'm hoping some legal types here will share their knowledge.
 
There are several rights I hold very dear which I have not exercised but which are not lost thereby. I have never had a trial by jury, refused to be a witness against myself, protested against troops being quartered in my house, or avoided judicial torture.
 
There are several rights I hold very dear which I have not exercised but which are not lost thereby.
Click to expand...
I don't think it's so much that any one individual will lose the right if they haven't exercised it, it's more along the lines of "people don't seem to be exercising this right, so we can create laws that infringe on it (because not enough people will raise a fuss to make it an issue)".

Although technically the right hasn't been lost, it has been encroached upon, and your ability to exercise the right without harrassment has been reduced. (Like having to fear a disturbing the peace or disorderly conduct fine for open carry.)

Sorry ML, can't help on your question.
 
There are several rights I hold very dear which I have not exercised but which are not lost thereby. I have never had a trial by jury, refused to be a witness against myself, protested against troops being quartered in my house, or avoided judicial torture
Click to expand...
All these are potentially under threat even now. But without a doubt, there has been a vigorous and concerted effort to destroy the rights to arms for many decades. Open carry is certain to be very high on their list.

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

http://ussliberty.org
http://ssunitedstates.org
 
How do we exercise our 3rd amendment rights?:neener:

Perhaps if you get enough people to Open Carry you can get CCW passed.

For example if they one person for open carry then you can try to organize 100 people outside the courthouse open carrying. That will get their attention I am sure.

The Open Carry marches worked in Ohio from what I have been told. If we had Open Carry here in IL I think this would be a very effective tool to achieve CCW. But in IL I think they would just make open carry illegal.
 
Here's the problem, though, and feel free to correct me if I'm wrong: the US Supreme Court has never said that there is a Constitutional right to carry a firearm, either open or concealed.
Click to expand...

Here's the thing: It is NOT the role of any court, supreme or otherwise to give us permission to excercise our rights.

What IS their role is to strike down such laws that unjustly interfere with the excercise of our rights.

This difference is subtle, but important, and has a big impact on the dynamics of the overall transaction.

SCOTUS has remained silent on what are to us self evident violations of the rights protected by 2A. At the root of this is a combination of judicial cowardice, and tactical politics.

The enemies of freedom prefer a Schroedinger's Cat Constitution, sitting ambiguously in a box, both dead and not dead. This is judicial cowardice, in that they know if they simply declare this, that or the other thing dead that there would be severe repercussions. Rather, leaving it ambiguous leaves plenty of room for maneuver, negotiation and selective infringement, without the mess of a popular backlash that is part and parcel of a more blatant and widespread power grab.

The friends of freedom, OTOH, know that they simply don't have the judicial votes, and prefer to leave the situation unresolved, to be rectified later (or in other venues) than to risk a negative resolution.
 
Then you're not looking hard enough. If you're carrying an openly holstered gun, not doing anything worthy of suspicion, what is your crime?

Who has said they will arrest you?
Click to expand...
I was told by a former Milwaukee police officer that you would be arrested if you open carried in that city.
 
I read once somewhere that the Missouri Supreme Court looked at a case where the convicted guy was whining about his failure to get a speedy trial or maybe a jury trial.

Anyway, the convicted guy waited too long.

One of the MO supremes said, "A right not asserted is a right waived."

I will never forget it.

Thus, when anyone asks why you do something, like have a EBR, refuse permission to search your car, refuse to speak to a leo, open carry or whatever, just remember.........

Use it or lose it.

No other reason required.
 
In the 2003 Wisconsin state supreme court decision in the Hamdan case, the court explicitly stated that open carry was legal in Wisconsin. However, the court did not address the superfluous charges that could accompany open carry: disorderly conduct, or disturbing the peace.

Without the court addressing the DO or DP charges, I see no right. I could be arrested just for carrying openly.
Click to expand...

Of course you could be arrested. You can be arrested for just about anything these days. ;) I think the point of Hamdan is that in order for the WI RKBA amendment to mean anything, there must be a way to exercise is.

From paragraph 41 of the decision:
p41 Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25
[emphasis mine]
Click to expand...

and in paragraph 72:
p72 The State argues that even under the strictest enforcement of the CCW statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open——holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall, or otherwise placing the weapon in plain view. Relying on this reasoning, the State quarrels with any legal conclusion that application of the CCW statute to Hamdan in his circumstance rendered his rights illusory. See, e.g., State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) ("[CCW] statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is the concealment").
Click to expand...

Therefore: if you can be arrested and jailed on a DC/DP charge for exercising your RKBA, then the right has become "illusory" and functionally disallowed the exercise of that right.

Plus, WI also has a state pre-emption law. If a city/municipality/county/whatever passes an ordinance that is more strict than the state law (WRT firearms), it doesn't mean anything. State law trumps it. It's really a losing battle for any DA. We just need the stones to go out an do it.

Just my $.02.
 
mpthole, the Hamdan decision absolutely affirms our right to open carry.

Our pre-emption law prevents municipalities from enacting gun ordinances more strict than state law.

But the pre-emption law has nothing to do with disorderly conduct or disturbing the peace.

So, we have a right but we cannot exercise it without being willing to be arrested on another charge.
 
So, we have a right but we cannot exercise it without being willing to be arrested on another charge.
Click to expand...
... for now.

I agree with you - someone open carrying may very well be charged with DC. *I* think that is where the battle needs to begin, by getting everyone in the state to understand and accept that open carry is perfectly legal. Soon thereafter it may even become "acceptable". The point is, we will never know until it starts happening.

Additionally - and I've offered this challenge several times in the past (though not to you specifically) - I would like to have someone somewhere show me at least one example of a DC charge sticking to someone that was openly carrying. I've never found one and no one has ever been able to point to one. So really... all this talk about being arrested for DC is just that: "talk".
 
Mark, here's the other thing: even if a DC or DP charge doesn't "stick," there's few people who are willing to be cuffed and stuffed into a squad, and then sit behind bars waiting to see an assistant DA, perhaps over the weekend.

That's where they have us by the short hairs.

I haven't sent out the email yet, but our brainstorming meeting will be on Saturday, January 27th at the HJ's hotel/motel meeting room in Oshkosh. The meeting will start at 10 am and run as long as we need to.
 
I think what's being discussed here is basically putting the Bell on Schroedinger's Cat.

Rather then a small group (say less then 50 people). There needs to be a LARGE group (greater then 200) attend the Open Carry "Stroll". A march is to confrontational, whereas a Stroll is just a casual jaunt, people watching and window shopping, getting some fresh air and exercising your rights.

Dick, I'm truly surprised that ED/WGO has not taken the lead on this vital issue and organized his supporters to make this happen. It strikes me as a very "No Compromise" proposition/activity.
 
scout26, I suspect that anything resembling real effort would inconvenience ED, and probably derail his money train. It's my opinion, based upon every bit of information about WGO available to the public, that WGO is either an anti-gun organization, or that WGO is just in this for the money.

This fight isn't over, and we are not standing down. There are things being discussed, and plans being made. I know I frustrate people when I hint at "secret" things. Half of the really "secret" stuff I'm not even privvy to. I only wish that everybody could know that the battle goes on.

If everything goes right, 2007 is going to be a real watershed year for gun politics and gun rights in Wisconsin.
 
Mark, here's the other thing: even if a DC or DP charge doesn't "stick," there's few people who are willing to be cuffed and stuffed into a squad, and then sit behind bars waiting to see an assistant DA, perhaps over the weekend.
Click to expand...

Conversely, there are few police officers willing (and stupid enough) to wrongfully bully and subsequently arrest a group of say 2 dozen openly armed and otherwise law abiding citizens.

Here's a trick I've learned, brought up in another thread here on THR. Get video. Don't let it turn into a "he said, she said" with the cops. They will fall into generally 3 categories.

1: 'they're not doing anything illegal or wrong, let's leave them alone unless they commit a crime'.

2: 'Decent armed & law abiding citizens, let's leave them alone'.

3: 'openly hostile, let's find something to charge them with and get them out of here.'

Some of #1's are a little suspicious, but mainly to the point of observation.

My 1st hand observations are that most LEO fall into the #1 category. About 10% fall into #2, and another 10 fall into #3.

My suggestion to you is to do some legal research on the DO / DP case law. Chances are your state courts have ruled on what is, or is not a "breach of the peace", and you can use this. Write your 'friend' an official correspondence asking him to justify his earlier threats in light of 'such and such' court ruling. Keep him talking. Just like cops do to defendants, you want him to keep talking no matter what, if he puts it in writing, all the better. Don't get hostile or belligerent, stick to the facts. When (not if) he trips up and threatens you with unlawful arrest, go to the local governing body and call him on the carpet in public and demand that his actions be justified. Grass roots groups all over the country do this, and the reason is that it is effective.

You know how sometimes you're in an argument or disagreement w/ your spouse, partner, S.O., whatever... and you realize at some point in the discussion that you're either wrong, not on the moral high ground but you are too stubborn & proud to admit this, so you argue that much harder? Sooner or later, you realize that was in error, and you apologize - or break up, get divorced and the like.

I'm willing to bet the police chief values his job more than his desire to keep you disarmed unlawfully.

HTH
 
Training Bulletins

Perhaps getting a friendly sheriff or PD to issue a training bulletin upholding the validity of open carry in a legal sense to the officers. That's how things got started in Washington and Oregon on the open carry issue.
 
Reviving this old thread...

Someone informed me of a case click me where someone was arrested and charged for DC while open carrying/carrying concealed.

His synopsis was:
He was open carrying while trick or treating with his kids and wife back in 2001. A woman reported him to the police because she saw the gun in his holster. The cop who showed up at the scene said in his report he saw the firearm in his holster.
He was arrested and taken to jail. Because the holster obscurred part of the gun he was charged with carrying concealed and DC. [emphasis mine]

Three years of court dates later the DA offered him a deal, plead to the DC with right of appeal and the CCW charge would be dropped.
Click to expand...

While I can completely see why someone would finally just give in to a plea deal, pay a fine and get on with their life, the DC charge was still not tried before a jury or taken to the WISC. So, yeah he was arrested and charged. He eventually plead guilty to just be done with it. (Where was WI Gun Owners & the "Executive Director" then? ;) :rolleyes: )

And how can a holster not obscure part of a gun?!? :banghead:
 
Can you find a municipality or unincorporated part of a county that does not have a DO or DP law? If so, it may be in the boonies, but may be a place to start. Can you find some friendly territory in which to stage a walk and make news? Perhas where there is a sympathetic CLEO? Then once there is a track record of no disorder or disturbance start moving into less friendly territory. Also, if there are 100 people obeying the law and peacefully walking, it is difficult to arrest all of them. There is safety in numbers.
 
Status
Not open for further replies.

Similar threads

X
  • Locked
WI: New push made for concealed carry
Replies
2
Views
272
Standing Wolf
S
M
  • Locked
court upholds lead paint lawsuit (yes, gun-related)
Replies
5
Views
485
Standing Wolf
S
2
  • Locked
And so it starts: The end of gun control
Replies
18
Views
1K
Ash
A
S
  • Locked
(WI) 130-Year-Old Ban on Carry Conceal Gets Court Change
Replies
5
Views
741
AZRickD
A
M
  • Locked
WI: another supreme court challenge on CCW
Replies
16
Views
837
Strings
S
Back
Top