The gun issue in Wisconsin got quite a bit more interesting last week with the interpretation by WI Attorney General J.B. Van Hollen that "open carry" is a constitutional right, and police do not have legal authority for using Disorderly Conduct laws for prosecuting those who choose to exercise this right.
"Open Carry" is when someone is carrying a firearm in public without concealing it. For example, taking a stroll down Oakland Avenue with a pistol in a holster on a person's hip, in full view --- or carrying a rifle on a sling.
Van Hollen's interpretation was based upon the fact that in November 1998, Wisconsin voters ratified an amendment to the state constitution which states: “The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose.”
This interpretation has become very important to those who advocate gun rights, in as much as Wisconsin is one of only two states out of 50 that does not have a "concealed carry" law on the books. The other state is Illinois.
The legislature has tried to pass a concealed carry law twice, but both times Governor Doyle vetoed the laws.
Despite the Doyle's reluctance to pass concealed carry laws, concealed carry has become legal in many instances, through judicial interpretation by the WI Supreme Court, once again due to the constitutional amendment passed by the voters in 1998.
As described by the Legislative Reference Bureau in Brief 08−16
In State of Wisconsin v. Munir A. Hamdan,
264 Wis. 2d 433 (2003), the Wisconsin Supreme Court ruled that Hamdan’s constitutional
right to bear arms had been violated, overturning his conviction for violating the law. Hamdan, the owner of a family-run grocery store in a high-crime neighborhood in Milwaukee, routinely kept a loaded gun under the counter near the cash register. In addition to numerous violent criminal incidents outside the store, his premises had been the target of four armed robberies in recent years.
In one, the assailant’s gun misfired when the trigger was pulled, sparing Hamdan’s life. In another, he shot and killed a robber in self-defense. In the incident at issue, he was in the process of putting the gun in storage for the night when he was discovered by police to be carrying it in his pants pocket. The court found that the statute could not be constitutionally applied in this situation because Hamdan’s personal interest in having a concealed weapon in his store outweighed
the state’s interest in enforcing the statute:
If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises. The court went on to state that a Wisconsin resident has the right to carry a concealed weapon on his or her property, business, or
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home, when: 1) the need to exercise this right is significant, 2) the person has no other reasonable
means to keep and handle the weapon, and 3) the person was not motivated by any unlawful purpose in concealing the weapon.
One quirk in Wisconsin gun laws is due to a DNR law that was intended for hunters, and mandates that they do not transport their weapons in vehicles unless they are unloaded and cased. This hunting law has been used throughout the state to apply to anybody transporting a weapon in a vehicle, whether engaged in hunting or not.
However, the right to carry a concealed weapon in a vehicle, in some instances, was affirmed in Milwaukee.
Citing the Supreme Court precedent above, a Milwaukee Circuit Court Judge ruled as follows for a Pizza Delivery Person who defended himself ----
A Milwaukee County judge found the concealed-weapon prosecution of a pizza driver who shot two would-be robbers in seven months unconstitutional Monday.
The ruling by Circuit Judge Daniel A. Noonan means Andres Vegas won't face criminal charges in the non-fatal shootings. Prosecutors had filed a misdemeanor count of carrying a concealed weapon after the second shooting, in January, and said Vegas had been warned after a July 2006 shooting not to carry a concealed gun while driving for his job.
However, Noonan agreed with defense attorneys' contention that Vegas needed the gun to protect himself in his chosen work, citing state Supreme Court decisions that found justified exceptions to the state's concealed-carry ban.
"Given Vegas's experience, he has a need for a gun at a moment's notice," Noonan writes in his decision. "Enclosing and unloading the weapon is not a reasonable alternative to secure and protect his safety. Plus, Vegas while delivering pizzas enters and exits his car constantly; it would be unreasonable for him every time that he enters his car to require him to unload it and place it in a case and then reverse the process every time he exits. This defeats the purpose of having the gun for security and protection."
Particularly noteworthy in this case was the reluctance of the Milwaukee District Attorney to appeal the decision. Most likely the District Attorney's office did not appeal, as they felt an appeal would go against them and broaden the precedence for "concealed carry" through Judicial Interpretation.
The MJS article went on to say:
"Deputy District Attorney Kent Lovern said the office has no plans to appeal the decision. An appeal could give a higher court an opportunity to hand down a precedent-setting decision on whether the concealed-carry prohibition is constitutional, whereas Noonan's decision applies only to Vegas's case."
Taking the Supreme Court interpretation of a Right for Concealed Carry under certain instances, and the Milwaukee District Attorney's reluctance to appeal the Pizza Case, there are now more Gray Areas in carrying a concealed weapon, that leave Police with little guidance in how to treat such cases.
Legislative Action that would have "codified" the carrying of guns being vetoed by Doyle, has not helped the situation.
Now with Van Hollen's interpretation that Citizens have the Right to Carry Guns in the Open -- the Police are left with even More Questions, and Less Guidance !!
So there we have it --- A Mexican Standoff --- " a strategic deadlock or impasse, in which no party can act in a way that ensures victory" *
The "Anti Gun People" and the "Pro Gun People" cannot get all that they want in this impasse, and only a compromise giving some to both sides of the issue will resolve it.
It is in EVERYBODY's interest for:
1) The Legislature and Governor to pass legislation that insures the rights of citizens to protect themselves and to Bear Arms with Concealed and Open Carry Laws
2) Have a Set of Rules for Concealed Carry --- (Training Requirements, Background Checks, Licensure, etc.
3) And to have a Clear Set of Rules for Open Carry, such as when Hunting .........
It is time for the Governor and the Legislature to clear up this issue --- so everyone --- the Citizens, the Police and the Courts, have a Clear Set of Rules, and Safeguards.
So far, 48 other States have had the wisdom and intelligence to pass Clear and Concise Gun Laws ---- maybe now with our Mexican Standoff, Wisconsin can have them too.
* Definition Wikipedia
What do you think ? Your Comments are welcome !