To: Jeri Bonavia, Executive Director, WAVE Educational Fund
From: Brady Center to Prevent Gun Violence, Legal Action Project
Date: August 17, 2006
Re: S. 403 – “Shall-Issue” CCW Bill

Supporters of the proposed concealed-carry bill, S. 403, are claiming 1) that the Wisconsin Supreme Court created a “mandate” for the legislature to pass S. 403, and 2) the Supreme Court could strike down Wisconsin’s current prohibition on carrying of concealed weapons, which would leave the state with no regulatory authority over the carrying of concealed weapons, unless they pass the proposed bill now.

These claims are incorrect. Wisconsin’s current prohibition on the carrying of concealed weapons has recently been upheld as valid and constitutional. It has been limited by court ruling, but nothing in the Court’s ruling, or in Wisconsin’s Constitution, requires the legislature to pass a new law, and most certainly not the type of “shall-issue” law being pushed by the gun lobby.

Facts

Wisconsin’s current law, § 941.23, broadly prohibits the carrying of concealed weapons: “Any person except a peace officer who goes armed with a concealed and dangerous weapons is guilty of a Class A misdemeanor.” This statute has been broadly interpreted and consistently upheld by the courts to prohibit the concealed carrying of a weapon, with no exceptions (other than for law enforcement). See State v. Cole, 264 Wis.2d 520 (2003); State v. Nollie, 249 Wis. 2d 538 (2002); State v. Dundon, 226 Wis. 2d 654 (1999).

In 1998, Wisconsin amended its Constitution to recognize a right to keep and bear arms: “The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose.” Art. I, Sec. 25.

This year, the gun lobby introduced a bill, S. 403 (and companion A. 763) which, among other things, allows current, retired, and out-of-state law enforcement, as well as anyone licensed by Wisconsin or other states to carry concealed weapons. The bill is a “shall-issue” bill, which requires the state Department of Justice to issue a concealed-carry permit, valid for five years, if the applicant meets certain minimum criteria.

Analysis

The court case which the gun lobby is pointing to as creating a “mandate” for passage of the proposed bill is State v. Hamdan, 264 Wis.2d 433 (2003). Hamdan is a shop owner who was convicted under § 941.23 for having a concealed weapon in his pocket while working at his shop in 1999. Hamdan argued that the new constitutional amendment invalidated application of § 941.23 in certain situations, such as his, where he needed to carry the weapon for security.

The court specifically rejected Hamdan’s arguments that prior court rulings interpreting the statute should be overturned and it upheld the constitutionality of the statute on its face. See Hamdan at 27, 46. The Court reiterated that “Art. I, Sec. 25 does not establish an unfettered right to bear arms” and that the state can impose reasonable regulations on weapons, including the general prohibition on carrying concealed weapons. Id. at 41.

Although the Court upheld the prohibition on concealed weapons on its face, it found that the law was unreasonably applied in Hamdan’s case, and struck the statute down as applied to those facts. The Court took care to explain that it was ruling only that the statute unreasonably impaired the right to keep and bear arms under the facts of Hamdan’s case – where the need for a weapon was substantial because of prior robberies and work in a high-crime area, he could not reasonably keep the gun in the open, and he had no intent to use the gun in a crime. On those facts, the court found that “strict application of the CCW statute effectively disallowed the reasonable exercise of Hamdan’s constitutional right to keep and bear arms for the lawful purpose of security.” Id. at 6.

The court went on to superfluously state, in a section of the opinion labeled “Commentary,” “[w]e urge the legislature to thoughtfully examine § 941.23 in the wake of the amendment and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon.” See Hamdan at 85. First, it should be understood that a court can never create a “mandate” for a legislature to do anything. The Wisconsin Supreme Court cannot require the legislature to pass a particular bill, or any bill. The Court was only explaining that enforcement of the concealed-carry prohibition, in light of the constitutional amendment, would likely be an issue for law enforcement in future cases and that only the legislature, not the Courts, can amend the statute to prevent any possible conflict. The Court recognized this when it said, “[t]he decision over whether to require the permitting of those who wish to carry concealed weapons in any circumstance fully remains with the legislature.” Id. at n. 27.

The Court clearly upheld the current concealed-carry prohibition and found it constitutional on its face. The Court did indicate that the statute may be found unconstitutional in other situations where individuals are convicted for carrying weapons on their own property. Id. at 59–68 (while specifically noting that the right to keep and bear arms on one’s own property is not absolute - “The state retains the ability to regulate gun ownership, use, possession, and transportation of firearms even with respect to matters occurring in one’s own home or place of business.” Id. at 67 n. 31). But there is no indication that the Court will go further and strike down the statute in other situations.

Second, even if a new statute is desired in order to clarify the issue for law enforcement and the public, that is no reason to pass a shall-issue statute. If the court should go so far as to strike down the current prohibition, the legislature would have an opportunity to pass a new statute at that time. One of the judges even noted that the effective date of the ruling could be stayed, to allow the legislature time to act.

More importantly, a new statute does not have to be, and should not be, a “shall-issue” law, or even any type of licensing or permitting system. Nothing in Art. I, Sec. 25 requires a licensing or permitting system. Wisconsin may retain its prohibition on carrying concealed weapons, and there is no need to pass the “shall-issue” bill, S. 403.

Last edited by bs.   Page last modified on August 17, 2006

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