Ask Senator Plale what was he thinking about yet more guns in the neighborhoods?

(vetoed by the Governor, Senator Plale voted to override the veto.)

Sections of our question that the Senator did not answer are rendered in RED. As the Senator’s answers are delivered we will publish them in full here.

Milwaukee Renaissance asks Senator Plale:

Dear Senator Plale

I believe you have misrepresented the advice of the Supreme Court. You referred to the Hamdan case which generally upheld the constitutionality of Wisconsin’s current law against concealed carry. They carved a narrow exception to the keeping of a gun on the premises of a business in a dangerous neighborhood.

You have stated repeatedly that the Supreme Court directed the legislature to pass concealed carry legislation. You want to give the impression that the Supreme Court endorsed your proposed legislation. You know that is not possible.

QUESTION 1

Why would the Supreme Court want any of the following features of Your proposal: (please speak to the law you supported, not to vague generalities of what other states are doing)

Secret licenses, even police are blind-sided from obtaining this information during domestic violence calls. Neighbors have no input even though they may know the applicant better than the government. Secrecy is repellant to a democracy. You say you are against keeping the police in the dark about guns, but you even voted to override the sensible veto of this bill.

In you law gun license information is kept in a database that is locked away from statistical studies. Surely we citizens should be able to study the effects of the law (injuries, deaths from licensed guns). Your legislation would create these NEW problems for the study of handgun safety. Your proposed law requires the Department of Justice to store the data in such a way that the data cannot be studied statistically. The effects of the law will simply be unknown. Why would the Supreme Court (or you) burden the people of Wisconsin with a blind experiment ?

No requirement that a gun be registered to qualify for concealed carry. The neighbors would generally feel more comfortable with licensing if they knew there was an incentive in the law to protect these guns from being stolen. “Lose your gun and you have to re-apply for a license to carry. “

I am attaching a link to a legal analysis of the actual Supreme Court decision and what it actually did say to the Legislature.

(Brady Foundation comment below)

QUESTION 2

Finally, if you support this kind of legislation in the future, will you commit to a listening session in Bay View so we can address the legislation in public with our personal and neighborly concerns?

Please help us with this campaign and write to each of the points.

best

Bill Sell


Senator Plale: [quoted in full]

In addition, I believe there must be an absolute sobriety requirement while carrying a weapon. I am not opposed to making information available to law enforcement professionals so that they have the most information available when entering a potentially dangerous situation. I do not believe however that it is appropriate or practical to consult neighbors of an applicant for a permit. I think both you and I can understand why the government seeking access to credible information from an applicants neighbors and acquaintances of an individual violates not only certain privacy guarantees, but common sense as well.

As for the way in which DOJ stores data on permits or registers weapons and permit holders, I have worked very closely with AG Lautenschlager on these issues. There are many details of the proposal that would be worked out in the administrative rules process. I pledged to the Attorney General that I would work with her to make the law reasonable to implement and give her and local law enforcement the resources necessary to enforce the restrictions.

Lastly, let me say again. I respectfully disagree with Brady Foundation Analysis of the Hamdan Decision. I have spoken with the Justices that wrote the opinion. While the inconsistency of the ban on concealed weapons and the State Constitution is most pronounced when it comes to the specific circumstances of a business owner in a high crime area, it is an inconsistency none the less. As you said , the Court did not reject a limitation on Concealed Carry – it rejected an outright ban, which is current law. I believe the legislation I have supported a reasonably limited right to carry a concealed weapon consistent with what the Court asked for. As for you comment that the Supreme Court did not endorse the legislation I voted for, I’m sure you know the court never endorses or opposes proposed legislation. It would be inappropriate and unethical for them to do so.

This issue will not go away. The legislature had an opportunity under the watchful eye of a Democratic Governor to craft restrictive reasonable legislation that would pre-empt State or Federal Courts or the Federal Government from cramming much less restrictive legislation down our throats. I worry given the political uncertainty of State and Federal government if that is an opportunity we will have in the legislature again.


Interview and Milwaukee Renaissance comments by Bill Sell.
We will add your comments to this discussion.
Please have your comments added here.
Write to: Milwaukee Renaissance Comments


Milwaukee Renaissance replies:

The incumbent pretends to be opposed to the very bill he works for. This is a clever man out to gut sane rules of gun possession.

He ‘worries’ about the other branches of government changing gun rules while pushing radical changes in gun rules onto the citizens of Wisconsin: “I worry given the political uncertainty of State and Federal government if that [writing concealed carry legislation] is an opportunity we will have in the legislature again.”

Senator Plale who has promoted legislation that will radically change gun law in Wisconsin. He claims to be worried what the Supreme Court or the Federal Government will do that very thing he is doing? How disingenuous is that?

A hothead neighbor can carry a gun around my neighborhood? And Plale is worried?

A picnicking family can be the target of a untracked gun in South Shore Park? And Plale is worried?

He wants a Summerfest, which is wall to wall crowds, drinking beer, and some carrying guns? And the incumbent is worried about the Supreme Court?

He worried about NOT getting concealed carry legislation while he works to gut the concealed carry law we already have. How could his work in the Senate be any more dishonest than that?

Indeed we do have someone to worry about.

How if he will just answer the questions, above in RED.

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 25, 2006

Legal Information |  Designed and built by Emergency Digital. | Hosted by Steadfast Networks