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WI Concealed Carry Ban Unconstitutional


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http://www.wrn.com/2010/10/county-judge-rules-concealed-carry-ban-unconstitutional

 

We are falling behind!!!

 

Judge rules concealed carry ban unconstitutional

by WRN Contributor on October 14, 2010

 

in Crime & Courts

 

A Clark County judge says Wisconsin’s ban on carrying concealed weapons is unconstitutional. In the case, authorities charged a Sauk City man with carrying a concealed weapon, after he admitted he had a knife in his waistband. He never threatened anyone. In light of the landmark Supreme Court ruling in McDonald v. City of Chicago, attorney William Poss filed a motion to dismiss the case on constitutional grounds. Judge Jon Counsell obliged Wednesday, ruling the law is overly broad and violates both the Second and Fourteenth Amendments of the Constitution.

“The government has to have a compelling state interest to do so (restrict the right to carry) and they have to have the least restrictive means of doing that,” said Poss. “Public safety obviously is a state interest, but there’s all kinds of ways to do that in this regard.” In his decision, Counsell states the law forces citizens to “go unarmed (thus not able to act in self defense), violate the law or carry openly,” but notes displaying weapon’s openly isn’t a “realistic alternative.”

 

As of now, the decision only sets a precedent in Counsell’s court, but Poss expects the case will be appealed. “It’s ultimately going to get to either the Wisconsin Supreme Court and or the United States Supreme Court one way or another,” he predicted. The decision was disseminated around the state Wednesday, and Poss already had 50 congratulatory phone messages or e-mails from colleagues by Wednesday afternoon. “There’s a lot of interest in this obviously,” he said. “It’s not a left or right type of thing quite frankly. It’s a liberty thing.”

 

Clark County Assistant District Attorney Dick Lewis said he has 20 days to appeal the ruling, and no decision has been made. Wisconsin is one of only two states which completely ban carrying concealed weapons.

 

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It will be in everyone's best interest for this decision to be challenged - assuming it can be upheld in higher courts. If this can get upheld at the federal level, the power of the Daley/Madigan regime means very little.

 

So does the county judge's findings apply to the entire state (until/unless it was overturned by a higher court)?

 

If so, why can't we start local and challenge the constitutionality of carry bans in IL? I'd guess any non-Cook judge wouldn't hesitate to strike down the law.

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It will be in everyone's best interest for this decision to be challenged - assuming it can be upheld in higher courts. If this can get upheld at the federal level, the power of the Daley/Madigan regime means very little.

 

So does the county judge's findings apply to the entire state (until/unless it was overturned by a higher court)?

 

If so, why can't we start local and challenge the constitutionality of carry bans in IL?

 

 

If the ban is found unconstitutional by a federal court, then it will apply across the country. Why duplicate efforts? We have ISRA, SAF and NRA working on other court cases specific to Illinois/Chicago. When the WI case is won at the Federal level, perhaps at SCOTUS, then our ban will be much easier to overturn, and we will also have the benefit of the other cases we've worked on.

 

You must depend on a wide spread attack, one state/organization/group simply can't afford to challenge every law. Not enough time/money/manpower.

 

I'm sure that other challenges of other laws are forthcoming for Illinois. But the right time/venue/litigant must be found to be successful.

 

The tide is turning, we are making progress.

 

Vote for the candidate that WILL sign a RTC bill in IL on November 2nd. Or earlier if you're so inclined!!

 

AB

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Not to be persnickety, but we've BEEN behind.

 

What will probably happen is Illinois will pass a concealed carry law only moments before it is forced to.

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WI has been close to RTC twice but had the law vetoed by the Democrat governor.

 

Last I looked the Republican candidate for governor has a 9 point lead.

There might be a race to see which of the last two states enter the 21st Century

Might???

 

At motorcycle rodeos there's a game that's called the "Slow Race" where the object is to go as slow as you can - without putting your feet down. The winning rider crosses the finish line LAST.

 

That's what we've got here, Lou. Wiconsin and Illinois -two liberal states - are in a slow race to pass concealed carry.

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The WI Supreme court basically laid the groundwork for this decision in the Hamdan case. Their refusal to address the whole ccw ban in that decision left it inevitable that the question would return soon. Now Heller & McDonald can be applied in addition to the WI constitution and much of of the arguments for striking the CCW ban is contained in the Hamdan opinion.

:lol:

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Here's a link to the Judge Counsell's extremely well reasoned order

 

http://www.wisconsin...10/Schultz1.pdf

 

...

Heller and McDonald, recognize the fundamental and personal right written, in plain

English, in the Second Amendment. These two decisions reinforce the need for the

sec. 941.23 to be narrowly tailored and, in addition, the least restrictive means of the

State achieving its goal. The statute is neither. As written, sec. 941.23:

1. Prohibits a gun or knife owner from storing his weapons out of plain sight,

such as in a gun cabinet, closet or drawer in his own home.

2. Prohibits a store owner from storing his weapons out of plain sight at his place

of business, a store in a "rough" neighborhood.3

3. Prohibits the logger, hiker, cross country skier and other outdoors person from

keeping his weapon out of plain sight, but available, in the event of a wolf,

bear or other wild animal attack.4

4. It prohibits judges, prosecutors, defense attorneys, court staff and child

support agency workers (and many others) that have received legitimate death

threats from carrying a concealed weapon for personal safety.

The court could continue this list ad infinitum. The point of the list is that it shows the

over breadth and over reach of sec. 941.23. The statute applies a leaden blanket to

when silk would suffice.

 

...

 

 

(typos are in the original)

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...

Heller and McDonald, recognize the fundamental and personal right written, in plain

English, in the Second Amendment. These two decisions reinforce the need for the

sec. 941.23 to be narrowly tailored and, in addition, the least restrictive means of the

State achieving its goal. The statute is neither. As written, sec. 941.23:

1. Prohibits a gun or knife owner from storing his weapons out of plain sight,

such as in a gun cabinet, closet or drawer in his own home.

2. Prohibits a store owner from storing his weapons out of plain sight at his place

of business, a store in a "rough" neighborhood.3

3. Prohibits the logger, hiker, cross country skier and other outdoors person from

keeping his weapon out of plain sight, but available, in the event of a wolf,

bear or other wild animal attack.4

4. It prohibits judges, prosecutors, defense attorneys, court staff and child

support agency workers (and many others) that have received legitimate death

threats from carrying a concealed weapon for personal safety.

The court could continue this list ad infinitum. The point of the list is that it shows the

over breadth and over reach of sec. 941.23. The statute applies a leaden blanket to

when silk would suffice.

 

...

Wow. There is a judge who needs to keep getting re-elected. Sounds like a great guy, and he even reads the consitution, which seems rare here in Chicagoland... I never expected such a plainly-worded pro-freedom court order in Wisconsin.

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It's sad when the best thinkers are little county judges, rather than federal judges.

 

The poor crop of federal judges are the result of an electorate worrying primarily how many entitlements and benefits they will get from an election. That's the reason you end up with liberal thinking judges. The last election is a glaring example. A large portion of Obama's base was just in it for the bennies. Free this, free that, gimmee, gimmee, gimmee!!

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It's sad when the best thinkers are little county judges, rather than federal judges.

 

The poor crop of federal judges are the result of an electorate worrying primarily how many entitlements and benefits they will get from an election. That's the reason you end up with liberal thinking judges. The last election is a glaring example. A large portion of Obama's base was just in it for the bennies. Free this, free that, gimmee, gimmee, gimmee!!

 

 

Also known as "The Chicago Way".

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Received this in an email:

 

Sometimes life is funny. I doubt average people get out of bed in the morning thinking to them self, “today I think I’ll change the world”.

 

Average people however, do change the world.

 

The open carry effort in Wisconsin began in March of 2007 in a hotel meeting room in Sheboygan. Dick Baker who is an average guy had led the Wisconsin Concealed Carry Association for many years and he was disappointed Jim Doyle had been reelected. Dick was thinking it would be another four years before we had a chance to pass a concealed carry law. Dick did not recognize just how valuable Jim Doyle’s veto’s of two conceal carry bills were to changing Wisconsin and guaranteeing our carry rights.

 

We also had Wis. Stat 941.23 (the states open carry law), the Wisconsin Constitution Article 1, Section 25 (which protected the law per the Hamdan decision), and J B VanHollen as the new Attorney General.

 

Oh yes, we also had selective members of the law enforcement community with their elitist arrogance and contempt for and harassment of, law abiding citizens who wished to exercise their right to be safe.

 

Thousands of Wisconsin citizens have been trained since 2004 how to responsible carry and use lethal force. This knowledge had become extinct because the ability to carry had been destroyed by the elitist law enforcers and politicians.

 

These things taken as a whole were all we needed to start the wheels in motion in the right direction. The legislature could just sit this one out.

 

As people began to once again learn how to carry, the law enforcers responded as expected with disorderly conduct charges. Brad Krause was the first person to be arrested for disorderly conduct while armed and was tried by West Allis for being lawfully armed. The court however did not agree with these charges and Krause was found not guilty. The open carry Jennie was finally out of the bottle.

 

After much encouragement, the Attorney General finally came out and issued a memo to instruct law enforcers that open carry was indeed lawful and not itself disorderly conduct.

 

Thank God for the Madison police. Apparently unbeknownst to them, another concealed carry case (Wisconsin v. Joshua D. Schultz) as working it’s way through the court system in Clark county which challenged Wis. Stat. 941.23 as unconstitutional. When the Madison police retrospectively issued disorderly conduct charges against what has become known as “The Madison Five” for patronizing Culvers while lawfully armed, they really proved Schultz’s case for him. Police powers were being used for the mildest of reasons (someone was “disturbed” by just the sight of a gun) to destroy a persons constitutionally protected right. Today, Wis. Stat. 941.23 was ruled unconstitutional.

 

Wisconsin has taken a giant step to return to 1871, the year before Wis. Stat. 941.23 was enacted and when citizens could carry a weapon any way they wished. For now this decision applies only to Clark county but it is expected to be appealed to the Wisconsin Supreme court. If upheld this case will make all of Wisconsin a Constitutional carry state. Lawful citizens may then carry weapons either openly or concealed, subject to a few other restrictions.

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Wisconsin has taken a giant step to return to 1871, the year before Wis. Stat. 941.23 was enacted and when citizens could carry a weapon any way they wished. For now this decision applies only to Clark county but it is expected to be appealed to the Wisconsin Supreme court. If upheld this case will make all of Wisconsin a Constitutional carry state. Lawful citizens may then carry weapons either openly or concealed, subject to a few other restrictions.

 

Molly, Molly, Molly....Talk about throwing gas on the fire!!

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Molly, Molly, Molly....Talk about throwing gas on the fire!!

LOL - I didn't write it - just received in an email and helping the little flames of freedom along!

 

eta: See my sig below!

 

Yes and it's just the kind of piece to inflame the "judicial remedy" advocates here.

 

(You mean the signature identical to mine?)

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Yes and it's just the kind of piece to inflame the "judicial remedy" advocates here.

 

(You mean the signature identical to mine?)

Yeah, that signature!!

 

I support judicial remedy - I fully supported the Heller,McDonald, Higgins, and other cases.

But I don't think we should put all our eggs in that one basket. I can't do anything on the judicial

front but I sure as heck can do my utmost on the legislative and electoral fronts.

 

And, this is a big AND, Wisconsin has a leg to stand on in this issue - we in Illinois with our "subject to police powers" have a much tougher battle.

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Received this in an email:

 

Sometimes life is funny. I doubt average people get out of bed in the morning thinking to them self, “today I think I’ll change the world”.

 

Average people however, do change the world.

 

The open carry effort in Wisconsin began in March of 2007 in a hotel meeting room in Sheboygan. Dick Baker who is an average guy had led the Wisconsin Concealed Carry Association for many years and he was disappointed Jim Doyle had been reelected. Dick was thinking it would be another four years before we had a chance to pass a concealed carry law. Dick did not recognize just how valuable Jim Doyle’s veto’s of two conceal carry bills were to changing Wisconsin and guaranteeing our carry rights.

 

We also had Wis. Stat 941.23 (the states open carry law), the Wisconsin Constitution Article 1, Section 25 (which protected the law per the Hamdan decision), and J B VanHollen as the new Attorney General.

 

Oh yes, we also had selective members of the law enforcement community with their elitist arrogance and contempt for and harassment of, law abiding citizens who wished to exercise their right to be safe.

 

Thousands of Wisconsin citizens have been trained since 2004 how to responsible carry and use lethal force. This knowledge had become extinct because the ability to carry had been destroyed by the elitist law enforcers and politicians.

 

These things taken as a whole were all we needed to start the wheels in motion in the right direction. The legislature could just sit this one out.

 

As people began to once again learn how to carry, the law enforcers responded as expected with disorderly conduct charges. Brad Krause was the first person to be arrested for disorderly conduct while armed and was tried by West Allis for being lawfully armed. The court however did not agree with these charges and Krause was found not guilty. The open carry Jennie was finally out of the bottle.

 

After much encouragement, the Attorney General finally came out and issued a memo to instruct law enforcers that open carry was indeed lawful and not itself disorderly conduct.

 

Thank God for the Madison police. Apparently unbeknownst to them, another concealed carry case (Wisconsin v. Joshua D. Schultz) as working it’s way through the court system in Clark county which challenged Wis. Stat. 941.23 as unconstitutional. When the Madison police retrospectively issued disorderly conduct charges against what has become known as “The Madison Five” for patronizing Culvers while lawfully armed, they really proved Schultz’s case for him. Police powers were being used for the mildest of reasons (someone was “disturbed” by just the sight of a gun) to destroy a persons constitutionally protected right. Today, Wis. Stat. 941.23 was ruled unconstitutional.

 

Wisconsin has taken a giant step to return to 1871, the year before Wis. Stat. 941.23 was enacted and when citizens could carry a weapon any way they wished. For now this decision applies only to Clark county but it is expected to be appealed to the Wisconsin Supreme court. If upheld this case will make all of Wisconsin a Constitutional carry state. Lawful citizens may then carry weapons either openly or concealed, subject to a few other restrictions.

 

 

Oh, yeah! Baby!

 

I'm not going to open a bottle of champagne yet.

 

But, if it does go down like this, then Wisconsin will join Alaska, Arizona and Vermont as "free" states!

 

Oh, yes!

 

Well, until their legislature passes a new bill, that is.

 

John

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Yes and it's just the kind of piece to inflame the "judicial remedy" advocates here.

 

(You mean the signature identical to mine?)

Yeah, that signature!!

 

I support judicial remedy - I fully supported the Heller,McDonald, Higgins, and other cases.

But I don't think we should put all our eggs in that one basket. I can't do anything on the judicial

front but I sure as heck can do my utmost on the legislative and electoral fronts.

 

And, this is a big AND, Wisconsin has a leg to stand on in this issue - we in Illinois with our "subject to police powers" have a much tougher battle.

That's because Madison, WI hasn't got the.....let's say.....the slimy underbelly that Chicago has. Nor the tentacles that hold the rest of the state in a death grip.

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The WI Supreme court basically laid the groundwork for this decision in the Hamdan case. Their refusal to address the whole ccw ban in that decision left it inevitable that the question would return soon. Now Heller & McDonald can be applied in addition to the WI constitution and much of of the arguments for striking the CCW ban is contained in the Hamdan opinion.

:thumbsup:

In the Hamden case the WI-SC basically told the legislature "Fix it or next time, we'll have to". The legislature didn't. Doyle vetoed it twice, and twisted enough arms the second time that they failed to override his veto by TWO votes that had previously voted to pass it.

 

So now it's back in the courts and the WI SC might end up writing their LTC Law, and with MacDonald as their guide, they might end up with VT/AZ/AK type carry....

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Molly, Molly, Molly....Talk about throwing gas on the fire!!

LOL - I didn't write it - just received in an email and helping the little flames of freedom along!

 

eta: See my sig below!

 

Yes and it's just the kind of piece to inflame the "judicial remedy" advocates here.

 

(You mean the signature identical to mine?)

 

Wisconsin is not where they are by only judicial means. They have also used advocacy and activism. Wisconsin has open carry and has exploited it to further their position. Illinois has fanny pack transport...

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One member here was mounting a one-man letter writing campaign to press AG Lisa Madigan to issue a position on what kind of carry is legal in Illinois post-Heller/McDonald decisions. Last I heard, her office was adamant that legal carry of ANY kind was unlawful in Illinois.
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One member here was mounting a one-man letter writing campaign to press AG Lisa Madigan to issue a position on what kind of carry is legal in Illinois post-Heller/McDonald decisions. Last I heard, her office was adamant that legal carry of ANY kind was unlawful in Illinois.

 

The effective carry of a firearm (openly or concealed) remains illegal in Illinois; transportation of an unloaded firearm which is fully enclosed in a case remains legal. To be clear, one would not need to actually have anything inside of a case to be an activist and garner media attention to the matter. Squeaky wheels get the grease. If RTC can be ignored by Cullerton and Madigan, it will be.

 

The election is now two weeks away. I will gladly take Brady in the mansion and a pro carry majority in the ILGA. If not, and we are relegated once again to shouting on the sidelines, I'd like to make sure we are heard loud and clear. Whether it is a lawsuit against the unconstitutional ban on the bearing of arms for self defense or activism in the street, the pressure needs to kept at a constant.

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