CCW Case Analysis

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There is little doubt that, as Justice Prosser was sharp to recognize in his concurrence in Cole, these cases are going to generate a “deluge of frivolous litigation.”

A large number will be from prisoners who failed to raise “as applied” challenges, and these cases will easily be disposed of on waiver grounds, just as Cole’s was.

And a large number of career criminals who tote guns for unlawful purposes will seek protection in the Hamdan case, as well.

However, there will also be many nonfrivolous challenges worth examining. While not every defendant will present as sympathetic a picture as Hamdan, a good case can be made for plenty of other exceptions besides persons in their own residences and own private businesses.

One obvious candidate is employees. Logically, any employee of Hamdan, working in the same store, under the same dangerous conditions, should have the same right to carry a concealed weapon.

The court’s focus on “security” certainly suggests such a right. However, the State also has a stronger argument against extending the right to bear a concealed weapon to a new, inexperienced, and possibly hair-triggered, employee than it does to its respected owner, for whom “liability for mistake” and “the safety and satisfaction of customers” are “paramount” concerns.

Another obvious candidate is people in automobiles. A person such as Hamdan faces as much danger transporting the day’s receipts from the store to his vehicle to take to the bank as he does in the store itself. From a “security” standpoint, carrying the weapon to and from the car, and in the car with him, may be just as necessary as keeping it in the store.

Furthermore, after one’s home and business, a vehicle qualifies as the next most valuable place in which most people have a “possessory interest.” The court explicitly stated in Hamdan, “We believe the domain most closely associated with a persistent state of peace is one’s home or residence, followed by other places in which a person has a possessory interest (emphasis added).”

Cole sheds some light on this question. In dicta, (and it certainly is dicta, inasmuch as the court held Cole’s “as applied” challenge to be waived), the court suggested there is no such right, citing with approval a West Virginia case upholding a restriction on the transport of loaded weapons as a reasonable regulation of the manner in which weapons could be transported.

This would not bar such a claim, however. The court held Wisconsin’s restriction on carrying a concealed weapon itself to be a reasonable regulation — just not as applied to Hamdan on these facts.

Also, the court made the following statements: “Whatever the outer reaches of application of the CCW statute might be in light of the new constitutional amendment, this fact scenario does not fall within them”; and “However interesting the debate about the right to self-defense by possession of a weapon in a vehicle may be, such concerns are not implicated by the facts of this case.”

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The court thus does not foreclose a constitutional right to transport loaded and concealed weapons in a vehicle. The court’s statement in Cole could be limited to meaning only that it has no intention of extending the right to someone carrying two concealed handguns and controlled substances, as well.

The presence of controlled substances is likely to be another issue courts will grapple with frequently.

Any defendant asserting the constitutional right who also had controlled substances in his possession should expect an argument from the State that the gun was possessed not for “lawful purposes,” but for the unlawful purpose of facilitating the possession and/or sale of the drugs.

In the absence of any other guidance, the logical starting point for determining the State’s burden in such a case is State v. Peete, 185 Wis.2d 4, 517 NW.2d 149 (1994), in which the court held that, in order to add a penalty enhancer for committing a crime while armed, the state must prove a nexus between the crime and the possession of the weapon.

The biggest question of all, however, is whether a law-abiding citizen carrying a concealed weapon as he walks down the sidewalk will be able to successfully avoid prosecution for CCW.

Such a scenario really presents the ultimate collision of the competing interests involved — for most people, it is then that they are most vulnerable, and their need for security greatest, yet it is also when the State’s interests in preserving order are the highest.

– David Ziemer

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David Ziemer can be reached by email.