Right to bear arms trumps CCW statute

Listen to this article

“Anyone who enters a business premises, including a person with criminal intent, should presume that the owner possesses a weapon, even if the weapon is not visible.” Hon. David T. Prosser Wisconsin Supreme Court

The carrying a concealed weapon (CCW) statute is not facially unconstitutional, but must yield to the constitutional right to bear arms in some instances, the Wisconsin Supreme Court held in two cases it decided on July 15.

State v. Cole

In the first case, Phillip Cole was pulled over by Milwaukee police officers. As the officer approached, he saw Cole conceal an item in the glove compartment. Police then searched Cole and the vehicle, finding marijuana in Cole’s pocket, a loaded gun in the glove compartment, and another loaded gun beneath the driver’s seat.

Cole stated that he carried the gun in the glove compartment for protection. Cole pleaded guilty to CCW and possession of marijuana. Four and a half months later, he moved to vacate the CCW conviction, claiming it is an unconstitutional infringement of his constitutional right to bear arms under the Wisconsin Constitution.

Milwaukee County Circuit Court Judge Charles F. Kahn denied the motion, and Cole appealed. The case was certified to the Wisconsin Supreme Court, which affirmed in a decision by Justice Jon P. Wilcox.

State v. Hamdan

Munir A. Hamdan owns and operates a grocery store in a high crime neighborhood in Milwaukee that has previously been robbed. He keeps a gun near the cash register for protection. As he was closing the store, he wrapped the gun in a plastic bag, preparing to put it into storage.

Police officers arrived to check for licenses, and asked Hamdan if he kept a gun in the store. Hamdan replied that he did and gave the gun to the officers. Hamdan was subsequently charged with CCW and after unsuccessfully raising a constitutional defense with Milwaukee County Circuit Court Judge Robert C. Crawford, was convicted by a jury. Hamdan appealed, and, after certification, the Supreme Court reversed in a decision by Justice David T. Prosser.

The Provisions

Article I, Section 25 of the Wisconsin Constitution was adopted in 1998, and provides, “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”

Section 941.23 provides, “any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.”

Facial Validity

The court held that, while the statute must yield to the constitutional provision in some cases, it is not facially unconstitutional.

In Cole, the court rejected the defendant’s argument that, because the statute predates the constitutional amendment, it is not entitled to the presumption of constitutionality given legislative acts. In addition, although the court concluded that the right to bear arms is a fundamental right, it held that neither strict scrutiny nor intermediate scrutiny need be applied in determining the statute’s constitutionality; instead the court held the reasonableness standard was appropriate.

Setting forth that the test is not the same as the rational basis test, the court quoted a law review article as follows: “When a state has a right to bear arms amendment, the test generally changes from ‘Is it a “reasonable” means of promoting the public welfare?’ to ‘Is it a “reasonable” limitation on the right to bear arms?’” Jeffrey Monks, Comment, The End of Gun Control, 2001 Wis. L. Rev. 249, 275, n.147.

Applying that test, the court rejected Cole’s facial challenge to the CCW statute.

The court acknowledged that some states’ right to bear arms amendments explicitly permit laws against CCW, but stated it was not persuaded that the absence of such language in Wisconsin’s amendment prevent such restrictions. The court noted that many other states without such explicit provisions have interpreted their amendments to allow CCW laws.

The court further found that the legislative history supports such an interpreta
tion, noting that the legislative materials specifically cite a number of cases with approval that upheld “reasonable” restrictions on the right to bear arms.

In addition, although attempts to amend sec. 941.23 have been made, such proposals have not succeeded. From this, the court inferred, “The attempts, though, suggest that the legislature believes the concealed weapons law is still intact. Finally, the court noted contemporaneous statewide polls indicating that almost 80 percent of Wisconsinites oppose legalizing carrying concealed weapons.

Waiver

Having rejected Cole’s facial challenge to the statute, the court then held that Cole waived the opportunity to challenge the constitutionality of the statute as applied to him. Unlike a facial constitutional challenge, which is a matter of subject matter jurisdiction and cannot be waived, an “as applied” challenge is non-jurisdictional and can.

Accordingly, the court held that, by pleading guilty without raising any constitutional challenge until his motion for postconviction relief, Cole waived the argument.

Concurrences

The decision produced three concurring opinions. Chief Justice Shirley S. Abrahamson wrote separately for two reasons: to disagree that a statute predating a constitutional amendment should be presumed constitutional; and to disagree that there is any difference between the rational basis test, and the majority opinion’s reasonableness test.

Justice N. Patrick Crooks wrote separately to assert that Cole waived both the facial and “as applied” challenges to his conviction.

Justice Prosser wrote a concurring opinion, joined by Justice Ann Walsh Bradley, emphasizing the legislative history and that the amendment refers to “the people” rather than “every individual.” Prosser wrote, “By shifting the right from ‘Every individual’ to ‘The people,’ the amendment underlined the fact that the police power in Wisconsin may reasonably restrict specific individuals and classifications of people (e.g., domestic abusers, minors) in ways that it may not restrict the people as a whole.”

Prosser added, “The constitutional right to keep and bear arms in Wisconsin is an important right and a valuable right, and it must be protected. But it is not a fundamental right in the same sense that freedom of speech, freedom of worship, the right to remain silent, and the right to jury trial are fundamental rights. The right is subject of reasonable regulation under the police power. Recognizing the limits to this important right up front will avoid a deluge of frivolous litigation.”

Hamdan

In Hamdan’s case, however, the court held that the CCW statute was unconstitutional, as applied to him.

First, however, it rejected his argument that, because he never left his own store, he did not “go armed,” within the meaning of the CCW statute. Instead, the court approved the court of appeals’ decision in State v. Keith, 175 Wis.2d 75, 498 N.W.2d 865 (Ct.App.1993), in which the court affirmed the conviction for CCW of a woman standing on her own front porch.

The court also rejected Hamdan’s argument that his conduct was privileged under secs. 939.45(1), (2), and (6). The court concluded, “Under the facts of this case and in the context of the CCW statute, we do not believe that modifying the principles underlying the law of privilege, as codified in Wis. Stat. sec. 939.45 and interpreted in prior decisions of this court, is the appropriate method of effectuating the rights guaranteed under Wisconsin’s right to keep and bear arms amendment.”

The court concluded, however, that, in some instances, the CCW statute, and the State’s police powers, must give way to the right to bear arms. Quoting, and adopting t
he reasoning of, the Wyoming Supreme Court, the court held, “[A] balance must be struck between the individual’s right to exercise each constitutional guarantee and society’s right to enact laws which will ensure some semblance of order. As these interests will necessarily conflict, the question then becomes which party should accept the encroachment of its right. … (quoting State v. McAdams, 714 P.2d 1236, 1237-1238 (Wyo. 1986).”

Other Jurisdictions

The court also concluded that, to permit Hamdan’s conviction to stand would make Wisconsin law an anomaly. Wisconsin is one of only six states that disallow any ordinary citizens to lawfully carry a concealed weapon. However, four of those states have exceptions that would likely have covered Hamdan’s conduct.

The court found, “As a result of our legislature’s decision to prohibit the carrying of concealed weapons under any circumstance, the interaction between Wisconsin’s CCW statute and the state constitution’s right to bear arms is anomalous, if not unique. It appears that no other state, except perhaps Kansas, completely bans the carrying of concealed weapons by all citizens in all circumstances while simultaneously recognizing the right of individuals to own, possess, and carry firearms for lawful purposes.”

Statutory Purpose

The court also concluded that permitting Hamdan’s conviction to stand would not further the purposes of the CCW statute — preventing violence from people using weapons in sudden anger when they would not have done so in their sober moments, and putting other people on notice when they are dealing with an individual who is carrying a dangerous weapon.

Finding those purposes inapplicable to Hamdan, the court concluded, “None of these rationales is particularly compelling when applied to a person owning and operating a small store. Although a shopkeeper is not immune from acting on impulse, he or she is less likely to do so in a familiar setting in which the safety and satisfaction of customers is paramount and the liability for mistake is nearly certain. There is less need in these circumstances for innocent customers or visitors to be notified that the owner of a business possesses a weapon. Anyone who enters a business premises, including a person with criminal intent, should presume that the owner possesses a weapon, even if the weapon is not visible. A shopkeeper is not likely to use a concealed weapon to facilitate his own crime of violence in his own store. The stigma of the law is inapplicable when the public expects a shopkeeper to possess a weapon for security.”

Security

The court then went into a discussion of the meaning of “security,” distinguishing it from “defense.” The court explained, “The common understanding of ‘security’ does not implicate an imminent threat. Rather, it connotes a persistent state of peace. 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.”

The Holding

From this, the court concluded, “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 added, however, “a court must assess whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute.”

The court rejected the State’s argument that one bearing arms can comply with the law by keeping the gun out in the open or in a holster, concluding, “requiring the gun owner to leave a handgun in plain view in his or her store so that he or she avoids a CCW charge fails the litmus test of common sense.” The court found it would frighten customers, alert criminals, and make the firearm more dangerous because it would be more accessible to children and assailants.

Finally, the court held that a person carrying a concealed weapon must do so for a “lawful purpose.” To overcome a constitutional defense approved by the court, the burden is on the State to show that a defendant had a “specific criminal purpose” and that the defendant carried the concealed weapon for that unlawful purposes.

Application

Applying the standard to Hamdan, the court held that it was an unreasonable impairment of Hamdan’s right to bear arms to punish him for carrying a concealed weapon.

	Links Wisconsin Supreme Court Related Article Case Analysis

Reviewing the high crime rate in Hamdan’s neighborhood, and the prior robberies and homicides in his store, the court found Hamdan had a right to keep arms for security. In addition, the court found that he had no reasonable means of keeping the gun except to conceal it, for the “common sense” reasons stated above.

Accordingly, the court reversed and remanded the case, with instructions to dismiss the prosecution unless the State can show probable cause that Hamdan had an unlawful purpose when he was carrying the weapon.

Other Opinions

The decision produced four separate opinions. Chief Justice Shirley S. Abrahamson dissented, concluding that there is no exception for persons in private residences and privately operated businesses to the CCW law, and that a weapon must still be openly displayed.

Justice William A. Bablitch wrote a concurring opinion, solely to take exception to the dissent, elaborating on the “absurdities” of requiring weapons to always be openly displayed in residences and businesses, and stating that the dissent would “render[] the constitutional amendment a sham by reading into it the words ‘unless concealed.’”

Justice Ann Walsh Bradley wrote a concurring opinion, declining to join the procedural means established for weighing the right to bear arms against the State’s police powers.

Finally, Justice N. Patrick Crooks wrote a concurring opinion, taking the position that the entire CCW statute is unconstitutional.

Click here for Case Analysis.

David Ziemer can be reached by email.