Right to bear arms trumps concealed weapon statute.

Byline: David Ziemer

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 interpretation, 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...