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§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, in Light of Wis. Const. Art. I, § 25

State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate 

Issue: Whether § 941.23 is unconstitutional as applied to Cole.

Holding:

¶48. Cole claims that he was carrying the weapons because he had been “the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood.” (Pet’r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat. We do not dispute the legitimacy of Cole’s reason for carrying the weapon. 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. In State v. Nollie, 2002 WI 4, 249 Wis. 2d 538, 638 N.W.2d 280, a case arising after the passage of the right to bear arms amendment, this court confirmed that a person may claim self-defense when charged under the CCW statute. Id., ¶¶18-19, 24, 26. However, in that case, we found that the unsubstantiated threat of four young men nearby, being loud and profane in a “high crime” area, was not “imminent and specific enough” for the defendant to invoke self-defense. Id., ¶¶23-25. The same problem arises in this case. Cole has presented no evidence of any threat at or near the time he was arrested.

¶49. In the case at hand, police seized two loaded weapons from the interior of a vehicle, one inside the glove compartment and the other stashed under the front seat of the vehicle. Both clearly were, by any definition, concealed. In Dundon, 226 Wis. 2d at 662, this court defined “concealed” as “hidden from ordinary observation,” and noted that a weapon need not be completely hidden from view to be considered concealed. 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. The right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle. The reasons supporting “facial” validity of the statute apply with equal force to the specific facts of this case. Public safety concerns support reasonable restrictions. In West Virginia Division of Natural Resources v. Cline, 488 S.E.2d 376, 382-83 (W. Va. 1997), the Supreme Court of Appeals of West Virginia upheld a restriction on the transport of loaded weapons as a reasonable regulation of the manner in which weapons could be transported. There the court noted particularly the possibility of accidents. Id. Such dangers certainly support restrictions on loaded weapons. Cole had two loaded weapons within reach and completely hidden from the view of others. Under these specific circumstances, the CCW statute may be enforced without impeding the constitutional right to bear arms.

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