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CCW, § 941.23 (Pre-Act 35 Amendment) – Facially Constitutional

State v. Brian K. Little, 2011AP1740-CR, District 4, 1/26/12

court of appeals decision (1-judge, not for publication); for Little: Lane Fitzgerald; case activity

The court rejects  challenges to § 941.23, carrying concealed weapon, as facially violating the state and federal constitutional right to bear arms. (The statute presently allows concealed carry under specified circumstances, 2011 WI Act 35. Little was convicted under the prior version, which admitted of no exceptions for non-peace officers, ¶3 n.3.)

The court holds (¶¶5-6) that the state-constitutional argument is controlled adversely by State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785. While indicating that subsequent Supreme Court authority – District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) – requires some new form of analysis, the court rejects the idea that this includes either applying “strict scrutiny to a law like Wisconsin’s Wis. Stat. § 941.23,” ¶9, or reaching a different result:

¶10      Although strict scrutiny does not apply, I agree with the parts of Little’s argument indicating that Heller and McDonald apply a higher level of scrutiny than our supreme court applied in Cole and Hamdan.  Still, there is no reason to suppose that the application of that higher standard to Wis. Stat. § 941.23 would produce a different result.  As the State points out, the Heller majority singled out prohibitions on carrying a concealed weapon and four other prohibitions as examples of longstanding and proper prohibitions. …

¶11      … Accordingly, I conclude there is little doubt that the Heller majority, and dissenters for that matter, consider general prohibitions on the carrying of concealed weapons permissible.  If our supreme court looked to Heller for guidance, it would reach the same conclusion.

¶12      Little might complain that I do not actually apply the type of heightened scrutiny to Wis. Stat. § 941.23 that the Heller Court applied to the District of Columbia handgun ban.  But I see no reason to do so when the United States Supreme Court has already told me the result of that analysis.

The court declines to reach other attacks: Little’s overbreadth argument is fatally compromised by failure to “address whether there is a possible limiting construction that avoids unconstitutional applications,” ¶15; and his unconstitutional-as-applied argument is defeated by the guilty plea waiver rule, ¶18. (For an instance of a successful challenge on the latter basis, see State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11.)

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