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§ 941.23, Carrying concealed weapon – Facial Constitutionality, 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 facially unconstitutional as impermissibly infringing on the right to bear arms.

Holding: The constitutional right of an individual to bear arms, Wis. Const. Art. I, § 25, being “fundamental” in nature, ¶20, the question is whether § 941.23 “reasonably” restricts that right, which in turn requires balancing the interests involved. ¶34.

¶43. This court has not been forced to look far to find support for its conclusion that Wis. Stat. § 941.23 is facially valid. As our foregoing discussion makes clear, other states have shown a great willingness to uphold “reasonable” restrictions upon the constitutional right to bear arms. We believe the reason is the compelling state interest in protecting the public from the hazards involved with certain types of weapons, such as guns. … (T)here is a balance of interests that must be done, and in this situation, the public safety interests win out. …

Public safety is put at risk, the court says, because of the danger an angered person would likely use a gun “which in their sober moments they would not have done, and which could not have been done had the weapon been upon their person.” ¶43, quoting a 1953 Kentucky case. Another policy reason suggested by the court is that concealing the weapon means the public has no notice that it should avoid someone capable of deadly harm, ¶43.

A bit of vote-counting; three separate concurrences embody 4 votes. But there is nonetheless majority support for both the fundamental nature of the right to bear arms and that the right is outweighed both in the abstract and as applied to the facts of the case. Justice Crooks would settle the issue by applying a waiver bar, but he nonetheless asserts that the CCW statute is indeed unconstitutional, ¶¶55-59; there’s your fourth vote right there, for the fundamental nature of the right. Justice Prosser’s concurrence is joined entirely by Justice Bradley and in large part by Chief Justice Abrahamson; he believes the right not only is something less than fundamental but is collective rather than individual. (However, these three votes represent the minority view on that particular issue.)

UPDATE: The Ohio supreme court subsequently held that state’s CCW statute didn’t infringe the right to bear arms under the Ohio Constitution (which grants “the right to bear arms for … defense and security”), Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779:

{¶15} The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an orderly and safe society. We conclude that that goal and the means used to attain it are reasonable. We hold that R.C. 2923.12 does not unconstitutionally infringe the right to bear arms; there is no constitutional right to bear concealed weapons.

Note, however, that the Ohio statute allows affirmative defenses for various “defensive” and “lawful” purposes, and is in that real sense narrower than the Wisconsin scheme, even as embellished by the Wisconsin supreme court.

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