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§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25

State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski


¶46. Under its broad police power, Wisconsin may regulate firearms. It may regulate the time, place, and manner in which firearms are possessed and used. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. See State v. Perez, 2001 WI 79, 244 Wis. 2d 582, 628 N.W.2d 820. It is constitutional. We hold that only if the public benefit in this exercise of the police power is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied….¶53. We turn now to the public benefits underlying the CCW statute and how they apply in the circumstances of this case….

¶54. … In short, carrying a concealed weapon permits a person to act violently on impulse, whether from anger or fear, and that is a prospect the law may discourage.

¶55. Another rationale for prohibiting concealed weapons is to put people on notice when they are dealing with an individual who is carrying a dangerous weapon. Notice of the presence of a dangerous weapon permits people, including law enforcement officers, to act accordingly….

¶56. One additional rationale … is to stigmatize socially malfeasant behavior.

¶57. None of these rationales is particularly compelling when applied to a person owning and operating a small store….

¶64. The importance of being able to exercise the right to bear arms in the setting of one’s own property is implied by the language of Article I, Section 25. The amendment enumerates several lawful purposes for which one can exercise the right to bear arms.29 Although Hamdan’s conduct could arguably be construed as undertaken for the purpose of “defense,” we think the circumstances logically point to the purpose of “security.” …

¶66. 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….

¶67. Based on the foregoing considerations, we conclude that a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex when undertaken to secure one’s home or privately owned business.31

¶68. 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.

¶69. In addition to weighing the public interest in enforcing the CCW statute against an individual’s interest in exercising the right to keep and bear arms by carrying a concealed weapon, a court must assess whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute….

¶76. There is a final element to a constitutional challenge of an application of the CCW statute. Article I, Section 25 expressly limits the right to keep and bear arms to “lawful purposes.” Therefore, a defendant is not entitled to assert a constitutional defense to a CCW charge if he or she carried a concealed weapon for an unlawful purpose.35 Carrying a concealed weapon for an unlawful purpose, even if a defendant were able to satisfy the two other tests for an unreasonable restriction, is not protected by the amendment.

It seems clear that the court means to limit application of the right to instances of carrying on private property. And even then, the public interest must be “substantially outweighed” by the defendant’s interest [“security” in this particular instance, but in theory, “defense” or “other lawful purpose”]. Whether being on your own property is enough, in and of itself, is open to question. Hamdan meets the test, because his store was in a high crime area, and had itself been the site of past violence. The police knew as much when they paid a surprise visit at closing time. And, Hamdan concealed the gun in an area accessible only to him, not the public. ¶¶82-83. As the court suggests, ¶52, the constitutional provision causes a conflict because these facts comprise “the outer reaches of the CCW statute.” The facts, then, have to be pretty extreme before prosecution becomes constitutionally impaired.

UPDATE: A somewhat rosier view is taken by one of foremost commentators on the second amendment and state constitutional right to bear arms, David B. Kopel, “The Licensing of Concealed Handguns,” Albany Law Rev:

The constitutional right to carry firearms is not as well-protected in Wisconsin as it is in most other states. But the right does exist, and judicial enforcement of that right has removed a very large number of people from the ambit of Wisconsin’s law against concealed handguns.


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