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Constitutional Defenses – Bear Arms – Fundamental Right, Under Wis. Const. Art. I, § 25 – Necessary Showing

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


¶86. In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.39 A defendant who challenges on constitutional grounds a prosecution for carrying a concealed weapon will be required to secure affirmative answers to the following legal questions before he or she is entitled to raise a constitutional defense. First, under the circumstances, did the defendant’s interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the State’s interest in enforcing the concealed weapons statute? The State generally has a significant interest in prohibiting the carrying of concealed weapons. Thus, to satisfy this element, the defendant must have been exercising the right to keep and bear arms under circumstances in which the need to do so was substantial. Second, did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? Put differently, did the defendant lack a reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms? The invocation of this possible defense must be raised by motion of the defendant before trial, and resolution of these legal questions must be made by the court prior to trial. Affirmative answers to these questions will require a court to conclude that the State’s enforcement of the CCW statute constituted an unreasonable and unconstitutional impairment of the right to keep and bear arms as granted in Article I, Section 25 of the Wisconsin Constitution.

¶87. The issue of unlawful purpose is relevant only when the court approves a constitutional defense. The State can overcome a court-approved constitutional defense only if it asserts, and then proves at trial, that the defendant had an unlawful purpose at the time he or she carried the concealed weapon. Whether the defendant had an unlawful purpose, defined as an intent to use the weapon in furtherance of the commission of a crime, is a question of fact. The question should be submitted to the trier of fact along with separate, traditional instructions on the crime of carrying a concealed weapon.

¶88. If a jury answers that the defendant did not intend the unlawful purpose specifically alleged by the State, then it will not need to reach the questions posed in the jury instructions for a CCW offense as the defendant’s conduct remains constitutionally protected. If any unlawful purpose is proven, then the defendant can be found guilty of carrying a concealed weapon upon proof beyond a reasonable doubt of the elements of the crime of carrying a concealed weapon. See Wis JI–Criminal 1335.

The procedure devised by the court for determining the viability of this constitutional right in any given case appears to be unique. The court, that is, bifurcates the determination, treating its core  as a legal matter for the judge; and leaving “unlawful purpose” a question of fact for jury resolution. Some embellishment is provided by Justice Bablitch, who says in a concurrence that this is the framework employed in 4th amendment cases: “So too here. The constitutional facts are determined by the court, applying the historical facts to the constitutional amendment, and ‘reasonableness’ is the touchstone.” ¶96. But this begs the question. A 4th amendment issue by definition raises an issue of preliminary admissibility which “shall be determined by the judge,” § 901.04. The present question directly relates to guilt – which is paradigmatically for the fact-finder – not admissibility, and Justice Bablitch’s analogy therefore seems inapt. The right to bear arms creates a defense to CCW. Why shouldn’t this be treated same as any other defensive issue: the judge screens the issue for evidentiary support but rather than independently weighing the evidence views it in the light most favorable to the defense, and keeps in mind that reasonableness is peculiarly for the fact-finder? The problem, it should be stressed, is not that the judge screens the issue, but that the judge makes an independent determination of its viability.

The court “conclude[d] 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,” ¶67; compare that conclusion to District of Columbia v. Heller, USSC No. 07-290, 6/28/08, which overturned a D.C. ban on possession of a usable, lawful gun in one’s home (holding in the process that: the 2nd amendment safeguards a personal, as opposed to collective, right to keep and bear arms; and that this right may be subjected to reasonable regulation, albeit not to the point of the D.C. effort to restrict it out of existence). Whether the 2nd amendment applies to states through the incorporation doctrine remains to be seen, and in any event the result in Heller doesn’t appear to be inconsistent with the result if not the reasoning of Hamdan. And see People v. Yarbrough, Cal App No. A120721, 12/17/08 (Heller doesn’t invalidate CCW statute).


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