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CCW – Constitutionality – Second Amendment

State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10

Clark County circuit court decision; for Schultz: William Poss, SPD Trial, Black River Falls

The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats. Defendant challenges the statute as unconstitutional “on its face, and because the statute is overbroad, abridges his privileges or immunities as a United States citizen, and violates his due process rights as guaranteed by the Second and Fourteenth Amendments.” Def. Brief, p. 2.

… (T)his court agrees with Justice Clarence Thomas’s McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged byany State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment.

In sum, sec. 941.23 is unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution.

That’s it in a nutshell: a circuit court has invalidated our CCW statute. Well, if you’re not lucky enough to practice in Clark County, then so what? you may ask. The answer: it turns out that you can cite the decision in any court in the state, Brandt v. LIRC, 160 Wis. 2d 353, 361-63, 466 N.W.2d 673 (Ct. App. 1991), aff’d, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), so the better question is, How can you not take advantage of the decision?

Very rough summary: Because the CCW statute flatly prohibits behavior entitled to constitutional (2nd A) protection as a “fundamental right,” the statute must survive “strict scrutiny” to remain standing. The statute isn’t “narrowly tailored” to achieve the governmental interest of health, safety and welfare of the citizenry, indeed, has been declared by the Wisconsin supreme court to be an “exceptionally restrictive scheme.” Nor is the ban the “least restrictive means” of achieving the governmental goals.”

Nice reference along the way to the “strong argument” of John Lott “that guns, and concealed carry of them, makes citizens safer.” (Possible aphoristic variant, but not necessarily one you’d want to quote to a court: “An armed society is a polite society.”)

It might be interesting to ponder how we’ve arrived at the New New Federalism, where you can argue greater personal liberty interests under the United States Constitution than Wisconsin’s (at least in certain respects such as this one). No need. More important that you leave philosophizing to another time and go file your own CCW cases.

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