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CCW, § 941.23 – Facially Constitutional

State v. Tiffany Michelle Flowers, 2011AP1757-CR, District 1, 12/13/11

court of appeals decision (1-judge, not for publication); for Flowers: Daniel A. Necci; case activity

Conviction for carrying a concealed weapon (gun in a purse, in a car), § 941.23, upheld against second amendment challenge to facial validity. Court rejects strict scrutiny test. (The statute was amended by 2011 Wis. Act 35, §§ 50-55, to allow among other things conceal-carry for licensees; the amendment doesn’t affect the outcome of this appeal, ¶4 n. 3.) Court is bound by State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328 (right-to-bear arms protected by Art. I § 25 subject to reasonableness, not strict scrutiny, analysis) with respect to state constitution, ¶¶5-6. As to the impact of recent second amendment decisions such as District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the court cites with approval United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011): “The Fourth Circuit observed that ‘[t]he upshot of these landmark decisions is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home.  But a considerable degree of uncertainty remains as to the scope of that right beyond the home.’  Id. (emphasis added),” ¶8.

¶10      We conclude that nothing in Heller or in the federal appeals decisions brought to our attention has the effect of overruling our supreme court’s decision in Cole.  Although the cases are not precise about the legal standard to be applied in that analysis, none specifically apply a strict scrutiny test to the analysis.  Here, as in Cole, the concealed firearm was possessed on a public street, not in a home.  Local and state governments have as legitimate an interest in promoting safety of the public using public streets by prohibiting concealed weapons there as the federal government demonstrated in Masciandaro with a similar prohibition to protect the safety of visitors using our national parks.  Prohibiting the carrying of a loaded weapon concealed in an automobile on public streets is a reasonable exercise of police powers under the holding of our supreme court in Cole, the holding of the United States Supreme Court in Heller, and the holding of the Court of Appeals for the Fourth Circuit in Masciandaro.

Contrary authority: State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10 (CCW statute facially unconstitutional under the 2nd A, as failing strict scrutiny analysis). Of course, Schultz  and Flowers aren’t reconcilable. But another trial court has found the statute unconstitutional as applied under similar basic facts (i.e., gun in car), State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11 (balancing test applied; roughly: on one side, Pinnow had demonstrable security need for gun and on other, the gun was encased and unloaded so he didn’t pose immediate danger). That result isn’t incompatible with Flowers, which doesn’t discuss as-applied analysis. Flowers’ brief solely raises a facial challenge; nor does it recite any facts that might have established some need for protection – unlike Pinnow, who asserted his status as victim of an armed robbery.

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