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Wisconsin Constitution – Construction – Scrutiny of Fundamental Right – “Bear Arms”

State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate


¶20. We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution’s Declaration of Rights to be amended. See Monks, The End of Gun Control, 2001 Wis. L. Rev. at 249. Article I, Section 25 explicitly grants a right to bear arms….¶21. Nevertheless, we do not agree with Cole’s position that strict scrutiny or intermediate scrutiny is required in this case…. We find the precedents of other states, favoring a “reasonable” test, to be persuasive in the context of the right to bear arms.

¶22. Generally, when other courts have evaluated challenges to the validity of gun control statues under state constitutional provisions, the test has been whether the statute constitutes a “reasonable regulation” in light of the state’s police powers…. We are persuaded that this standard is appropriate because the interests of public safety involved here are compelling. See id. at 259 n.69-70 (and cases cited therein)….

¶26. Although Article I, Section 25 creates a fundamental right, as the above analysis shows, such a right is still subject to reasonable restriction. As such, we find the correct test to be whether or not the restriction upon the carrying of concealed weapons is a reasonable exercise of the State’s inherent police powers. Such a test should not be mistaken for a rational basis test. The explicit grant of a fundamental right to bear arms clearly requires something more, because the right must not be allowed to become illusory….

¶27. … Under circumstances such as those in this case, the reasonableness test focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote the public welfare….

Compare, District of Columbia v. Heller, USSC No. 07-290, 6/28/08 (2nd amendment safeguards personal right to keep and bear arms). Though the Court doesn’t reach question of what level of scrutiny applies to challenge to regulation of this right, Court does reject idea that this right’s “core protection [may be] subjected to a freestanding ‘interest-balancing’ approach”; whether the 2nd amendment applies to states through the incorporation doctrine remains to be seen. Does Heller invalidate CCW statutes? Not according to People v. Yarbrough, Cal App No. A120721, 12/17/08.

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