Posted on 11/15/2002 9:18:37 AM PST by Jean S
Madison - Wisconsin's 130-year-old prohibition on carrying concealed weapons runs afoul of a 1998 constitutional amendment establishing a right to keep and bear arms, lawyers told the state Supreme Court Tuesday.
Justices on the state's highest court heard arguments in a pair of Milwaukee cases challenging the concealed carry law as infringing on the amendment's guarantee of citizens' "right to keep and bear arms for security, defense, hunting, recreation and any other lawful purpose."
The court heard arguments in two cases, one in which Capitol Drive grocery store owner Munir Hamdan was convicted for carrying a concealed handgun in his store. In the other case, Phillip Cole was convicted for carrying concealed handguns in a car in which he was a passenger.
"We've got a statute that's so messed up," Hamdan's lawyer Chris Trebatoski said of the concealed carry law. "Get rid of the thing. Legislature, do your job. Fix it."
Hamdan, the victim of numerous robberies, was fined $1 by a Milwaukee County circuit judge for carrying a plastic-wrapped pistol in his pocket at his Capitol Foods store near N. 24th St. and W. Capitol Drive when police stopped to check his operating licenses.
At closing time on Nov. 26, 1999, Hamdan had just taken the .32-caliber pistol from beneath the store's counter, wrapped it in plastic and was about to hide it in a back room when police arrived. He placed the weapon in his pocket and went to answer officers' questions.
When they asked if he had a firearm, he pulled the handgun out of his pocket and was later charged by prosecutors for carrying a concealed weapon, a misdemeanor. Between 1997 and 1999, Hamdan survived three armed robberies, including a 1997 shootout that left the robber dead on the sidewalk.
"You're telling storekeepers in the city of Milwaukee . . . the only way you can have a gun is if people can see it," Trebatoski said. "You're telling people, this store is free rein. Go for it."
Hamdan's lawyers argued that the concealed carry law should not apply to merchants in their businesses or homeowners in their homes.
"The absurd result is that homeowners and shopkeepers who leave guns, for example, in bed stands or under counters, are in violation," Hamdan's lawyers argued in their briefs.
Furthermore, they argued that the constitutional amendment protects Hamdan's right to carry a concealed weapon for his own security and protection. They noted that Hamden was not advocating a right to go outside his store with the weapon.
"He has a right to possess a concealed weapon, whether it is on his person or under a counter in his business to protect himself, his business and his property," his lawyers argued, adding that the Supreme Court has not examined the distinction between "going armed" with a concealed weapon and possessing one.
But Assistant Attorney General Jeffrey Kassel said the amendment did not supersede the concealed carry law, which he said is on the books to protect public safety.
Kassel argued that the chances of someone being arrested for having a gun in their bed stand were "infinitesimal," but Trebatoski disagreed and said Hamdan was an example.
"If Mr. Hamdan is not on the fringe, then every single person in the state who has a gun is at risk of not being on the fringe, either," he said, noting that Hamdan's family often cooked and ate in the store and "that's close to being a house."
Justice David Prosser was concerned about the implications for homeowners who store guns in cabinets for safety and said the prospect of them being charged for a concealed weapons violation is "patently absurd."
Justice Jon Wilcox agreed and called it "bizarre," and added "it doesn't seem to me to be reasonable that if you're going from Place A to Place B in your own place of business that you can't carry it."
Trebatoski said that if justices do not strike down the law, they could allow juries to decide whether individual cases met the constitutional requirements for bearing arms.
Chief Justice Shirley Abrahamson asked whether that wouldn't be a good compromise, but Kassel argued that the system would "swallow" the concealed carry law because every defendant would claim constitutional privilege.
Justice William Bablitch interjected, "If the people of this state believed they were essentially swallowing the concealed weapons law, it's not our job to tell them they were wrong."
When Cole was arrested during a routine traffic stop, Milwaukee police found two handguns and marijuana in the car. Cole said he needed the guns for protection.
His lawyer, assistant state public defender Michael Gould, said the law guts the constitutional right to bear arms.
"Because of the prohibition, there is no way that citizens can legitimately exercise their right to carry arms for self-defense or security," Gould said.
Kassel said that to invalidate the law would contradict the intention of the amendment, which qualifies the right to keep and bear arms with the phrase "any other lawful purpose."
Kassel said lawmakers were aware of the concealed carry law, and the possible conflict with the amendment, and chose not to repeal the law.
Justice Diane Sykes asked, "Isn't the concealed weapons law a total impairment of a constitutional right?"
Kassel answered that the law is simply a requirement of the manner in which a weapon is carried.
Time to add another northern state to the list of "shall-issue" states.
Time for all 48 states to become "shall issue". (CA isn't really a part of the US; neither is NY).
He also wanted percussion caps declared destructive devices. The destructive device classification was also how he planned the ammo ban.
The only thing I have against CCP is that it provides the "authorities" with a study in black-and-white that you have a piece. They just might to come take it away from you someday.
I agree. Plus this "right" is now on the same level as my driving privileges -- I must go and apply. What other RIGHT must be applied for???? In this I support GOA.
On the other hand, there are thousands in MI who now can carry who, a year ago, could not.
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