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9/22/2017 12:11:25 AM
Posted: 6/11/2002 10:37:50 AM EDT
[Last Edit: 6/13/2002 7:09:22 AM EDT by Corey]
EDITED a second time to say that the CCW constitutionality issue will be decided within the next three weeks!! See p. 2. SEE PAGE 2 FOR MORE INFO. This may still be an ace up our sleeve when we try for the PPA next year. [:(!]
RELEASE OF SUPREME COURT OPINIONS The following opinion is scheduled for release on Thursday, June 13, 2002, and will be available on the court Web Site: [url]www.courts.state.wi.us[/url], on the morning of the release date: CASE NUMBER CAPTION 01-0224-CR State v. Adam S. Gonzales Dated: June 10, 2002 NOTICE: This list is tentative and the court reserves the right to make additions or deletions without notice. This experimental Opinion Release Procedure is subject to modification or termination by the Supreme Court.
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This case will decide the constitutionality of sec. 941.23, Stats. which prohibits concealed carry. A decision by the WI Supreme Court holding the statute unconstitutional would give us Vermont model concealed carry. There were some indications in the oral arguments that a decision might be favorable to the RKBA. Hope I'm not just being overly optimistic. If you want to hear the oral argument, go to this link [url]http://www.courts.state.wi.us/supreme/submenu/oral_arguments.htm[/url] and click on "listent to an oral argument online." Then type in the case number 01-0224. It's about 90 minutes long. I'll keep everyone up to speed. And if the statute is struck down, I'll be the first one reaching for my holster!! Heck, it would be just in time to pack when the anarchists come to town this weekend to protest at the mayor's convention. [:)]
Link Posted: 6/11/2002 10:52:47 AM EDT
I hope you guy's get your CCW! I doubt the anti's would let it be a Vermont style, but this could open the door for a better law.
Link Posted: 6/11/2002 11:49:42 AM EDT
[Last Edit: 6/11/2002 11:50:51 AM EDT by Muad_Dib]
I spent some time last week listening to this. It sounded very promising to me, but I'm not a lawyer, nor do I play one on television. Toward the end, one of the female speakers (I don't know who she was) says that it may have a suprise ending.
Link Posted: 6/11/2002 1:02:15 PM EDT
BTT All WI members need to know about this one.
Link Posted: 6/11/2002 3:20:12 PM EDT
Sounds like some judges are banging their heads right now to figure out how to reconcile this:
Right to keep and bear arms. Section 25 [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose.
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with the concealed carry ban. My money is on them coming up with some stupid way of doing it. They'll probably try to use the "lawful purpose" part. [puke] I'll be very surprised if they shoot down the carry ban.
Link Posted: 6/11/2002 4:07:06 PM EDT
Originally Posted By AlClenin: They'll probably try to use the "lawful purpose" part. [puke]
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You should take the time to download and listen to the arguements. They have a very lengthy discussion on what constitutes a lawful purpose. It seemed that the concensus was that unless you are intending to commit a crime, or commiting a crime, carrying a loaded firearms is perfectly legal. They even talked about the legality of carrying a shotgun (I think) down state street and "waving" it around for everyone to see. In fact this is sort of the key behind the arguement. In todays society we can no longer openly carry a weapon without drawing at least a little attention. The ban on CC was created during a time when open carry was commonplace, even inside the capital. The intent of the ban was to create an environment where everyone would be aware of who was and who was not armed. We have a constitutionally guaranteed right to bear for defense and security. Considering the modern social reaction to open carry, and the states ban on concealed carry, it is argued that the state is essentially nullifying the keep and bear arms for security, defense, and any other lawful purpose clause. And I believe that the constitution takes precidence over any other laws on the books. It is up to these judges to interpret and uphold the laws dictated by our states constitution. I just hope they get it right. [:)]
Link Posted: 6/11/2002 4:12:35 PM EDT
Originally Posted By Muad_Dib:
Originally Posted By AlClenin: They'll probably try to use the "lawful purpose" part. [puke]
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You should take the time to download and listen to the arguements. They have a very lengthy discussion on what constitutes a lawful purpose. It seemed that the concensus was that unless you are intending to commit a crime, or commiting a crime, carrying a loaded firearms is perfectly legal. They even talked about the legality of carrying a shotgun (I think) down state street and "waving" it around for everyone to see. In fact this is sort of the key behind the arguement. In todays society we can no longer openly carry a weapon without drawing at least a little attention. The ban on CC was created during a time when open carry was commonplace, even inside the capital. The intent of the ban was to create an environment where everyone would be aware of who was and who was not armed. We have a constitutionally guaranteed right to bear for defense and security. Considering the modern social reaction to open carry, and the states ban on concealed carry, it is argued that the state is essentially nullifying the keep and bear arms for security, defense, and any other lawful purpose clause. And I believe that the constitution takes precidence over any other laws on the books. It is up to these judges to interpret and uphold the laws dictated by our states constitution. I just hope they get it right. [:)]
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Hmm, that sounds promsing. I'll check it out tomorrow, when I upgrade this damn 24K modem connection. We'll see how it comes out in a couple days, but after the CCW bill fiasco I'm not getting my hopes up. Do you know anything about the political leanings of the judges?
Link Posted: 6/11/2002 4:18:57 PM EDT
Wooo Hoooo! My Kimber is ready to go. I just need a Fobus 1911 mag carrier. Anybody got one to sell? J/K....they aren't going to let it happen. With the state of politics in WI, my guess is the judges will all be sending their kids to UWM for free courtesy of Chvala, Risser, and Doyle.
Link Posted: 6/11/2002 4:23:15 PM EDT
Originally Posted By TheKill: Wooo Hoooo! My Kimber is ready to go. I just need a Fobus 1911 mag carrier. Anybody got one to sell? J/K....they aren't going to let it happen. With the state of politics in WI, my guess is the judges will all be sending their kids to UWM for free courtesy of Chvala, Risser, and Doyle.
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My money would have to be on that outcome.
Link Posted: 6/11/2002 6:29:58 PM EDT
[Last Edit: 6/11/2002 6:33:55 PM EDT by Corey]
Keep in mind that Chvala will probably NOT be around for very long. There's a lot of talk going around the rumor mill these days, but I don't think there are very many scenarios for Chvala to come out of this clean. [EDITED to add the Caucus scandal -- both Chvala as the majority leader in the Senate and Jensen in the Assembly are facing the possibility of criminal charges.] Risser is basically a Democrat puppet for the downtowners. He isn't going anywhere soon, however. Doyle will likely not win the Democratic primary for governor. Unfortunately, Republican Governor Scott McCallum stands a better chance of beating Jim Doyle than he does Tom Barrett (too bad, with a name like that you'd think he'd be pro-RKBA). The only satisfaction that I would take out of this is that Doyle is out of the political limelight -- no longer Attorney General and not Governor. Republican Tommy Thompson has been Governor for what, 15 some odd years? I think the WI Supreme Court, while at times incredibly liberal, can have their moments of sanity. I've heard a fair share of oral arguments before, and I couldn't believe how the justices went after the Asst. AG. Even Shirley Abrahamson, a very liberal justice, took a crack at the state during oral arguments. When I heard her voice, I expected a softball to get the AAG back on track. Instead, IIRC, she basically made the point that the inconsistencies in the states position (and the CCW law) are ludicrous. It's sometimes harder to follow the tape than a live argument, but I was surprised to hear the tone of the court. I see one of three outcomes in this case: 1. The CCW ban is a legitimate exercise of the State's police powers. Nothing changes. 2. The CCW ban is unconstitutional in light of the WI RKBA Amendment. Everything changes. We instantly become Vermont model. If you can legally possess a handgun (i.e, not a felon, no domestic convictions, not under the influence of alcohol or drugs, etc.), you can carry it concealed. Go get your gun. 3. In this case, because the defendant was a felon (or some other reason), the CCW ban was a proper exercise of police powers. But the court is very concerned with the fact that the CCW ban is not narrowly enough tailored to pass muster in other case. Basically, the court keeps the CCW ban in place, but cautions that there need to be options for legal concealed carry and they could see some cases where the CCW ban is unconstitutional. Status quo for now, but you can almost be assured the Personal Protection Act will pass next session. IMHO, I see #2 as being the correct answer. Could happen. #3 would be a step in the right direction, and the court wouldn't be making us an unrestricted CCW state -- it would be a "safe" answer for the court. #1 would be very problematic for future legal concealed carry. Guess we'll wait and see. I'll post what I find first thing Thursday morning. EDIT noted in text. Also for typos.
Link Posted: 6/12/2002 7:21:03 AM EDT
BTT I'll be chewing my fingernails down for the next 24 hours.
Link Posted: 6/12/2002 7:34:29 AM EDT
Originally Posted By Corey: 2. The CCW ban is unconstitutional in light of the WI RKBA Amendment. Everything changes. We instantly become Vermont model. If you can legally possess a handgun (i.e, not a felon, no domestic convictions, not under the influence of alcohol or drugs, etc.), you can carry it concealed. Go get your gun.
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Does this mean anyone over 18 would be allowed to carry? This is beind hear tommorow? What time? -Jared
Link Posted: 6/12/2002 8:12:39 AM EDT
I think that you still must be able to legally own a handgun. Don't you have to be 21 to purchase a handgun in WI? The courts decision is [i]scheduled[/i] to be released tomorrow. My fingers are crossed.
Link Posted: 6/12/2002 8:21:04 AM EDT
[Last Edit: 6/12/2002 8:41:17 AM EDT by Corey]
This case has been in the works for many months now. The WI Supreme Court will be issuing it's decision tomorrow. It should be available tomorrow online for downloading. Do not take what I say as legal advice. I am not your attorney. I will have to read the decision and then come to my own conclusion as to what it means. Then it's my decision on what I can and cannot do. But, presuming that sec. 941.23, Stats. is struck down as unconstitutional, then a qualified "yes" it does seem to mean that anyone who can legally possess a handgun can conceal it. [b]Again, this is not being offered as legal advice. Simply discussion. Read the case tomorrow for yourself and, if necessary, consult your attorney.[/b] Also see what the AG's office and your DA has to say about the law and what you can do. This is putting the cart before the horse, because the case could uphold the law. We'll know in less than 24 hours. EDITED to add that I neglected to mention anything about the age. I thought it was 21 to possess a handgun, but can't refer you to a statute number.
Link Posted: 6/12/2002 8:22:38 AM EDT
Muad, You've got be 21 to purchase a handgun from an FFL, Its a federal law. However, in Wisconsin, you only have to be 18 to "posess" a handgun. You can also purchase a handgun from a private party IN the state when you are 18 as well. It just peeked my interest as Corey said anyone lawfully able to posess a handgun would be allowed to carry. Not sure if I like the Vermont style or not. I mean its great for the RKBA's, but they anti's were going nuts about "wild west shootings" when shall issue was in the works. I can't imangine it'll go through. But we can hope! Has this been covered by the media? Seems like I haven't heard to much about it. -Jared
Link Posted: 6/12/2002 8:55:03 AM EDT
PvtJoker: You might be right. WI regulates "Possession of a dangerous weapon by a person under 18," sec. 948.60. I haven't done an exhaustive search, but in breezing through the statutes can't find anything that relates to no handguns until 21. I think that there are enough inconsistent opinions out there that the WI Supreme Court might need to clarify application of 941.23. For instance: State v. Keith, 175 wis. 2d 75 (Ct. App. 1993). "To 'go armed' does not require going anywhere. The elements for a violation of s. 941.23 are: (1) a dangerous weapon is on the defendant's person or within reach; (2) the defendant is aware of the weapon's presence; and (3) the weapon is hidden." INCONSTENT WITH THE STATE'S POSITION IN GONZALEZ. At oral argument, the state argued that you can carry a concealed weapon in your own home. Keith was on the porch of her duplex with a gun in her purse. Does porch versus in the home make a difference? I don't know, but this could point to 941.23 being overly broad in its application (i.e., not narrowly tailored). State v. Walls, 190 Wis. 2d 65 (Ct. App. 1994). "A handgun on the seat of a car, indiscernible from ordinary observation by a person outside and within the immediate vicinity of the behicle, was hidden from view for the purposes of determining whether the gun was a concealed weaopn under this section." INCONSISTENT WITH THE STATE'S POSITION IN GONZALEZ. At oral argument, the state argued that you could carry open but once you get into your car you're violating DNR code of improper transport of an uncased firearm. Muad, does this jive with your recollection of the oral arguments? I wish I had a transcript of them because a lot of the issues addressed there were not in the parties briefs. But, these are some of the reasons that I think the WI Supreme Court might find 941.23 unconstitutional, or at least encourage the legislature to revamp allowing some form of legal concealed carry. [b]Disclaimer: Not legal advice. I haven't spent the hundreds of hours on this topic necessary to write a brief to the court, so I may be wrong. Heck, your attorney may be wrong, but then you have no one buy yourself to blame for hiring him/her![/b] [:P]
Link Posted: 6/12/2002 9:01:24 AM EDT
Originally Posted By Corey: Muad, does this jive with your recollection of the oral arguments?
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Yes it does.
Link Posted: 6/12/2002 9:50:19 AM EDT
[Last Edit: 6/12/2002 9:51:16 AM EDT by AV1611]
I wasn't aware of this court case. I was truly sickened by the chicanery and abuse of power perpetrated by Risser and Chvala this past winter in killing SB357. I pray I wake up tomorrow morning and am pleasantly surprised by the outcome of the WI Supreme Court's decision. My Glock 26 will conceal very nicely :-). AV1611 out...
Link Posted: 6/12/2002 11:05:28 AM EDT
Just called the Clerk of Courts office asking what was the quickest way to get the decision. I thought there might be some delay online. The person that I spoke with said it's $0.40 per page in person but free online. Both are available immediately at 8:00 a.m. Anyone guess what I'm going to be doing tomorrow at 0800?
Link Posted: 6/12/2002 11:09:25 AM EDT
Link Posted: 6/12/2002 11:54:28 AM EDT
Anyone have Dick Baker's email address? Wonder if he knows about this. I can't get a hold of his address, though -- it's on my home computer. Maybe someone can shoot him the link to this thread? I know he was following this case.
Link Posted: 6/12/2002 12:33:14 PM EDT
[red]DBAKER@wi.rr.com[/red] Dudes, Its been far too long since I've seen you guys sitting in an outhouse with a bungee cord wrapped around your legs.[/IDPA Match reference=off} I'd of piped in sooner but I've been busier than a cat trying to cover crap on a marble floor. I'm taking off tomorrow for some training in Ohio ([url]http://www.tdiohio.com[/url]) and won't be back til late Monday. I recall that Ohio had a judge recently determine that their laws prohibiting CCW were violating their State constitution - I'll see if I can't solicit an opinion or two from our Ohio brothers in the struggle. It would be very nice indeed to return to Wisconsin and find this bullshit prohibition lifted. I know some people wouldn't be "comfortable" with a Vermont style law. If it was [i]soooooo[/i] terrible, Vermont could cancel it anytime it wanted to - in fact, [b]ANY[/b] State could [b]puss-out[/b] of their concealed carry law anytime they want to - BUT THEY DON'T NOW DO THEY? [b][size=4]Do[/size=4](gettin' pretty damn tired of people saying it'll never happen here)[size=4]lomite[/size=4][/b][blue][size=2]*[blue][/size=2] [blue][size=1]* Signature line style property of ETH (2002). All rights reserved.[/blue][/size=1]
Link Posted: 6/12/2002 12:39:17 PM EDT
Corey...thanks for the update. BTW, do you live in the People' Republic of Madison? Or close by?
Link Posted: 6/12/2002 1:23:10 PM EDT
[Last Edit: 6/12/2002 6:21:38 PM EDT by Corey]
Dolo: Have a good trip. So we didn't wear you down enough and you had to demonstrate your prowess with 3 guns the next day, huh? Heard you did well. And I think about the outhouse stage every time I take a ... shower, yeah, that's it! [:)] That match was a blast! You able to check in tomorrow, or do you want me to try and give you a call? Lemme know. Thanks for the email addy -- I shot this link to Dick. Stoney-Point: Yup. The PRM. Risser is my Senator. [puke] EDITED for typo.
Link Posted: 6/12/2002 6:29:07 PM EDT
I was able to listen to the end of the oral argument tonight and here is the reference to "surprise" (this is just a paraphrase): Chief Justice Shirley Abrahamson: "This case may have a surprise ending, or it may not, but there is a surprises issue which has come up...." She is referring to whether the constitutional amendment applies to Gonzales because his offense took place after the ratification of the amendment by statewide majority vote, but before the act of certifying the ratification by some bureaocrat in Madison. I read the letter briefs that came after oral argument (just breezed through them over lunch one day), but think the defense has a strong argument supported by case law that the people's vote (not some administrative act) is what amends the constitution. So, I'm not sure how much can be read into that comment. Oral arguments, as formal as they are, can be quite colloquial at times.
Link Posted: 6/12/2002 6:39:50 PM EDT
Originally Posted By Corey:She is referring to whether the constitutional amendment applies to Gonzales because his offense took place after the ratification of the amendment by statewide majority vote, but before the act of certifying the ratification by some bureaocrat in Madison. I read the letter briefs that came after oral argument (just breezed through them over lunch one day), but think the defense has a strong argument supported by case law that the people's vote (not some administrative act) is what amends the constitution.
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That would be just like the WI state gov fucks to trample on this dude because some jackass took an extra afternoon to sign a paper back when the amendment was made. My bet is on some rediculous technicality ending this show.
Link Posted: 6/12/2002 8:06:00 PM EDT
I can hardly wait untill tommorow morning. Should be interesting to say the least. Anyone have a website where it will be available? -Jared
Link Posted: 6/13/2002 4:29:53 AM EDT
36 minutes according to my watch.
Link Posted: 6/13/2002 5:23:21 AM EDT
Shot down on technicality (constitutional amendment not in effect at the time of the offense). More details to follow.... [:(!]
Link Posted: 6/13/2002 5:31:24 AM EDT
I just finished reading the opinion. Damn! It sounds like the only problem was that the timing of the issue. Did I miss something? It seems that this leaves much room for further interpretation of the constitutional ammendment. IF someone (who otherwise was breaking no other law) was to challange the concealed carry ban, do you think that the courts would lean in favor of the accused?
Link Posted: 6/13/2002 5:35:17 AM EDT
[url]http://www.courts.state.wi.us/supreme/sctoday.asp[/url] Hope this works. I wasn't able to get this to download on my computer (must've been doing something wrong). I got mine from a coworker who must be more computer literate.
Link Posted: 6/13/2002 5:37:28 AM EDT
IF someone (who otherwise was breaking no other law) was to challange the concealed carry ban, do you think that the courts would lean in favor of the accused?
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We need a volunteer.... Anyone?
Link Posted: 6/13/2002 6:22:35 AM EDT
Originally Posted By Corey:
IF someone (who otherwise was breaking no other law) was to challange the concealed carry ban, do you think that the courts would lean in favor of the accused?
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We need a volunteer.... Anyone?
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I guess if I ever get pulled over and my car is searched I'd be an involuntary volunteer.
Link Posted: 6/13/2002 6:36:04 AM EDT
State v. Clenin, 02 CM 223. [;D] Seriously, though, [i]when[/i] this issue comes up again, a better record needs to be made than that in Gonzales. If I were the defense attorney, I would request an evidentiary hearing on a motion to dismiss based on the RKBA. At that hearing I would call a bunch of police officers (who my investigators have spoken with) and ask them if they would arrest someone for open carry on State Street. For that matter, it would be great if prior to the hearing someone actually got arrested for open carry on State Street. That person and the arresting officers would be witnesses. I would also call tactical experts who would say that open carry presents potential gun grab problems. Now you've laid your factual foundation for arguing your motion to dismiss. In Gonzales, they were simply arguing hypothetically with no evidentiary record. I need to see if Cole's offense date is before or after the certification of the amendment.
Link Posted: 6/13/2002 7:37:02 AM EDT
Hold the presses, folks! Turns out St. v. Cole, 01-0350-CR, is still pending on the issue of constitutionality of 941.23. It is due out this term (June to early July) and it [b]the effective date of the amendment (i.e., the techicality in Gonzales) [i]will not be an issue![/i][/b] Keep checking [url=http://www.courts.state.wi.us/supreme/sc_releasememo.asp]here[/url] to see the opinion release memo.
Link Posted: 6/13/2002 7:49:48 AM EDT
Originally Posted By Corey: Hold the presses, folks! Turns out St. v. Cole, 01-0350-CR, is still pending on the issue of constitutionality of 941.23. It is due out this term (June to early July) and it [b]the effective date of the amendment (i.e., the techicality in Gonzales) [i]will not be an issue![/i][/b] Keep checking [url=http://www.courts.state.wi.us/supreme/sc_releasememo.asp]here[/url] to see the opinion release memo.
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Man, it sure pays to have a buddy on the inside [;)] I'm giddy with anticipation!
Link Posted: 6/13/2002 8:57:27 AM EDT
[Last Edit: 6/13/2002 8:59:06 AM EDT by Corey]
Actually, all of this is public record. I just happen to work close to the State Law Library (where Supreme Court briefs are kept). [;)] I looked on [url=http://ccap.courts.state.wi.us/InternetCourtAccess/]CCAP[/url] (cool new board code I just learned how to use [:)] ) and it shows the offense date for Cole is November 6, 1999 -- well after the date of certification of the RKBA amendment (November 30, 1998). The underlying circuit court case number for Cole is 99 CM 10862. Now, back to biting my fingernails.... Good news is, Cole doesn't appear to have any other criminal record in WI. CCAP just lists one other traffic case (OAS 1st). Though he did plead to Poss. THC allow with the CCW. Still, at least he wasn't a felon like Gonzales. As I understand it, supreme courts don't decide issues of constitutionality unless they absolutely have to. They didn't have to in Gonzales and their ruling is understandable. The issue of effective date of a constitutional amendment hadn't been decided before this. My only concern is that Cole will be decided on briefs only and no oral argument. It looks like Cole is scheduled for a plea after the expected release of the SCt. decision.
Event 45 Date Event Tag 05-31-2002 Review Court Official Court Reporter Kahn-24, Charles F. Jolin, Amy Additional text Defendant Phillip Cole in court with attorney Michael Gould. Daniel J Gabler appeared for the State of Wisconsin. Court ordered case adjourned for projected guilty plea in Branch 24.fw Plea hearing scheduled for 07-08-2002 at 01:30 pm.
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EDITED for typo.
Link Posted: 6/24/2002 11:28:24 AM EDT
I just thought I'd bump this back to the top. I checked the status of State v. Phillip Cole District: 1 Appeal Number: 01-0350-CR today and it looks like it is still "Awaiting Opinion/Decision."
Link Posted: 6/24/2002 6:59:07 PM EDT
Muad: Yeah, there have been a flurry of decisions the past few weeks (maybe 7-8 in the next few days), which means they're winding down to the end of their "season." We'll need to carefully read Cole (unless it's a victory [:D] ) because there is a new case recently certified. Apparently some convenience store owner was contacted about a potential liquor law violation and was found to be carrying a pistola. When asked why he had it, he said that the business had been the subject of an armed robbery like 3-4 times in the past year. I don't know the exact details of this case, but if Cole doesn't do it for us and at least has some encouraging language, then it will help us put the heat on the legislature.
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