Confirm Action

Are you sure you wish to do this?

Confirm Cancel
Member Login
Site Notices
1/25/2018 7:38:29 AM
Posted: 7/13/2003 6:23:04 PM EST
[Last Edit: 7/13/2003 6:27:33 PM EST by Corey]

The following opinions are scheduled for release on Tuesday, July 15, 2003, and will be available on the court Web Site: www.wicourts.gov, on the morning of the release date:


#01-0056-CR State v. Munir A. Hamdan

#01-0350-CR State v. Phillip Cole

For those who don't know, this case will decide the constitutionality (or lack thereof) of sec. 941.23, the prohibition on concealed carry in WI.

I sat through the oral arguments and have read all the appellate court records. I am of the opinion that something good for the pro-RKBA community will come out of this, even if it's just a jury instruction affirmative defense.

Tense and waiting....
Link Posted: 7/14/2003 7:40:34 PM EST
Let's hope for the best guys!
Link Posted: 7/14/2003 8:04:18 PM EST

Originally Posted By Corey:
even if it's just a jury instruction affirmative defense.

Hopefully more than this, as if it's just an AD instruction, our nice & friendly Milwaukee County DA will still prosecute to the max (even if he looses every case) just to discourage carrying...

They do it now with (perfectly legal) open carry...

The jury instruction route might discourage prosecutions outside of Milwaukee, Racine & Madison, but where is there the most need for CCW (i.e. most crime)??? Well, that would be Milwaukee & Racine...
Link Posted: 7/15/2003 3:24:46 AM EST
Well it's about freaking time!!!!
Link Posted: 7/15/2003 3:32:13 AM EST
[Last Edit: 7/15/2003 3:59:11 AM EST by photoman]
Hey guys it's up! but only in PDF, the HTML version was not there. Someone who speaks the legal language needs to read this opinion and translate it.

Cole was upheld!

And from the sounds of it the Hamdan decision says CCW is legal in your place of business, or home only. So whats next?
Link Posted: 7/15/2003 4:40:06 AM EST
[Last Edit: 7/15/2003 4:41:55 AM EST by NAM]

I'm guessing this is a good sign.....


Link Posted: 7/15/2003 8:34:43 PM EST
[Last Edit: 7/15/2003 8:41:16 PM EST by Dave_A]
To me, it sounded like we got the 'Affirmative Defense' option, which is available when the following questions come up 'Yes':

1) Did the defendant's interest in concealing the weapon substantially outweigh the State's interest in enforcing the concealed weapons statute?

2) Was concealment the only reasonable means under the circumstances to carry the gun.

This decision could easily be construed to extend to cars and other property posessions, but specifically excludes walking-in-public.

This AD is interesting in that it could logically prove to PERMIT PUBLIC CCW in Milwaukee, Racine, & other anti-gun cities where open carry will get you arrested (satasfying #2), and you have a compelling interest in carrying for defense or security (i.e. you're carrying a cash deposit to the bank from work, or transporting high-value goods, or you believe you are likely to be a victim of a crime).

The argument would be something like 'These circumstances (list why you feel you need a gun) compell me to carry a gun for the purpose of security, and because the local police arrest you if they see you excercise your right to bear arms openly, the only way I could exercise my right was to conceal the weapon so as to lower my chances of being arrested for a constitutionally protected activity. If I was not facing certain (unconstitutional, if both open carry and concealed carry are illegal your right to bear arms is gone) arrest for open carry...

Other points include the fact that the total prohibition on carrying loaded weapons in cars (concealed or otherwise. It's a hunting regulation law) probably would not survive a supreme court challenge (as it completely prohibits exercise of RKBA in any fashion)...

Also, the Cole case was not as much of a disaster as someone might think. He lost because he plead guilty, and thus waived his chance to appeal on the question of application (weather or not the law was unconstitutional AS APPLIED TO HIM (This is how Hamadan won: he plead innocent, and was thus able to argue that the specific application violated his rights)). Even if he had, the 'lawful purpose' test could have caused trouble for Cole, as he was engaged in other illegal conduct at the time of his arrest (drug posession).

HOWEVER, in Cole the Court finds that RKBA is a fundimental right (on order with freedom of speech & religeon), which could prove usefull in the future...

The court split Hamadan 3 ways: One judge wanted to strike down the whole CCW statute, another wanted to uphold it as-is, and the majority cobbled together the Affirmative Defense angle as a way to save the statute while decrying judicial activisim at the same time (hypocritical, but better than upholding it with no AD)...
Link Posted: 7/16/2003 5:27:35 AM EST
Are you sure about this

HOWEVER, in Cole the Court finds that RKBA is a fundimental right (on order with freedom of speech & religeon), which could prove usefull in the future...

Or was it just the one judge that said it wasn't a fundemental right.
Top Top