In a ruling that is likely to renew the debate over Wisconsin's laws on carrying firearms, a county trial court has found that a state statute's total ban on carrying concealed weapons violates the Second Amendment to the U.S. Constitution.
The ruling, issued Oct. 12 by Judge Jon M. Counsell of the Clark County Circuit Court, dismissed an indictment against Joshua Schultz, who had been arrested for carrying a knife in his waistband, covered by his shirt.
Judge Counsell's opinion found that since the U.S. Supreme Court had held that the Second Amendment protects a fundamental right, any restrictions on that right must pass the Supreme Court's "strict scrutiny" test. That means the law must be narrowly tailored to serve a compelling state interest, and must be the least restrictive means of serving that interest.
While Judge Counsell agreed that there is a compelling interest in protecting public safety, he also found that the law is (as the Wisconsin Supreme Court has said) "exceptionally restrictive." He also noted that 48 states now have less restrictive laws than Wisconsin's, yet "there have been no shootouts in town squares, no mass vigilante shootings or other violent outbreaks attributable to allowed concealed carry."
Judge Counsell also rejected the argument that concealed carry can be prohibited since open carry is allowed; in support of that argument, he pointed to recent incidents in Wisconsin where people openly carrying firearms have been arrested for "disorderly conduct"--even though the state attorney general has advised agencies against bringing such charges.
This week's opinion is only the latest in a series that have created great uncertainty about the law among Wisconsin gun owners. In the 2003 case of State v. Hamdan, the Wisconsin Supreme Court held that individuals charged with violating the carry ban can use the state constitution's protection for the right to keep and bear arms as a defense. The court held that convenience store owner Munir Hamdan, who had been repeatedly robbed and attacked in his store in a high-crime neighborhood, was entitled to raise that defense.
But just three years later, the court ruled in the case of State v. Fisher that a tavern owner in a safer area was not entitled to raise the defense when arrested for carrying firearms in his vehicle. On the other hand, NRA-ILA supported the successful defense of pizza delivery driver Andres Vegas, who used a gun for self-defense after being the victim of multiple robberies. (For more information on that case, see http://www.nraila.org/Issues/Articles/Read.aspx?id=261&issue=003)
Anticipating the confusion that its rulings might cause, even the Wisconsin Supreme Court (in the Hamdan case) urged the legislature to take action to create a permit system. And in fact, the legislature has passed Right-to-Carry twice, but each time, the bills were vetoed by anti-gun Gov. Jim Doyle.
While the state may still appeal the court's decision in the Schultz case, the case should nonetheless remind all Wisconsin gun owners of the importance of this year's governor's race. Only by electing a pro-Second Amendment governor will the people of Wisconsin finally have the chance to clear up the confusion left by all of these rulings, and protect the Right to Carry once and for all.
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