*1 Plaintiff-Respondent, Wisconsin, State Defendant-Appellant. Munir A. Hamdan, Supreme Court 14, 2002. Decided argument No. 01-0056-CR. Oral November July
For the was attorney general, Kassel, with Jeffrey J. assistant attorney Doyle, was E. whom on brief James general. This involves PROSSER, 1. DAVID T. J. case city on
an incident that occurred Milwaukee evening defendant, The November (Hamdan), operated gro- Hamdan Munir owned cery Capitol time to close store on West Drive. As came kept handgun he store, removed a Hamdan register it under the counter near the cash and carried storage. point wrapped room At he into a back some plastic bag. gun in a room, back two 2. While Hamdan was plain police clothes Milwaukee officers entered summoning pressed buzzer, his store. Hamdan's son wrapped gun into his father, and Hamdan shoved the pocket went out meet the visitors. trouser they explained were con- officers *8 ducting one of officers a license check. Hamdan led register kept glass-enclosed area where he cash to a ensuing During the con- him licenses. and showed gun kept if he versation, the officer asked Hamdan and, Hamdan so, if where it was located. store affirmatively pulled wrapped answered and then gun pocket from the front of his trousers. The officers gun confiscated the but did not arrest Hamdan or charge him with an offense. subsequently charged 4. Hamdan was with car-
rying weapon, in violation of Wis. Stat. § (1999-2000),1 jury 941.23 and convicted aat trial. He appealed his conviction and his case is before this court bypass appeals pursuant on § of the court of to Wis. Stat. (Rule) 809.60. any, 5. We are asked to determine what effect, if
a new amendment to the Wisconsin Constitution has on ability prosecute punish State's weapons. of concealed amendment, new I, Article people 25, Section declares that the have the keep purposes.2 and bear arms for lawful While Wis. (the statute) § Stat. 941.23 CCW withstands a facial challenge constitutionality to its under the amendment, Cole, see State v. 2003 WI 27, 264 Wis. 2d § Wisconsin Stat. 941.23 provides: "Any person except a peace goes officer who armed with a dangerous concealed and guilty of a A Class misdemeanor." A "peace officer" is "any defined person as vested law duty with a to maintain public order or to crime, make arrests for duty whether that extends to all crimes specific or is limited to. crimes." Wis. Stat. 939.22(22). § A A Class punishable by misdemeanor is a fine not $10,000 to exceed imprisonment or months, not to exceed 9 939.51(3)(a). both. Wis. Stat. subsequent All references to the Wisconsin Statutes are to the 1999-2000 volumes unless otherwise indicated. I, Article Section 25 of the Wisconsin pro Constitution entirety:
vides its people "The have the keep security, defense, bear arms for hunting, any recreation or other lawful purpose." *9 recognize are 328, we there now
665 N.W.2d application of the CCW which a strict circumstances may limitation result an unreasonable statute right. case, In Hamdan's we must new constitutional keep to and whether constitutional determine security permitted to arms for or defense Hamdan bear carry a in his store under the circum- notwithstanding case, of this the CCW statute. stances it was and 6. We conclude that unreasonable apply punish to unconstitutional the CCW statute on facts we understand them. Strict Hamdan application as effectively CCW disallowed
of the statute exercise of Hamdan's constitutional the reasonable right purpose keep bear for the lawful and arms Considering security. public the diminished interest applying in the of Hamdan's the CCW statute context power police conduct, we hold that State's must yield in this case to Hamdan's reasonable exercise security. keep and bear arms for right, own This when exercised within one's business supported by determination no factual and purpose motivated concealment of unlawful usually provide weapon, defense to will a constitutional charged violating person the CCW stat- who is with permitted this Because Hamdan was not assert ute. fully challenge was defense, his to the CCW statute not and conviction under the circuit court his addressed proper. was not Wis. Stat. 941.23
I. BACKGROUND FACTS operated Hamdan had owned and 7. Munir Capitol grocery liquor and store since 1987. open Foods days year family-run business, was store p.m., operated until from 9:00 a.m. 8:00 9:00 year. depending Hamdan's wife on the time of 15-year-old present son were in the store on the evening family just November 1999. The had *10 completed a meal in a back room that functions as a dining quarters family kitchen and for members who congregate p.m., and work at the store. It was after 8:00 night Thanksgiving, after when the officers came in. The front door of the store was not locked, but begun process Hamdan insisted that he had closing up.
¶ 8. jury This is the contextual information the permitted proffered was to hear. Most of Hamdan's evidence was not admitted. See 14. For in- infra jury stance, the was not told that Hamdan's store is high-crime neighborhood. located in a According to police Milwaukee data, there had been at least three aggravated homicides, 24 robberies, and 28 batteries reported year in the small census tract in- cluded Hamdan's store.3 There had been violent crimi- episodes nal immediately both inside and outside Hamdan's store. Between 1993 and 1999, the store was target of four armed robberies —three of which were shootings. successful—and the site of two fatal Hamdan claims that on one occasion an armed assailant held a gun actually pulled trigger. to his head and The weapon February misfired and Hamdan survived. In engaged struggle 1997 Hamdan in a with an armed attempting assailant who was to rob the store. In the course of attack, this Hamdan shot and killed the robber in self-defense. The other homicide at the store April occurred in 1998. Incidents of violent crime con- put To perspective, this in the 1990 census tract in which (Census 47) Hamdan's store is located Tract is one of 218 tracts city in the of Milwaukee. prosecu- after Hamdan's the store tinued in and around shootings including strik- that resulted in bullets tion, ing the store. general specific As a result of these family, safety himself, for his his
concerns property, security of his Hamdan customers, and for the kept handgun counter next to under the store's front jury register during not store hours. The was the cash possessing for of Hamdan's motivation told the basis handgun seized was the same that the this handgun from the to defend himself
Hamdan used jury February was told that Hamdan attacker. kept handgun in off from the a locked area closed public knew that Ham- law enforcement and that local gun protection. kept dan *11 only jury from State's
¶ 10. also learned the majority Gajevic, of the Bodo that "the witness, Officer type weapon area] [in on have the some store owners my experience." premises fact, In Officer on the based weapons Gajevic explained these he often checked that they properly. operating to see if were HISTORY
II. LITIGATION by days being officers, visited the ¶ 11. Six after attorney for an assistant district Hamdan met with County the incident. After this to discuss Milwaukee charged conference, he was with charge, weapon. to the filed a motion dismiss Hamdan challenging on the CCW statute enforcement of prior grounds. court He contended that constitutional "goes construing phrase broadly armed" decisions keep longer given and bear to are no valid I, Article Section 25 Wisconsin arms conferred argued prosecution un- that his Hamdan Constitution. impermissibly infringe der CCW statute would upon rights newly his under the enacted amendment. presumption Hamdan also contended that no of consti- tutionality should be accorded the CCWstatute because significantly predated it the constitutional amend- ment.4 parties After issue, had this briefed
circuit court denied Hamdan's motion. Milwaukee County Judge Circuit Robert Crawford concluded that against carrying weapons ban Wisconsin's overly infringement not an broad of Hamdan's state keep and bear arms. The court part legislature's that, reasoned police as inherent power, reasonably require it could that a store- openly display handgun by plac- owner instance, —for ing kept handgun it in a holster —if the storeowner for security place his at or her of business. preparation In trial, Hamdan and the competing regarding
State submitted motions in limine support the admission of evidence defense privilege. The State contended Hamdan be should prohibited introducing from evidence of crime statistics prior at store, robberies I, as well as Article arguing privilege, Section there is no as a (Wis. privilege law, matter under the statute Stat. 939.45) argued in these circumstances. Hamdan privilege allow such evidence. He theorized that *12 carry weapon privilege relating a concealed to —a property protection against defense of theft retail necessity grounded or to in the new amendment. —was 4 rejected argument This court regarding has this Cole, presumption constitutionality 112, in State v. 2003 WI 12-18, 520, 328, 264 Wis. 2d 665 N.W.2d ¶¶ which also today. decided
446 jury proposed modified in- also Hamdan submitted jury of these matters. for consideration struction motion court denied Hamdan's circuit there The court determined that to admit this evidence. allowing statutory privilege no under 939.45 is person go no matter armed with a concealed to reaching might person be. In threats to what the conclusion, the court denied that the Wisconsin this privilege supports any law common Constitution carry weapons in certain circumstances. As concealed jury and the final the evidence was excluded result, I, of Article Section contained no mention instructions history store, in and around Hamdan's of crimes any privilege. defense of jury July 11, 2000, on Hamdan After a trial weapon. guilty At was found clarify sentencing, the reach noted a need to court upon jury's gun remarked of state laws also violating guilty finding Hamdan consternation in ultimately The court fined the statute this case. sought appellate review, Hamdan Hamdan one dollar. granted petition bypass the court of his and we appeals. STANDARD
III. ISSUES PRESENTED AND OF REVIEW companion along case of case, with the 16. This opportunity today, represents Cole, our first decided "keep interpret and bear new Wisconsin's part of the Wiscon- I, Article Section 25 became arms."5 by I, this previously addressed Article Section was Gonzales, 59, 253 2d in State 2002 WI Wis. court case, ultimately However, as the sole issue in that N.W.2d 264. I, court, Section 25 was was Article decided this whether *13 provides on sin Constitution November 1998. It entirety: people keep its "The have and bear security, hunting, any defense, arms for recreation purpose." other lawful interpret provision
¶ 17. are We asked this challenge sweeping the context prohibition aof to Wisconsin's weapons. on the of concealed This prohibition is codified in Wis. Stat. 941.23 as follows: "Anyperson except peace goes officer who armed with dangerous weapon guilty a concealed and of a AClass misdemeanor." presents
¶ 18. Hamdan three related theories why his conviction under statute must CCW be argues adoption First, he reversed. that the I, of Article requires Section 25 a new construction of the CCW properly that, statute. He contends construed, longer statute no Second, reaches his conduct. he argues adoption that the I, Article Section 25 alters privilege gives privilege the defense of him a argues Third, defense on these facts. he that his con- impairs viction under the CCW statute constitutional rights protected by I, Article Section 25 and cannot All stand. three have theories at their core certain suppositions regarding the effect I, Article Sec- 25 on tion the CCW statute. first two theories claim adoption that prior of the amendment invalidates elements of interpreting
case law both the CCW statute and susceptibility its defenses common law statu- tory privilege. argument Hamdan's third is a constitu- alleged tional assault on statute on CCW based an need to reconcile statute with the keep and bear arms. 6, 1998, on effect November the date at when offense issue We was committed. determined that applicable it was not at Id., time. *14 questions present of ¶ law. These theories 19. interpreta- Interpretation of the state constitution questions of are law that this of a state statute tion analysis benefiting novo, from the of decides de court ¶ Gonzales, 59, 10, court. State v. 2002 WI the circuit 264. 253 Wis. 2d 645 N.W.2d STATUTORYINTERPRETATION IV carrying person of a concealed To convict a 20. § weapon 941.23, the of Stat. State in violation Wis. prove First, the State must show three elements. must peace person armed is not a officer went who that dangerous weapon. Dundon, 2d v. 226 Wis. State with (1999) (citing Asfoor, v. 780 State 654, 661, 594 N.W.2d (1977)). Second, 411, 433-34, 249 N.W.2d529 75 2dWis. aware of that the defendant was the State must show weapon. (citing presence Id. 75 Asfoor, of the Wis. the 433). weapon that the the State must show Third, 2d at (citing Mularkey State, 201 v. Wis. was concealed. Id. (1930)). years, every 76 Over 429, 432, 230 N.W. litigated. vigorously of the statute has been element a series court to withdraw Hamdan asks the 21. interpreting appellate element, the first of decisions statutory "goes phrase armed." based on the which is years, have defined courts For more than 70 Wisconsin "goes phrase to mean in the CCW statute armed" person weapon or that on defendant's "the was weapon defendant's have within the must been presence was aware reach and that the defendant (citing weapon." 2d at 433-34 of the 75 Wis. Asfoor, Fry, 432); Mularkey, v. at see also State 201 Wis. (1986); Wis JI— 153, 183-84, N.W.2d 565 2d Wis. Criminal leading interpreta-
¶ One
in the
cases
"goes
Keith,
tion
armed" element
State
(Ct.
1993).
App.
2d
Keith,
Wis.
after returning According from a drive-in theater. Id. to the brief, police State's she told that she had gun carried the in her purse during evening "you her out because know men how are." Thus, the underlying opinion facts not do make the Keith an ideal interpreting case vehicle for homeowner's possess a firearm. place exception person's
implied residence for a or "go did not armed" view, Under this Hamdan business. carrying weapon he never his because left own while his store. reject proposed We Hamdan's construction prior and continue to adhere to
of the CCW statute "goes language. interpretations While armed" "go" emphasizes that definitions the verb Hamdan point point act and the movement from discuss "go" "goes" departure, are more other definitions of prohibited. germane to the conduct intended to be equate going the act of armed with These definitions performing an action.7 To state or condition room illustrate, if come out of back Hamdan were deny wearing socks, he could not shoes without "going" he was barefoot. accept as a if we "locomotion" 25. Even were moving requirement, fail Hamdan's act of we to see how not an act of "locomotion" around his store would be understanding of the term.8 would under a common We finding certainly problem that a customer was have no "going moved around Hamdan's armed" if the customer pistol in his trousers. More store with problematic fact that Hamdan's "locomotion" is the theory application of the CCW statute could limit pursue "To "go" definitions of include We note the *16 course," condition," and "To continue in a certain certain "To be The activity." an be condition or continue certain (3d English Language 775 Dictionary The Heritage American of 1992). ed. 8 place moving as: "The act of from "Locomotion" is defined The place." ability place to move from place" "[t]he or Language 1056 Dictionary English Heritage American of 1992). (3d ed. 451 public weapon person areas where the or the was not moving. Hamdan contends otherwise. While con- cept requires place of locomotion movement from place, spatial it does not delineate what dimension is required "place." "place" being of a Hamdan defines as particular (namely, place structure home one's or business), suggests only and he that movement outside "going." of that is structure "locomotion"or the act of We support "goes find no this construction armed" in the text of the statute. Finally,
¶ 26. we note that at least one state with similarly prohibits person a CCW statute from "going exceptions armed" with a concealed has carry weapons for those who in their own place home or of business. Iowa See Code Ann. (West (4)(a) 1993). 724.4(1), §§ concept going If the precluded application armed of a CCW law while a person person's property, was in on own these exceptions superfluous. be would adopt
¶ 27. We decline to a new construction of the CCW statute based a on revised characterization of phrase "goes armed." We will not rewrite the CCW statute the troublesome manner Hamdan advo- cates.9
9 Interpreting "goes armed" language in the manner suggested by would, arguably, Hamdan avoid problems with the CCW statute opinion. discussed this Of course, it is a cardinal rule that interpreting courts should avoid way a statute in a that would render it unconstitutional when a interpretation reasonable legisla exists that would render the tion See Family constitutional. Am. Mut. Co. Dep't Ins. v. Wis. Revenue, (1998). 650, 667, However, Wis. 2d N.W.2d prerequisite of this rule possible the second inter pretation is do reasonable. We not find Hamdan's offered *17 During from time that Hamdan came engaged in conversation with the the police room and back going and officers, he armed with concealed was jury weapon. dangerous that Because concluded weapon's presence of the and that Hamdan was aware ordinary was hidden or concealed from that Hamdan violated CCW we conclude view, statute.
V DEFENSE OF PRIVILEGE
argument
con
is that his
29. Hamdan's second
(2),
§ 939.45(1),
privileged
duct was
under Wis. Stat.
(6).
holdings in
Hamdan maintains that this court's
Dundon,
654,
2d
¶ which privileges reference the of self-defense, defense oth- property, protection against ers, defense of and retail theft, Nollie, is not available to Hamdan.11 In we recognize privilege carry refused to a concealed weapon satisfying stringent requirements without statutory Nollie, self-defense.12 538, 249 Wis. 2d act, except prosecution first-degree that if the is for intentional
homicide, degree 2nd-degree of the crime is reduced to inten- tional homicide. only necessity Hamdan relies permitted on the defense under 939.45(1); § Stat. Wis. he does not advance a premised defense 939.45(1). coercion, on which recognized is also under 11These defenses are located within §§ Wis. Stat. 939.48 and 939.49. 12 Nollie, In alleged defendant that took a gun he out of car, it, the trunk of his put loaded it in his waistband when got he out of the change car to his dangerous tire neighborhood, because he was worried standing that four men might Nollie, on the try corner to rob him. State v. 2002 WI he held that the defendant's assertions 27. We neighborhood, high he was in crime was in a position changing he tire, his and that while vulnerable (four young potential were threat men was with a faced nearby, being profane) allegedly were insuffi- loud and specific threat imminent and an cient constitute privilege Nollie, 249 Wis. the self-defense statute. under 2d 23-25. argues in- that the concerns that 32. Hamdan carry
spired in his store him past experi- specific imminent, on his based were high in the incidence of crime with crime and the ences making privileged. neighborhood, Nol- actions thus his *19 general clear, however, that such assertions lie made it privilege. support we a As are defense insufficient self-defense "To an individual to claim stated, allow any- essentially allow such circumstances would under walking 'high neighborhood' to crime conceal one in a weapon eviscerate that. .. would situation —a making carrying legislature's intent weapon Id., ¶ a crime." 26.13 8,249 538, Nollie had been the victim 2d 638 N.W.2d280. Wis.
¶ including neighborhood, an armed in the of several crimes Id., 7. We physically assaulted. robbery ¶ in which he had been must of self-defense the defendant held that to sustain claim show that: (1) that there had actual and reasonable belief the defendant an with the unlawful interference an actual or imminent
was (2) the actual and reason- person; defendant had defendant's (3) necessary; and or use of force was belief that threat able actually only he such or force as used threat defendant necessary. reasonably believed was 939.48(1)). Id., § (citing Wis. Stat. 1, 1999, April occurred on The incident at issue Nollie Nollie, I, 249 Wis. 2d Section 25. after the enactment Article dangers facing ¶ 33. We have little doubt that the operating genuine. Hamdan while his store were How- specific ever, he did not face and imminent threats on night merely 26, 1999, of November because neighborhood high-crime his in a location of store past by activity. his victimization criminal The statu- tory elements of sections 939.48 and 939.49 contem- plate presence the actual interference, of an unlawful which was absent in this case.14 § Finally, 939.45(6), upon
¶ 34.
Hamdan relies
provides for
which
a defense when "the actor's conduct
by
privileged
statutory
or common law of this
privilege,
state." He asserts either a common
such
law
recognized
Coleman,
the one this
as
court
in State v.
(1996),15
199,
206 Wis. 2d
possession
firearm,
contrary
941.29(2),
Wis.
*20
to
Stat.
when
police discovered him
a
subsequent
with firearm
to a raid on his
Coleman,
199,
girlfriend's apartment.
204,
State
206 Wis. 2d
(1996).
pealed type privilege sought by the of exact Dundon. Id. recognized holding at It 671-72. is now application privilege Dundon forecloses of the Coleman Nollie, to CCW offenses. See 249 Wis. 2d 18. The adoption recognizing of a constitutional amendment right keep and bear arms does not affect the analysis. preceding soundness Notwithstanding ¶ 36. a the absence of common privilege, law Hamdan I, maintains that Article Section provides support "statutory" a basis law to a privilege. If we assumed that the Wisconsin Constitu- "statutory" privilege tion could serve as the basis § 939.45(6), under we would still conclude that spell scope constitution would have to out the privilege privilege nexus between the and the —the specific applicable. criminal conduct—to I, be Article recognizes right keep Section and bear arms generally, express privilege but it does not to exercise particular particular in a manner or circum- statutory stance. These are essential attributes of a privilege. I, Article Section 25 does not create "statu- tory" privilege to the crime weapon.
¶ 37. Under facts of this case and in the context of the statute, CCW we do not believe that modifying principles underlying privi- law lege, interpreted as codifiedin Wis. Stat. 939.45 and prior appropriate court, of this decisions is the method effectuating rights guaranteed under Wisconsin's keep and bear arms amendment.
VI. CONSTITUTIONALITY "ASAPPLIED" adoption ¶ 38. The I, of Article Section did not prior judicial interpretations affect of the CCW statute *22 availability privilege crimes, defenses CCW or the guaran- obligation protect rights an to it did create but by the amendment. teed regulate police power The State's broad to weapons ownership and of firearms and other
the use notwithstanding I, 25. None- continues, Article Section right the theless, broad declaration of the amendment's impacts keep inevitably the exercise of and bear arms to rights power. do not state, In this that constitutional power; they police power. expand police the the restrict Smith, 564, 2d 141 550, Buse 247 N.W.2d See v. 74 Wis. (1976); Knoop, & Janet A. State see also Robert Dowlut Right Keep Arms, 7 and Bear Constitutions The to (1982) (describing City 177, U. L. Rev 185 Okla. may principle). general application Thus, courts of this application CCW statute those limit the broad necessary to nar- is circumstances where limitation keep right rowly to the constitutional accommodate purposes.17 for lawful bear arms limitation is well estab nature this challenges, ap other states Faced with similar lished. plying in the context of a reasonableness standard police "[t]he regulating recognized that firearms have [ ] power it a manner that cannot be invoked in such right arms." bear amounts to destruction 1986) (Wyo. McAdams, 1236, P.2d v. 714 1237 State 17 (Ohio 1993) Cleveland, 163, 173 See Arnold 616 N.E.2d ("[There] right to bear arms to be some limitation on must time, while, orderly society at the same maintain an and safe as to allow for the right on the so moderating restrictions of hunt availability purposes firearms for practical of certain ing, protection."). use and recreational
459 added).18 (emphasis employed Some states have lan guage demanding assuring "destruction," less than that "regulations [on or restrictions a constitutional purposes] bear arms for defensive do not frustrate guarantees provision." City of the constitutional of (W 1988) Buckner, 139, Princeton v. 377 S.E.2d 145 Va. added);19 (emphasis Kessler, see also State v. 614 P.2d (Or. 1980) (stating regulations restricting (1882) State, Haile v. See also (holding Ark. may that the legislature regulate carrying any mode of arms the citizens have the keep and bear long manner, as, effect, as as it done "in a reasonable so not nullify right, materially exercise"); [sic] nor its embarass *23 Denver, (Colo. City County Trinen v. & 754, 53 P.2d 757 Ct. of 2002) ("A city not, App. may or police state in the name of power, enact legislation provisions nugatory.") that renders constitutional Blue, (Colo. (citing People v. People v. 1975)); P.2d 385 544 (Mich. 1931) Brown, 245, (holding 235 N.W police 246-47 that power regulate weapons "subject to is to the limitation its that reasonable, exercise be constitutionally and it cannot in result prohibition the of possession which, the of by those arms the opinion usage common and 'of law-abiding people, are proper legitimate and to be kept upon private premises for protec the State Wilforth, tion v. person property"); of 528, 74 Mo. 530 (Neb. Comeau, (1881); State v. 595, 1989); 448 N.W.2d State 598 (N.C. Dawson, v. 1968) 1, ("any 159 S.E.2d 11 statute rule, a construction of common-law which amount would to right destruction the bear to arms be would unconstitu (N.D. 1987) (state Ricehill, tional"); State 415 N.W.2d 483 protection right keep arms, constitution's of the to and bear while subject regulation not absolute and to reasonable under police power, the State's "prevents negation the of the right arms"). keep and bear The Buckner opinion also described the reasonableness any impairment right by stating bear arms that "the legitimate governmental purpose regulating right the to bear pursued arms be broadly cannot means that stifle the weapons carrying personal are possession or manner safety public frustrate the does not aim of "if the valid constitution"); Boyce, guarantees State v. of the state 1983) (Or. (holding App. that Ct. P.2d permissible right when arms is to bear on the limitation "do[es] public protect not the chosen to the means unreasonably right"). Case law re interfere with right for lawful arms to bear that while the veals police purposes absolute, neither is State's not an is constitutionally pro power this it eviscerates when right. tected an not establish I, Section 25 does 41. Article Clearly, right the State retains to bear arms.
unfettered weap- regulations impose power on reasonable including general prohibition on ons, may apply weapons. not However, the State functionally regulations disal- situations these rights I, under Article conferred exercise of the low the vigilant especially must be The State Section 25. person's need to exercise where circumstances applies pronounced. If State the most is unreasonably in circumstances laws reasonable keep arms, State's impair bear yield to the power circumstances police in those must right. prohibition of conduct that exercise of the *24 keep (possess) right indispensable or bear to to the purposes (carry) not be sustained. will lawful arms for enforcement ¶ that 42. Hamdan insists unreasonably case facts of his on the CCW statute rights. that, impaired He contends his can be governmental purpose right of this where exercise Buckner, 139, 146 S.E.2d State 377 narrowly achieved." more (W. 1988). Va. 461 technically prohibited even if the statute CCW his privileged, if conduct and even his conduct was not it apply was still unconstitutional the statute in the argues circumstances of his case. Hamdan that right provision guarantees, to bear arms a minimum, at right carry weapon on one's own property security business for defense or when there is compelling need State, to do so. The on the other hand, maintains that the I, addition of Article Section any, impact 25 little, has had if on the constitutional validity applying argues the CCW statute. It may possess weapon while Hamdan have the purposes security in his store for the lawful possess defense, he must continue to openly. ap 43. We assess the merits of Hamdan's "as
plied" challenge by considering the case, facts of his not hypothetical facts in other situations. See State v. Stevenson, 71, 12, 2000 WI 236 2d 86, Wis. 613 90; Janssen, N.W.2d State v. 362, 219 2d Wis. (1998). prosecuted N.W.2d 260 The State Hamdan for carrying handgun pocket, in his trousers in his own persons store, small at the did, time he and around the may he did. The issue is whether the State restrict the aof concealed firearm in these circumstances unreasonably infringing rights without Hamdan's un der I, Article Section 25. explained
¶ 44. As Cole, we when an exercise of police power implicates the State's the constitutional keep validity arms, and bear of the exercise is measured the reasonableness of the restriction on right. (citing Cole, asserted Wis. 2d Jeffrey Monks, The End Gun Control or Protection Against Tyranny Impact ?: The the New Wisconsin *25 Right Control Arms on State Gun to Bear Constitutional n.147). This same Laws, 249, Rev. 275 2001 Wis. L. guides judicial approach analytical of determination application particular rea- of an otherwise whether a right to bear arms is still on the restriction sonable constitutionally valid. analyzing reasonableness, one must bal In keep rights conflicting of an individual
ance the authority against purposes of for lawful bear arms protect police power to its the State to exercise safety, v. of its citizens. See Dano health, and welfare (Ariz. 1990); App. Collins, 1021, Ct. P.2d 1024 802 (Colo. 1975); People Blue, P.2d 390-91 v. 544 Rawlings Dep't 391 N.E.2d Enforcement, v. III. Lawof (Ill. 1979) sufficiency (balancing App. 758, 763 Ct. possessing arms with interest the individual's interest); City restricting legislation exercise of that (Wash. 1996); Montana, 1224 P.2d Seattle D. 148-49; see also Michael Buckner, S.E.2d at Right Impact Ridberg, State Constitutional Legisla Control Provisions on State Gun Bear Arms ("The (1970) scope tion, 185, 202-03 Chic. L. Rev. 38 U. provisions regulation permissible with arms states balancing public upon dependent of the benefit degree against regulation derived from the be purposes provision."). In it frustrates the which 1986), (Wyo. McAdams, P.2d 1236 State v. explained Wyoming Supreme need bal Court this ance as follows: the individual's be struck between balance must
[A] guarantee each constitutional to exercise some which will ensure society's right to enact laws necessarily interests will of order. As these semblance conflict, party which should question then becomes *26 accept right. the encroachment of its The solution to judicial the conflict is in nature. Courts must be and are, not, willingly whether the ultimate arbiters as to is, case, whether or not there in particular an unwar- constitutionally guaranteed ranted invasion of rights. agree Id. at 1237-38. We with this characterization of inquiry, including indispensable the constitutional determining role of courts whether enforcement of unreasonably impaired the CCWstatute has the consti- right. tutional police power,
¶ 46. Under its broad Wisconsin may regulate may regulate place, firearms. It time, possessed and manner in which firearms are and used. weapons The concealed statute is a restriction on the possessed manner in which firearms are and used. See Perez, State v. WI Wis. 2d 628 N.W.2d only public 820. It is constitutional. We hold that if the police power benefit in this exercise of the is substan- tially outweighed by an individual's need to conceal a weapon in the exercise of the to bear arms will an otherwise valid restriction on that be unconstitu- applied. tional as begin by examining
¶ 47. We the manner in which prohibits carrying weapons the State of concealed doing strong and whether its reasons so are in inspection context of Hamdan's conduct. This will re- comparative imposes veal the burden the CCW statute upon rights I, declared in Article Section 25.
¶ 48.
current
Wisconsin's
CCW statute is very-
essentially
liability
broad. It is
a strict
offense.20
legislature
any statutory
has not authorized
defenses or
(other
officers)
exceptions
peace
than
to the broad
prohibition
presently
found in the
As
statute.
con-
prohibits any person, except peace
strued, the statute
weapon, regardless
officer,from
including pursuit
circumstances,
of one of the
purposes
lawful
I,
enumerated Article Section
In
addition, the statute reaches unloaded firearms as well
939.22(10)
(defining
ones,
as loaded
see Wis. Stat.
"dangerous
statute),
weapon"
ap-
under the CCW
any
plies
reach,
within a individual's
see
*27
person
433-34,
2d
if
Asfoor, 75 Wis.
at
knows the
present.
§
appreci-
¶ 49. The
breadth
941.23 is better
by comparing
jurisdictions.
ated
it with the law in other
joined
In 1998 Wisconsin
43 other states that have
established a constitutional
to bear
How-
arms.21
20
rea element of the
mens
only
offense is that
See
State
weapon's presence.
defendant must he aware of the
Nollie,
4,
n.3,
538,
2002 WI
13
2d
249 Wis.
¶ 50. closer examination, however, there are few similarities between Wisconsin's CCW law and the CCW laws of these other five First, states. right only-
Kansas
to bear arms amendment is one of
right
provisions
two state
to bear arms
that has been
interpreted
right,
opposed
to confer a collective
as
to an
right,
individual
to bear arms.23 Under
an
such
inter-
pretation,
appear
there would
to be no constitutional
impediment
comprehensive
prohibition.
to a
CCW
In
"no-permit"
right
each of the other four
states with a
to
likely
bear arms amendment,24 Hamdan's conduct
"the
purpose
intent or avowed
injuring
a fellow man." Vt.
(1998).
13, §
Stat. Ann. tit.
4003
23Some
suggest
commentators
right
Kansas
to
provision
bear arms
was construed to confer an
right
individual
(Kan.
Mevis,
to bear
City
arms
Junction
would ample, Ohio, contains in the state's CCW statute broad including defenses, of business affirmative lawfully carry to and homeowners owners weapon in Rev. Code Ann. certain circumstances. Ohio (West 2923.12(C) 1997).25 § pro- are Similar defenses power, questioned; not be but this shall not of the civil shall Const, weapons."); I, wearing concealed Neb. art. justify the ("Allpersons by independent, nature free and have § are and rights; are . among inherent and inalienable these .. the certain self, security and for defense of keep hear arms or home, others, defense, family, and and for common lawful use, purposes, and all hunting, recreational other lawful and infringed by any shall or the state or rights such not be denied Const, ("The thereof."); I, people art. Ohio have subdivision security; right to bear for their defense and but arms armies, liberty, standing peace, dangerous in are and time of in kept up; military be and the shall be strict shall not power."). Only to the civil the Missouri constitu- subordination for provision expressly reserves the state the restriction tional carrying weapons. on provides: The Ohio statute (C) charge It an to a this section of affirmative defense under having weapon dangerous than or control of other ordnance, by prohibited actor was not law from otherwise
having weapon, any following apply: and (1) weapon ready kept The carried or at hand the actor for was purposes, going engaged was in defensive while actor or was occupation, or from the actor's business or which business or lawful occupation necessarily was or was carried on in such character place or or the actor such manner at such a time as to render attack, justify particularly susceptible to criminal such as would person going prudent armed. (2) ready kept by the actor was carried or at hand purposes, engaged actor in a defensive while the was lawful activity upon had attack reasonable cause fear a criminal family, upon the actor or a member of the actor's the actor's home, justify prudent person going such as armed. would (Illinois, Missouri, vided the other three states *30 Nebraska) carry presently do not have concealed permit laws.26
(3) kept weapon ready was carried at hand the actor or for any purpose in lawful and while the actor's own home. §2923.12(0 (West 1997) Rev. (emphasis Ohio Code Ann. added).
26 5/24-l(a)(4) (2000) Comp. See 720 Ill. (excepting Stat. persons in place "when on his land or his abode fixed own or prohibition any or "carr[ying] possess[ing] business" from or any vehicle concealed on or about . person. pistol, his . revolver, gun firearm"); stun or or taser other Mo. Rev. Stat. (West 1995) ("[State § weapon prohibition] 571.030.3 concealed not apply dwelling upon does when the actor ... is in his unit or premises possession, business over has which actor author 28-1202(2) (1995) ("It ity control,...."); § or Neb. Rev. Stat. shall an affirmative carrying weapon] [to be defense business, engaged any calling, that the defendant was lawful employment any or the time he or carrying weapon at she was weapons or person and the in which circumstances such was placed at justify prudent person the time were such as to carrying weapons the weapon or for the defense of his or her person, property, family."). exemptions
Numerous other specific states also have from prosecution carrying prohibition weapon under concealed See, on a person being premises. based on their own e.g., Cal. (West 790.25(3)(n) (2002) § 2000); Penal Fla. Stat. ch. (see (Fla. State, French v. App. 279 So.2d Dist. Ct. 790.25(3)(n) 1973), 790.01(2) applies which that ch. Fla. states Stat. ch. (Florida's statute)); CCW Ga. Code Ann. (West 16-11-126(c) 724.4(4)(a) (1999); 1993); § § Iowa Code 4-203(b)(6) (Michie Code, 2002); § Md. Ann. Crim. Law Mich. 624.714(9)(a) 2002); § Comp. (Supp. § Laws 750.227 Minn. Stat. 14-269(a1)(1) (2001). (2002); N.C. Stat. Gen. held, sure, be usually many years
To some state courts have ago, carrying that the applies offense State, their premises. even to those on own Dunston v. See legislature's result of our decision 51. As a any carrying weapons prohibit under of concealed between Wisconsin's circumstance,27 the interaction right to bear and the state constitution's CCW statute unique. appears no It anomalous, if not arms except perhaps completely Kansas, state, bans other weapons by in all all citizens of concealed simultaneously recognizing the while circumstances carry possess, firearms own, of individuals to provide purposes. Hence, other states these lawful particular guidance on the issue whether little may law, conduct, violated the CCW Hamdan's which constitutionally protected. still be *31 exceptionally ¶ 52. have described Wisconsin's We heightens the conflict restrictive scheme to how it show rights I, statute and the Article the CCW between whether and when this conflict Section 25. The issue is requires CCW us limit the outer reaches the to impairments statute, in on order to avoid unreasonable right to bear arms. underly- public 53. We turn now the benefits they ing apply in the CCW statute and how circum- explained Cole, As we stances this case. carrying prohibition of the of concealed Wisconsin's general weapons is, matter, a reasonable exercise as a police power, Cole, 520, 40, 264 Wis. 2d serves safety. purposes promoting public many valuable (Ala. Puckett, 1900); v. S.W.2d 333, 125 So. 334 Commonwealth (Ohio 663, 1939); Nieto, 1011, (Ky. v. 130 1012 State N.E. 665 dissent). 1920)(over vigorous 27 require permitting of over decision whether carry any weapons in circumstance those who wish to concealed fully legislature. remains with
470 Walls, In 65, State v. 2d 190 Wis. 526 N.W.2d (Ct. App. 1994), appeals 765 the court of described inspiration for laws as CCW follows: statutes, said,
The reason these it has been is persons becoming suddenly angered "because and hav- ing weapon in their pocket, likely such would be it, they use which in their sober moments would not done, have and which could not done not have been had weapon person." been their upon (quoting Commonwealth, Id. at 71 from Williams v. 261 1953), (Ky. S.W.2d 807-08 with citations in Will omitted). short, iams In
permits person violently impulse, to act on whether anger may prospect or fear, from and that is a the law discourage. prohibiting
¶ 55. Another rationale for weapons put people they is to on notice when are dealing carrying dangerous an with individual who is weapon. presence dangerous weapon Notice of a permits including people, officers, law enforcement (Ga. accordingly. State, act See Ross 566 S.E.2d (Md. 2002); App. State, Anderson v. A.2d 963, (2001). 1992); Weapons objective 94 C.J.S. This perhaps significant inspiration the most for CCW laws. weapons A concern related is that concealed facilitate by creating appearance the commission of crime *32 normality catching people guard. off
¶ 56. One rationale for the additional statute was recognized many years ago when court this stated promote preservation by affixing life, of CCW laws "the stigma him a law of land to who carries pistol, except unloaded, concealed loaded or in the cases Mularkey, allowed 201 431 statute." Wis. at (Miss. (quoting Bollis, 99, from State v. 19 So. 100 1895)). insightful a that one words are reminder These criminalizing stigmatize purposes is to of conduct of socially malfeasant behavior. particularly of is com- None these rationales owning applied person operating
pelling a when Although shopkeeper is immune a not a small store. impulse, likely acting he or she is less to do so from on safety setting in and satisfaction in a familiar which liability paramount and is for mistake of customers nearly in circum- There is less need these is certain. innocent customers or visitors to be notified stances for weapon. possesses of a the owner a business including Anyone premises, a enters a business who presume person intent, criminal should that the with possesses weapon weapon, if the is not owner even likely shopkeeper not to use a concealed visible.28A is weapon own facilitate own crime of violence his his stigma inapplicable the law when the store. The is possess weapon public expects shopkeeper security. recently observed, one "the crimi- 58. As court
nality mitigated places gun possession is the two likely law-abiding person is where an otherwise greatest spend of his time and to deserve the most expectation personal security: his home and his workplace." People Buckmire, 638 N.Y.S.2d v. 1995).
(N.Y. agree. Sup. Ct. We carry prohibi- purposes of a 59. The settings compelling tion are person less in which the often bearing an the concealed owner Although goes property he she armed. on which 28 Beard, (1895) States, 158 U.S. United Cf. person "[i]s is attacked entitled to stand (concluding that who deadly him ground, any upon and meet attack made with a his weapon").
considerations discussed above are not determinative of prohibiting shopkeeper the reasonableness of a from weapon, they weigh against a concealed applying need for in CCW statute such circum- shopkeeper if stances had a in substantial interest exercising right I, a under Article Section 25. application
¶ 60. Strict in CCW statute public enforcing instances when the in interest may unreasonably impair person's statute is weak a right keep person's and bear arms when the interest exercising right through in weapon the use of a concealed primary
is substantial. Our concern is examin- ing prohibition in a CCW circumstance in which the bearing purpose security of arms for the is the most necessary. and the reasonable most many ¶ 61. As above, alluded to states rec have ognized, special statute, either law case or inter right protec section between the to bear arms and the property. example, tion of one's own For one state court enjoys right has held that a citizen a common law carry weapon in the citizen's own home. See (Okla. 2001). App. State, 937, Gilio v. 33 P.3d Civ. recognized Other courts have either a to conceal (as weapons opposed "carry" in one's own residence premises), concealed Colby one's own see In re (Md. 2001), App. H., A.2d 646-50 Ct. or general right keep weapons see, a more home, one's (Ind. 1958) e.g., State, Matthews v. 148 N.E.2d (holding provisions against carrying of a state law pistol prohibit of a without license "donot restrict nor any appellant person having pistol other from place 'fixed his home or of business' for the defense of himself..."). Supreme stated, As the Ohio Court "The property family self, of defense of is a funda part liberty. concept mental ordered . . . For our *34 many, possession in home of a firearm the mere security." Cleveland, 616 Arnold v. a of offers source 1993). (Ohio 163, 169-70 N.E.2d (Or. App. Stevens, P.2d 318 In State determining 1992), Oregon Appeals, in Court of carrying a for could not be convicted that the defendant home, held that his own switchblade within concealed only carrying applies to the the state's CCW statute weapons home. Id. at 319. outside one's own concealed despite decision the absence The court reached this any Oregon's exception express to this CCW statute (2001), despite § 166.240 effect, See Or. Rev. Stat. may apply system persons Oregon's permit under which § carry weapon, Stat. 166.291 see Or. Rev. to concealed (2001). explained rationales for this The court two conclusion: carrying a switch-
First,
simple
act of
concealed
type
not the
of unre-
one's own home is
blade within
a clear threat" to
rights-exercising
"poses
strained
regulated.
safety and that can therefore be
public
Second,
interpretation would restrict
the state's
carry legal weapon
from
manner in which one could
an
one's home and would inhibit
room to room within
ownership and self-defense
act
intrinsic to
that is so
unreasonably
the exercise
it
interfere with
that would
possess
to
switchblade.
of one's
(citation omitted). Excepting
Stevens,
[T]he weapon except or the upon premises one's own or at place [is] his of business persons to allow they those areas which defend interest, possessory yet carry have a restrict the weapons persons position they such a are not likely public to be thrown into contact with the perhaps tempted, quarrel, thus in a sudden use weapon to the detriment of another.
Ruby Scope Excep- Weeks, B. Annotation, and Effect of Forbidding Carrying Weapons, tion, in Statute as to *35 of Person on Own at His Premises or His Place Busi- of 2(a) (1974) added). (emphasis ness, 57 A.L.R. 3d following analysis We also note the of the reasonable- place ness of and manner restrictions on the use of prohibitions firearms, such as on weapons: might argued impede pur- be that laws
[I]t these the pose they deny right if of self-defense an individual the carry weapon likely he to when is most to be attacked. argument This countered two the is considerations: danger weapons in widespread presence public of of places police protection against and attack in these Thus, in the be from places. view of benefit to derived laws, place regulations these and manner which do not possession restrict in homes or businesses do not seem unduly purpose. the to subvert self-defense added). Ridberg, supra, (emphasis at 204 importance being to the 64. The of able exercise setting property in of one's bear arms own implied by language I, 25. The of Article Section purposes for amendment enumerates several lawful 475 arms.29 Al- can exercise the to bear which one arguably though Hamdan's could be construed conduct generally examines three sources determin This court meaning: plain meaning "the ing provision's a constitutional used; the constitutional debates the words the context writing of at the time of the practices existence constitution; provision by interpretation and the earliest following passed in the first law legislature as manifested 674, 680, Craney, 2d adoption." Thompson See 199 Wis. (1996). N.W.2d plain language on the of the term We focus our attention "security" particularly the last two factors are not because ascertaining meaning the intended of the term helpful to "security." presently interpretation relevant There is no I, provided by legislature. been Article Section 25 has contemporaneous passage with the of the As to the debates amendment, very meaning little discussion as to the there is source, fact, according "security." legislative In to one the term "[ujnless freely there is further clarifica it was admitted Constitution, be com language tion in the courts will 'security.1" pelled interpret the term Memorandum from Council, Hass, Attorney, Legis. entitled Shaun Senior Staff Wis. Analysis Assembly Joint Resolution 53 and 1995 Senate of1995 Arms Reldting Right Keep Joint Resolution to the Bear Consideration) (First Representative State David Wisconsin (Oct. (herein 11, 1995), Legislators at Travis and Interested Memo). after the LCS Legislative Both the 1995 Council Staff memo and Legislative Reference Bureau Drafter's Note to the resolution *36 meaning that the amendment recommended that the of became language in the amend- "security" be clarified with additional ment, included. 1995 LCS but no such clarification was See Memo, 7; Bureau, Legis. at Wis. Reference Drafter's Note 2, reprinted Legis. Joint Res. at in Wis. 1995 Assemb. Bureau, Drafting J. Res. 53. Reference Record 1995 Assemb. "security" "security that could mean The LCS memo noted general security home or state" or it could refer to the of one's Memo, at 7. The authors of these docu- business. 1995 LCS
476 purpose "defense," of we think the for the as undertaken logically point purpose of to the "secu- circumstances rity." "security" by not defined The term is 65. meaning given any specific else-
amendment, it nor is legal defini- law. The relevant where under Wisconsin being esp. "[t]he "security" secure, of of is state tion Dictionary danger or attack." Black's Law from (7th 1999). "security" applicable definitions of ed. The lay enlightening. in- definitions dictionaries are Some safety. danger, etc.; ... 3. risk, from clude: "1. freedom something protection; de- safe; or makes that secures guard against precautions crime, taken to fense. ... 5. sabotage, espionage, Random House Un- attack, etc." 1993).30 (2d Security abridged Dictionary ed. safety, "Something gives or assures also defined as by adopted, a business or home- as: .. . c. Measures as assault[.]" burglary prevent owner, a crime such as Dictionary English Heritage The Lan- The American of added). (3d 1992) (emphasis guage 1632 ed. "security" understanding The common implicate Rather, threat. it an imminent does not persistent peace. We believe state connotes closely persistent state with a domain most associated "security" regarding what to reach a conclusion ments failed meaning would have to be means, stating both with Monks, End Gun judiciary. Jeffrey The decided See the New Tyranny?: Impact Against or Protection Control Arms on State Gun Right to Bear Wisconsin Constitutional Laws, L. 271-72 n.140. Control 2001 Wis. Rev. not as "1. free from or Similarly, "secure" is defined affording safety, as a harm; danger or safe. ... exposed to (2d ed. Dictionary 1731 Unabridged Random House
placet.]" 1993). *37 peace residence, home is one's or followed other
places person possessory in a A which has interest. likely rely person public is less on law enforcement protection premises likely for in these and is more supply protection. person In fact, his own who takes provide security private places no initiative to in these essentially leaving security to chance. Firearms own- ership long permitted has been in Wisconsin. We infer right that the inclusion in the amendment of to bear security personal arms for "to was intended include right protect family, person, to bear arms to one's property against injury unlawful and to secure from interruption enjoyment unlawful life, limb, fam- ily, property," Knoop, supra, and & Dowlut at subject regulation. to reasonable foregoing considerations, on the Based we conclude that a citizen's desire to exercise the keep security purposes and bear arms is at its apex pri- undertaken when to secure one's home or vately Conversely, owned business.31 the State's inter- today recognizes Our decision that the reasonableness of enforcing general gun regulations uniquely suspect becomes in I, settings, certain but Article Section 25 does not transform right. to bear arms these locations into an absolute ability regulate gun use, The State retains the ownership, possession, transportation respect firearms even with See, occurring place e.g., matters one's home or of business. (Alaska 1997) State, Gibson v. 930 P.2d App. Ct. (rejecting as-applied challenge defendants' to the constitution ality possessing impaired of their convictions for a firearm while by intoxicating liquor, stating "[p]eople who handle fire intoxicated, homes, arms while pose even in their own significant safety family threat to the health and of their themselves."). members, neighbors their weapons compelling prohibiting is least *38 est application of the CCW circumstances, because in these of the a tenuous relation to alleviation" "has but statute acknowledged interests. Moore v. East Cleve- State's (1977) (Powell, plurality J., land, 494, 500 431 U.S. recently by Hampshire opinion). the As stated New right private Supreme of a is Court, "If the restriction only public oppressive, enhanced while the welfare is offending slight degree, [to a] an statute is void as Kennedy police power." v. Town invalid exercise (N.H. 2001) (internal Sunapee, 784 A.2d omitted). quotations statute, that the CCW We believe by application case, the facts of this of its under virtue infirmity. suffers from this right keep
¶ and If to bear 68. anything, security must, it as a is to mean arms for possess, carry, permit person general matter, to security of his arms to maintain the sometimes conceal privately operated private business, and residence or premises. safely weapons within these move and store public weighing ¶ interest In addition to 69. against enforcing an individual's statute CCW by exercising right keep arms and bear interest in weapon, a court assess must right exercised the an individual could have whether violate manner that did not reasonable, alternative the statute. inquiry in Brandmiller v. faced a 70. We similar (1996).
Arreola,
199 Wis. 2d
544 N.W.2d
scrutiny
applied"
Applying
to an "as
con-
intermediate
challenge,
that, under this level
we stated
stitutional
scrutiny,
or ordinances
the test for whether statutes
right
is
are constitutional
that restrict a fundamental
they
"open ample
whether
leave
alternative channels
may
right.
which the citizen
the affected
exercise"
Id. at
In
circumstances where the State's interest
restricting
right
keep
and bear arms is
private
exercising
right
minimal
interest in
way
substantial,
an individual needs a
to exercise the
violating
hold,
without
the law. We
in these
regulations limiting
circumstances,
a constitu-
keep
tional
and bear arms must leave some
right.
realistic alternative means to exercise the
keep
instance,
72. For
in order to
and bear arms
*39
purpose
securing
property,
for the
of
one's own
a
weapon
kept
may
must be
somewhere
need to be
weapon
prop-
moved,
handled or
all within the
owner's
erty. During
times,
these
the firearm will be either
argues
or concealed. The
visible
State
that even under
person
the strictest enforcement of the
statute,
CCW
a
lawfully possession
always
in
of a firearm will
retain the
ability
keep
open holding
to
the firearm in the
the
—
weapon
open, keeping
weapon
in the
the
in a visible
displaying
weapon
holster,
wall,32
on the
or other-
32
Mata,
to State v.
points
315,
The State
199 Wis. 2d
(Ct.
1996),
App.
authority
N.W.2d 578
proposition
as
for the
that
may
there
be
requiring
some effectiveness
to
storeowners
to
Mata,
openly
they
display handguns
possess.
In
two tavern
charged
carrying
weapon
owners were
with
under
Mata,
appeals
CCW statute.
who desires 941.237(3)(d). lawfully Id. at 321. The court answered under by a argument requirement that this is absurd the defendants' handgun may deter counterargument openly displaying n crime, probably would not. Id. while concealment I, analysis in Mata is this light In of Article Section predates adoption suspect. incomplete It because it and, amendment right to bear arms Wisconsin's constitutional therefore, statute with the attempt did not to reconcile the CCW security. to bear arms for tavern owner's constitutional relied on in Mata take on countervailing policy arguments believe, provision. of this We gloss a different in the shadow body opinion, of this that the Mata expressed the reasons the reasonableness incorrect in its opinion is now assessment requiring open display guns. selectively recounts the circumstances sur The State minimize his interests rounding Hamdan's CCW conviction to *40 security According to the providing in to his store. State] pocket in a retail establishment pistol "Hamdan carried a in his spoke to do so while he public to the and continued accessible inspecting were his store. police with the officers who sufficiently great law is enforcing interest the CCW State's requirement that Hamdan that the under these circumstances limitation on a modest and reasonable carry gun openly his is arms, the right [] one that survives reasonableness his to bear .. . ." standard
carry gun openly simply a holster is not practices Such would alert criminals reasonable. presence to frighten weapon friends and cus- requiring gun Likewise, tomers. handgun owner to leave a plain in his or her that he or view store so charge she avoids a fails the litmus test of CCW necessary spell common sense. We do not think it is to dangers by making out the created firearms more strangers, children, assailants, accessible to to to and to guests. leaving open fact, In a firearm in the could expose gun liability, owner to other both criminal and §§ (prohibiting leaving See Stat. 948.55 civil. Wis. easy a loaded firearm within the reach or access of a child) conduct). (prohibiting disorderly and 947.01 dispute There is no that most storeowners right possess practical have the to a firearm. aAs keeps security matter, the storeowner who a firearm for easy gun Requiring must have the within reach. openly display weapons only storeowner to as the exercising right keep available means of to and bear security impractical, unsettling, possi- arms for is bly dangerous. prosecutes If the State a storeowner for having easy reach, within it is strongly discouraging security use firearms for practically nullifying and is to do so. Such prosecution very likely impair the constitutional security.34 bear arms in all dissent, that, In her the Chief Justice concludes instances, "right impaired by bear not requiring arms 'is carry Dissent, weapons openly.'" (quoting individuals (Ariz. Collins, 1990)). Dano v. App. 802 E2d 1022-23 Ct. conclusion, reaching questions In opinion's this she this "views Dissent, psychology." about human 127-129. The dissent also implicitly, explicitly, concludes if not enforcement no *41 requiring the con- Overall, we believe that open carrying of a firearm in one's business tinuous, effectively I, Article Section 25 eviscerate would consequences. the view of the Under lead to undesirable either must Justice, a storeowner and the Chief State right for his to use arms the exercise of sacrifice security put at risk himself and others or must displaying weapon. openly a constitutional There a final element to is
challenge application Article statute. of an CCW keep expressly and bear limits the I, Section 25 purposes." not Therefore, a defendant is "lawful arms to to a CCW a constitutional defense entitled to assert charge weapon an a concealed for if he or she carried Carrying weapon purpose.35 for an unlawful purpose, if a defendant were able even unlawful satisfy for an unreasonable restric- the two other tests protected by amendment. tion, not is carried a concealed a defendant 77. Whether purpose question weapon fact, as is a for an unlawful competing may mind for which involve a state of it necessary. requires inquiry a determi- This evidence is written, unreasonably infringe statute, presently as will CCW keep and bear broadly upon a worded arms. technically for a statute, it unlawful
Under CCW nightstand within reach in a homeowner to conceal in this simply not enforced bed. The law is the homeowner's many situation, places not enforced in when just as it is register. weapon near a cash storekeeper conceals a 2002) (Wash. Schelin, 55 P.3d 632, 639 State v. Cf. firearms constitutionally protected right to bear (holding that bearing is to firearms purpose ceases when the in his home crime). of a further the commission purpose nation of the individual's *42 weapon. inquiry, carrying concealed In this weapon purpose for an unlawful means weapon concealed in furtherance of the commission of a crime.
¶ 78. To overcome a constitutional defense that . approved by has court, been the State has the alleging specific that a burden of defendant had a purpose presenting criminal and of evidence that the weapon carried the defendant concealed for that unlaw- purpose. alleged ful If the court determines that the intent is criminal in nature and if the State meets its producing burden of. evidence sufficient to raise the of that then intent, issue the court will instruct the trier particular purpose of fact to determine if the unlawful actually was held the defendant while he or she weapon. carried the concealed If the trier of fact deter- allegation true, mines such an precluded be defendant will be successfully availing from himself or herself any challenge to a CCW conviction. If unconstitutionality otherwise, it determines enforcing then the against statute CCW the defendant re- regarding mains, and no further verdict the elements of the CCW offense need be answered.36
36If a court determines as a matter of law that an "as (even applied" challenge would fail assuming that a defendant carry did not weapon purpose), for an unlawful then there is question no need to submit to the trier of fact a on the purpose. purpose defendant's unlawful aWhile lawful is a necessary predicate challenges, for these it is not a sufficient condition.
Chief Justice Abrahamson's dissent confuses the role of the inquiry dissent, an purpose. into unlawful See 134-137 & course, accompanying footnotes. Of there will be instances APPLICATION OF PRINCIPLES VII. principles Having involved examined challenge prosecution applied" of a to the CCW
an "as principles apply Hamdan's violation, we now those proved acknowledge all three that the State case. We Hamdan armed statute. went elements of the CCW gun dangerous weapon he carried a his when with presence pocket. He was aware trousers weapon. pocket and not was his
Because concealed. visible, it was determining circum- whether, under the In for the case, it unreasonable State of this was
stances by punishing *43 impair him to arms Hamdan's bear weapon, legal carrying we reach two a concealed for conclusions.37 First, circumstances, the Hamdan's under maintaining in his in
interests multiple purposes carrying for a con- a defendant has when dispositive is whether the defendant weapon. The issue cealed he or she had purpose, irrespective of whether had an unlawful felon who example, a convicted purpose. a concurrent lawful For not, security acting is in for his weapon, carries a of a may a not avail himself constitu- furtherance of crime and tional defense. and Justice Crooks' Both the dissent concurrence/dissent the merits of a constitutional it odd that we assess consider However, this legal one of fact. challenge question, as a versus determining developed whether previously has tests court otherwise-valid statute a under an prosecution of defendant upon constitutionally protected a infringes impermissibility Miller, 2d 549 N.W.2d 202 Wis. right. example, For State challenge statutory (1996), to applied an as we addressed triangular, slow- orange display to a red requirement by used mem buggies moving emblem on horse-drawn vehicle Amish. We stated: of the Old Order bers personally during unexpected store and it an substantially outweighed encounter with visitors the enforcing weapons State's interest the concealed statute. apply compelling We will state restrictive interest/least alternative test our review of claim this that Wis. Stat. 347.246(1), applied eight respondents, as to the Amish violates I, § freedom of exercise and freedom of conscience under Art. 18 of stated, Succinctly analysis, the Wisconsin Constitution. under this (1) challenger prove: carries the burden to that he or she has (2) religious sincerely belief, by application held that is burdened Upon proof, law state at issue. such burden shifts (3) prove: compelling State to on law based state (4) interest, by which be cannot served a less restrictive alterna- tive.
Id. at 66. The court treated these as to be matters determined sure, challenges the court. To be state constitutional right to keep and bear arms amendment involve a "reasonable restriction" test scrutiny, and not strict they but are still challenges based right. on constitutional
Furthermore, indicated, legal as Miller itself the second adopt element the test that we issue whether some —the reasonable alternative exercising means for exists—is Arreola, a legal question. In Brandmiller v. 199 Wis. 2d (1996), N.W.2d 894 this court a cruising asked whether ordi ample nance left open exercising alternative channels for travel) right at (right issue and framed legal this issue as a (this court) question it resolved. opines that, by The Chief Justice also addressing Hamdan's *44 challenge primarily legal constitutional as a question, we "turn precedent court, our on permitting its head" "a jury, not the to reach substantive conclusions about the merits aof Dissent, defendant's constitutional defense. . . ." 135. The cases that the Chief support position Justice offers to this deal with First Amendment obscenity issues of and "true threats." Dissent, cases, In obscenity 133-34. the ¶¶ courts define the legal parameters "obscenity," of and therefore the constitutional
486 right keep and the 82. Hamdan exercised in which the need arms circumstances under bear grocery right He owned a substantial. exercise this was neighborhood high had and his store in a crime store past homicides. Hamdan robberies and been the site a crime victim at the store. Hamdan had been himself only family also for his for himself but had concerns not good anticipate future customers. He had reason provide problems need to his at the store and a crime Acting problems. security the on this to deal with own handgun kept the near need, under counter Hamdan safely weapon register the the when stored the cash but transport weapon Hamdan's business was closed. night question pocket incidental to on was in his handling storage of the firearm safe his normal prohibit- interests in Meanwhile, the State's his store. ing in his Hamdan from night the on the store, under the circumstances small California, 413 Miller v. speech. to free See limits of (1973). In of Wisconsin's constitutional the context U.S. standard, community arms, is not whether to bear issue interest," prerequisite is met as "prurient such as Rather, only "obscenity." issue is the reasonableness finding Furthermore, regards to our with right. a restriction on the concluded, cases, has without submit- this court "true threat" statement jury, that a defendant's ting determination to A.S., as a matter of law. State a "true threat" constituted 173, 23-25, 243 Wis. 2d 626 N.W.2d ¶¶ WI concurrence, correctly notes in his Justice Bablitch As by the Justice determined court." facts are "constitutional Dixon, concurrence, 96; 177 Wis. also State v. see Bablitch's (1993) (stating Fourth 466-67, in the 2d 501 N.W.2d to an give the facts rise "[w]hether context that Amendment space privacy in expectation of individual's reasonable question is a subject the search area which was independently"). law we review which *45 police negligible. store, visited officers his were police target knew that Hamdan's store a crime was and kept weapon protection. that Hamdan for There is no prone irresponsibly evidence that Hamdan was to act or impulsively, unlikely and he was do so his own Therefore, store. enforcement of the CCW statute on seriously these facts would frustrate constitutional right keep security and bear arms for but advance no public discernible interest. Second, Hamdan had no reasonable means keeping handling weapon except and in his store
to conceal it. business, In the normal course of Hamdan weapon concealed the in an area that was accessible to public. him but inaccessible to the It would have been dangerous counterproductive openly display and weapon during requiring hours, business him to do seriously impaired so would have his to bear arms security. unexpectedly When Hamdan was sum- moned to come to the front of the store at a time when closing up night, option he was for the he had the putting handgun pocket leaving in his handgun knowing in the back room without who had security come into the store and whether his was Carrying handgun openly threatened. when he went back into the store would have shocked his seriously safety, visitors, threatened his not was option. reasonable pre- 84. Because we determine that Hamdan
vails on issues, both of these we conclude that he had keep and bear arms for the purpose security lawful at the time he carried his weapon, concealed that his conviction for unconstitutional, was and his convic- present tion must be reversed. He was never allowed to this defense. remand We the case to the circuit court for *46 opinion. proceedings this The consistent with further can the State show be dismissed unless case should probable purpose an cause that Hamdan had unlawful weapon. carrying the concealed Hamdan he was when exercising right constitutional that he was his asserted only purposes and, time, for lawful at this to bear arms any Hamdan had unlawful is no evidence that there purpose such an intent. nor has the State asserted VIII. COMMENTARY right approval ¶ The a state constitutional security, hunting, keep defense, arms for to and bear any present purpose will recreation, and other lawful continuing enforcement until the dilemma for law urge legisla- clarify legislature the law. We the acts to § thoughtfully in the examine Stat. 941.23 ture to Wis. possibility to the the amendment and consider wake of system persons licensing permit have a for who aof carry weapon. happily good We reason to a concealed legislature able than this concede better public policy other firearms and court to determine on weapons.38 give effect to the meantime, In the we must right I, 25.39 in Article Section embodied grounds challenges on constitutional
A defendant who uncon Wis. Stat. 941.23 Justice Crooks would declare ruling permit to date of the delay but the effective stitutional statute. Justice to make alterations in CCW legislature concurrence/dissent, suggestion is not 110. This Crooks' tenable. and Justice Crooks' Contrary to assertions in the dissent concurrence/dissent, into the CCW exceptions read we have not 115; dissent, Crooks' See Justice statute. eoncurrence/dis- 101, 107, IV and V of sent, explained in Parts 113. As ¶¶ carrying prosecution bewill required following to secure to the answers affirmative legal questions he before or she is entitled raise a to First, circumstances, constitutional defense. under concealing weapon did the defendant's interest in keep facilitate exercise his or her and bear substantially outweigh arms State's interest enforcing weapons the concealed statute? State generally significant prohibiting has interest weapons. satisfy Thus, this exercising element, the defendant have been must keep and bear arms under circumstances *47 which Second, the need to do so was substantial. did the weapon defendant conceal his or her because conceal- only ment was the reasonable means under the circum- right stances to exercise or his her to bear arms? Put differently, did the lack defendant a reasonable alterna- to concealment, tive circumstances, under the to exer- cise his or her constitutional to bear arms? The possible by invocation of this defense be must raised trial, motion of the defendant before and resolution of legal questions by prior these must be made court questions trial. Affirmative answers to these will re- quire a court to conclude that the State's enforcement of the CCW statute an constituted unreasonable and impairment keep unconstitutional granted bear arms as I, Article Section 25 of the Wisconsin Constitution. opinion,
this interpretation of the CCW statute and the statutory relation to privilege defenses statute's remain un- changed by adoption I, analysis Article Section 25. Our merely parameters has fleshed out of the I, rights in Article Section 25 and has articulated the constitu- protects rights.
tional defense that those purpose relevant The of unlawful is 87. issue approves only a constitutional defense. the court when court-approved constitu- State can overcome The proves only trial, at asserts, if and then defense it tional purpose at the time an unlawful that the defendant had weapon. Whether the he she carried the purpose, an defined as had an unlawful defendant weapon of the commis- in furtherance intent use question question of fact. crime, of a is a sion along trier of fact with submitted to the should be separate, carry- crime of on the traditional instructions weapon. ing a concealed jury did not If a answers that the defendant 88. specifically alleged purpose unlawful
intend the questions posed reach the it not need to State, then will jury as the CCW offense in the instructions constitutionally protected. conduct remains defendant's any purpose proven, then the defendant If unlawful carrying guilty a concealed be found can beyond upon proof the elements doubt of a reasonable weapon. See Wis of the crime JI —Criminal guid- provide principles some These should legislature until the and the courts
ance counsel *48 action. takes further judgment
By is circuit court the Court.—The the cause is remanded. reversed and (concur- BABLITCH, A. J. 90. WILLIAM only majority opinion ring). join and write I the Abrahamson's dissent. Chief Justice answer dissent would Justice Abrahamson's 91. Chief notwithstanding guilty, Mr. Ham- that Mr. Hamdan find gun pocket night, dan carried his at in his own high neighborhood, store, in a located crime which had subject past been the robberies and homicides, and subject attempted had himself an been murder disagree the store. I could not more. attempt
¶ 92. dissent, The Chief Justice's its Carrying Weapon save statute, a Concealed eviscer- ates the constitutional amendment. It renders by reading constitutional amendment a sham into it the logical words "unless concealed." The inevitable and interpretation result of that is to create absurdities legislature neither the nor the voters could have in- tended. interpretation,
¶ 93. Based on the Chief Justice's gun top your night it is lawful to have a on table or gun bureau, drawer; but not in a it is lawful to have a guns , case in the home if the can inside be seen, but guns unlawful if the are behind solid door and cannot respect, just be seen. all due With doesn't make sense. majority absolutely correct in con-
cluding that this could not have been the result in- by legislators tended who wrote the constitutional amendment nor the voters who ratified it. The dissent by Crooks, Justice who would find the statute uncon- by implication quite obviously agrees stitutional, this could not have been the intent behind consti- tutional amendment. very
¶ 95. The difficult task confronted majority newly towas conform the statute to the possible. enacted amendment, if It is presumed well-established that statutes are constitu responsibility preserve tional; thus, our first is to possible. if McManus, statute State 2dWis. (1989). major- 129, 447 N.W.2d654 I conclude that the *49 exceedingly accomplishing ity task, did well join majority. why I by majority ¶ out for 96. The framework set deciding very these courts follow the circuit fact-specific not at all unlike the framework cases is deciding 4th have used for decades these courts very cases, which are themselves fact- Amendment specific. cases, court is con In 4th Amendment facts and constitutional facts. fronted with historical in con facts, i.e., whether the facts are Constitutional formity demands, are deter the constitutional with by applying the constitu historical facts to mined by question of determined the court. tion, which is a law Jennings, ¶ 20, 2d 252 Wis. 2002 WI State So 142. The is "reasonableness." 647 N.W.2d touchstone by the facts are determined too here. constitutional applying court, facts to the constitutional the historical touchstone. amendment, and "reasonableness" is the respectfully disagree Accordingly, Chief I with the join majority. Justice's dissent (concur- J. BRADLEY, WALSH 97. ANN agree majority ring). con- that Hamdan's I with the carrying was unconsti- viction for Majority be reversed. and his conviction must tutional join majority's op., I However, not discus- do regarding procedural aspects in Part sion VIII challenges prosecutions constitutional future weapon. id., ¶¶ See 85-88. procedural I am not convinced that with Part is consistent mechanism created VIII raising defenses. established methods of unique aspects of these I am concerned that some also prove procedures may and create to be unworkable respectfully Accordingly, I concur. confusion. *50 (concurringI
¶ 99. CROOKS, N. PATRICK J. dis- senting). respectfully below, For reasons set forth I agree majority's concur/dissent, since I with the result reversed, Hamdan's conviction should be I but majority's remanding dissent on action this matter. majority improperly
¶ 100. The in this case reads § exceptions into Wis. Stat. 941.23 in order to hold that exceptions
it is constitutional. Such to the statute by legislature. should not be made Looking this court, but itself, at I the statute conclude that Wis. Stat. § passage 941.23 has become unconstitutional with the Article I, Section 25 of Wisconsin I Constitution. agree with Chief Justice Abrahamson's dissent that the majority erroneously assigns court, to a rather than a jury, determining involving the task of factual issues charge whether defense to a weapon is available ato defendant. agree I 101. her with dissent that this court attempt engraft exceptions
should not
onto Wis. Stat.
§
try
941.23, in order to
to make it conform to consti
tutional strictures. Chief Justice
dissent,
Abrahamson's
If
the statute
not
does
conform to the Wisconsin
Constitution,
amended,
as
then the statute is unconsti
Zarnke,
tutional. See State v.
224
2d 116, 139-140,
Wis.
(1999);
N.W.2d
Hall,
State
2d
Wis.
(1997).
¶ 102.
I
however, with Chief
Justice Abrahamson's conclusion that the statute sur-
vives
constitutional amendment and remains con-
light
stitutional.
In
I,
of Article
Section 25 of I
Constitution,
Wisconsin
conclude that Wis. Stat.
unnecessarily
941.23 is unconstitutional
it is
because
rigid
provides
exceptions
broad and
now and
no
as it is
written. The
statute is not
reasonable exercise
majority
police power. If
to refrain from
were
state's
attempting
exceptions
in the statute where none
to find
presumably find it unconstitutional.
exist, it
would
too
incompatible
of the statute
breadth
right to bear arms. Its
the broad constitutional
with
anyone
any
prohibition
and,
at
time
there-
extends to
unnecessarily impinges
improperly
on a
fore,
person's
security,
defense,
"for
hunt-
to bear arms
any
purpose."1
ing,
The-
lawful
recreation or
other
gun placed
prohibit
on the
has been held
statute
glove compartment,3
on a
in a
car,2
front seat of
"goes armed" even
behind the driver's seat.4 One
shelf
*51
going
weapon.5
nowhere with the concealed
when
§
may
argued
¶
It
that Wis. Stat.
941.23
104.
be
test, as
reasonable
the constitutional
withstands
may permis-
police power. A state
exercise of the state's
sibly
power
promote
police
in
its
order
exercise
Reginald
general
State,
299,
v.
193
2d
D.
Wis.
welfare.
(1995).
police
However, the
308, 533
state's
N.W.2d181
subject
power
limitations,
not
used in
is
and is
to be
fashion,
such,
as
and,
excessive
an unreasonable or
by
constitutions. State v.
limited
the state
federal
Bank,
490, 222
Inc.,
482,
2d
Blood
65 Wis.
Interstate
(1974).
weapons laws have
912
Other Wisconsin
N.W.2d
1
Const,
I, § 25.
Wis.
art.
2
(Ct.
Walls,
73,
65,
App.
2d
3
(1986).
N.W.2d 565
Fry,
2d
388
v.
131 Wis.
State
4
(1930).
429, 432,
State,
been tailored, thus, more and, do not suffer vulnerability the same constitutional as one at hand police power prohibi- here.6 The state's save a cannot sweeps broadly tion that as as Wis. Stat. 941.23. Notwithstanding majority's exceptions engrafted logically statute, onto the it extends to such " variety 'open ample wide that it scenarios leaves no by may alternative channels which the citizen exercise Arreola, issue.'" at Brandmiller v. 199 Wis. 2d (1996) (quoting City 528, 541, 544 N.W.2d894 Lutz v. (3d Cir.1990)). Pennsylvania, Logi York, F.2d cally argument, extended, as the State oral conceded at prohibits gun storing weapons it owner from his out plain sight, gun such cabinet, closet, as in a in or drawer by his home. If such reasonable actions are foreclosed dangerous statute, the weapons owners of firearms and other effectively, significantly, have been de prived they may of the means which exercise the any pur constitutional to bear arms for lawful pose. my opinion, Since, the statute is uncon- light
stitutional
amendment,
of the constitutional
making changes
then
it,
so that the statute will be
province
future,
is the
*52
legislature. Policy
affecting
decisions
the statute's con-
stitutionality
typical legislative
should be made in
fash-
hearings
vigorous
by
ion. Public
and
debate
members
legislature
appropriate
employ
are
methods
when
developing
appropriate
a law that is
for the
citizens
By
Wisconsin
within
constitutional mandates.
its
(machine
(short-
§§
Wis. Stat.
guns),
941.26
941.28
shotguns
rifles),
barreled
(possession by
felon),
941.29
minor),
(possession by
948.60
(possession
and 948.605
in a
zone).
school
engraft
exceptions
attempting
approach
its
onto
process.
majority squelches this
statute, the
pointing
majority
in
out that
is correct
provi-
among
that have a constitutional
the six states
guaranteeing
arms,
do not
to bear
but
sion
carry
weapons
any
concealed
of citizens to
allow
legally,
class
unique
of its
in the strictness
is
Wisconsin
carrying
Majority op.,
prohibition.
¶ Wisconsin's
(CCW)
exceptions.
weapons
no
law contains
laws
have CCW
mentioned above
The other five states
exceptions,
significant
common
the most
contain
place
being
exception
of business.7
or
for one's home
pro-
approach
Wisconsin
The constitutional
majority, rewriting
by
posed
CCW
the Wisconsin
exceptions
way
adopt
court, is not the
law this
rights
exercise their
citizens to
allow Wisconsin
that
reasonably.
recognized the
have
state courts
108. Other
regulate
police power
the constitutional
state's
legitimate
"the
also held that
arms, but have
to bear
(2000) ("...
5/24r-l(a)(4)
except
Ann.
Comp.
Ill.
Stat.
place
fixed
in his own abode or
his land or
when on
("...
21-4201(a)(4)
(1995)
.");
§
Kan. Stat. Ann.
. . .
business
abode or
person's
in the
person's
land or
except when on
(1995)
571.030(3)
business.");
§
Mo. Ann. Stat.
place of
fixed
(".
which
premises over
dwelling
upon
unit or
business
. . in his
28-1202(2)
....");
§
Rev. Stat.
Neb.
possession
the actor has
(1995)
en
defendant was
when "the
exception for
(providing
the time
business,
at
calling,
employment
or
any
gaged
lawful
and the
weapons
or
any weapon
was
he or she
time were
at the
person
placed
was
in which such
circumstances
weapon or
carrying person justify
prudent
such as to
or
person, property,
her
defense of his or
for the
weapons
2923.12(C) (1997) (providing
Ann.
family.");
Rev. Code
Ohio
lawful business
the actors
"going to or from
exception for
home.").
in the actor's own
and "while
occupation"
*53
governmental purpose
regulating
right
in
to bear
pursued by
broadly
arms cannot be
means that
stifle
right
governmental
the exercise of this
purpose
where the
narrowly
City
can be more
tailored."
Princ
of
(W.
1988). many
Buckner,
eton v.
¶ anAs examination of other facing question modify the same shows, Wisconsin must its statutes order that it not, effect, does bar its legally exercising citizens from arms, their to bear as described in I, Article Section our state consti- (1) might by Creating tution. This licensing system be done either: qualified which certain individuals (2) carry weapons; creating are certified to exceptions scope to Wis. Stat. 941.23 that narrow only of the law to cover time, certain reasonable man- place ner and on restrictions of concealed weapons. Only then will Wisconsin's CCW statute be legitimate insulated from the constitutional attack that it is too broad. *54 down the cur
¶
If
court were to strike
this
legitimate
statute, there would be
CCW
rent Wisconsin
during
of the law this state
concerns about the state
legislature could amend the
interim, until
the
Constitution, as
to conform with the Wisconsin
statute
of such a decision
However, the effective date
amended.
legislature
provide
delayed,
in order to
could be
necessary
amendments
time to enact the
sufficient
Dep't
present
Kliesmet, 211
Corr. v.
Wis.
law. See
of
(1997) (delaying, for one
254, 267,
2d 246, 389 N.W.2d12. See also State v. (1985). 2d Wis. N.W.2d283 Lastly, agree, ¶ 112. I also, with Chief Justice majority improp- Abrahamson's determination that the erly gives judge decide, factual to the determinations jury, concerning law, aas matter of and not to the whether a defense is available to a defendant in a Majority op., ¶ 85, case. and Chief jury dissent, Justice Abrahamson's 132. It is for a determine whether to believe defendant's version of Coleman, 199, 214, events. State v. 2d 206 Wis. (1996). majority requires N.W.2d 701 here *55 inappropriately, weigh court, the evidence and make relating factual decisions to a constitutional defense against charge. a CCW majority erroneously 113. The this case reads §
exceptions allowing into Wis. Stat. 941.23 rather than legislature to determine how to make the statute requirements conform to the the constitution, as § amended. I conclude that Wis. Stat. 941.23 uncon- is now, stitutional because of the constitutional amend- adopted would, ment Wisconsin's I citizens. delayed holding allowing legislature time for the act, present find the statute unconstitutional, and, there- respectfully agree fore, I concur since I with the majority's result that Hamdan's conviction should be majority's I However, reversed. dissent on the action remanding this matter.
¶ 114. SHIRLEY ABRAHAMSON, S. CHIEF (dissenting). JUSTICE I conclude that Wis. Stat. § prohibiting people going 941.23, from armed with a weapon, concealed applied. is constitutional as written and as provides "[t]he The Wisconsin constitution people keep security, have and bear arms for hunting, any pur- defense, recreation or other lawful pose."1I therefore dissent.
¶ 115. The court should not rewrite Wis. Stat. § exceptions "privately 941.23 to include for owners of operated persons "private businesses" and in their resi- If dences."2 Wis. Stat. 941.23 is unconstitutional be- needing exceptions broad, cause it is too to render it constitutional, the court should strike statute down legislature and allow the to enact a more narrow prohibition. go We have often said that "courts cannot beyond province legitimate construction to save [a meaning plain, statute], and where words purpose cannot be read into it or of it out saving possible one Moreover, or other alternative.3 Const, I, § Wis. art.
2 Majority op.,
Hall,
(1997).
State v.
54, 82,
2dWis.
ture would soon it need realize not he concerned with judiciary always constitutional limitations: the could be relied upon language to mend and mold fit its to within constitutional constraints. *56 by any "While a statute be held should valid whenever fair interpretation may it be construed to serve a constitutional purpose, go beyond province legitimate courts cannot of it, meaning plain, construction to save and where the is words purpose saving cannot be it or it read into out of for the one or "[wjhere possible other alternative." It is well-established that language plain, used in a statute is the court cannot read words constitutionality, into it that are not found.. . even to save its legislation because this would he and not construction.” " Finally, '[ajlthough this Court will often strain to construe legislation against attack, so as to save it it must not
501 subjecting "defining laws violator the contours of judicial, legislative, penalty not a func- criminal tion."4 explains part dissent The first of this applied § to the constitutional as 941.23 is
Wis. Stat. exercise it is a reasonable defendant here because power, police it does not eviscerate State's security. keep arms for and bear defendant's major- why explains part this dissent The second authority gives ity opinion it courts the errs when given defendant law, that a determine, as a matter charge may defense to have a valid constitutional subject weapon, a determina- Finally, purpose I finder of fact. tion of lawful majority appreciate opinion's failure to comment on ability of the frustrated the extent to which it has the legislature weapons policy public on concealed to set Wisconsin.
I—H Cole, WI 112, 2003 264 Wis. 117. Under State v. presume 328, are to that Wis. 2d 665 N.W.2d we impose constitutional, and we 941.23 is Stat. heavy proving on it is unconstitutional burden of .judicially rewriting carry point it". of.
and will not
this to the
thing
“Otherwise,
as an unconstitutional
there would be no such
statute."
Zarnke,
139-140,
able doubts about the statute must be resolved favor constitutionality.6 of
¶ Furthermore, because the statute is an judicial police power, exercise of the State's review is power limited to whether exercise is reason- reviewing In statute, able.7 of the it reasonableness pass judgment is not for this court to on the wisdom of legislative legislation. "Where action is within the scope police power, fairly questions debatable as propriety reasonableness, wisdom, action, are not for the determination of the court legislative body."8 but
¶ To determine whether Wis. Stat. 941.23 is constitutional on the facts of this case we must ask questions. question regu- two The first is whether the weapons lation on concealed is a reasonable exercise of namely, police power, promote the public does the statute safety, health, or welfare and bear a reasonable 5 Cole, 112, 520, See State v. 2003 264 Wis. 2d 665 WI disagree 328.1 with N.W.2d this court's conclusion Cole enjoys constitutionality a presumption statute when it is adoption enacted before of the constitutional amendment Cole, 520, (Abrahamson, C.J., issue. 264 Wis. 2d 52 concur ring). say presumption I would instead that no of constitution ality applies and the defendant in case this carries burden of showing that the with the statute is inconsistent amendment. 6 Shorewood, 92, 10, Village Nankin v. 2001 WI 245 86, 2d 141 Patients (citing Comp.
Wis. 630 N.W.2d Aicher v. Wis. 849). Fund, 99, 2000 WI 237 Wis. 2d 613 N.W.2d 7 Jackman, 700, 705, 2d 480 State 60 Wis. N.W.2d (1973). 357, 363, 114 Milk 2d Co-op, State v. Dried Prods. Wis. (1962). N.W.2d412 *58 purposes.9 accomplishing The second those
relation to question exercise of the is whether the reasonable police power the constitutional eviscerates state's arms. to bear disputes prohibition
¶ that on 120. one No carrying of is a reasonable exercise a concealed § police power.10 Wisconsin Stat. 941.23 the State's justification safety. primary promotes public The weapons carrying prohibition is that it on by preventing public protects from an individual deadly weapon public having on hand which the a officer) (including unaware, is which a enforcement law passion.11 public may The in the sudden heat of be used argument goes, if it to take safer, the is able notice carrying weapons proceed people who are those present accordingly. Indeed, in a case similar to the Mata, 315, 321, case, 199 2d 544 N.W.2d State v. Wis. (Ct. 1996), appeals App. that the court of concluded 578 persuasive argument "a can made that tavern be handgun may display deter crime while owner's probably gun would not."12 concealment of the 9 D., 299, 308, Reginald In 2d 533 Interest of 193 Wis. (1995). N.W.2d 181
10 prohibition majority opinion explains, Wisconsin's As only a weapons is not reasonable of concealed many purposes police power but also serves valuable exercise of 53. public safety. Majority op., in promoting ¶ 11 McAdams, see also State v. 54-56; Majority op. 714 ¶¶ 1986). (Wyo. P.2d analysis suspect as majority opinion dismisses this n.32, see I, majority op., yet light of Article Section changes the rea nothing amendment about argument openly the bald persuasiveness sonableness or may handgun deter crime while concealment displaying a probably would not. making it a misdemeanor Moreover, weapon,
carry 941.23 bears Wis. Stat. relationship end of to the and substantial reasonable promoting stigma- safety. Criminalizing public conduct doing people a conclu- it, from deters conduct and tizes agrees majority opinion with as well.13 sion present question case is in the The second police the State's exercise of the reasonable whether to bear power the constitutional eviscerates majority opinion explains, an otherwise arms.14 As police power invoked cannot be exercise of reasonable "destroys," way "frustrates," or "eviscerates," *59 right arms.15 Short to bear "nullifies"the constitutional opinion majority ex- further that, however, as the right and is plains, not arms is absolute to bear the regulation.16 subject to reasonable a statute to determine whether In order 123. reasonably merely right or a constitutional eviscerates right the regulates must examine we a constitutional purpose regulation "degree" the frustrates the to which City example, right.17 For constitutional (Wash. 1996), Montana, P.2d 1218 919 Seattle v. 13Majority op., 14Majority op., 56.
15Majority op., 40-41. ¶¶
16 Majority op., ¶ 17 (Wash. Montana, 1218, 1224 P.2d 919 Seattle v. City of Renton, 1996) City v. Found. (citing Amendment Second (Wash. 658 P.2d 1983)); Boyce, State v. see also App. Ct. P.2d 596 1983) (Or. on a requiring people (regulation App. Ct. from remove ammunition public place in a public street or man only regulates it because is constitutional their firearms arms); bear State unreasonably right hinder ner and does not 1980) (total (Or. prohibition on Kessler, 94, 99-100 614 P.2d v. unconstitutional). billy places clubs all possession of Washington Supreme upheld city Court ordinance regulating carrying possession "dangerous and knives" in the face of a constitutional amendment granting right to bear arms. The court reasoned police power reasonably was exercised to "promote public safety good city order," and that the "complete prohibition possession did not carrying enact on merely "regulated carrying, knives" but transport, and use of Therefore, knives."18 the statute was constitutional.19 similarly
¶ 124. Wisconsin Stat. 941.23 is
consti-
applied
tutional when
to the defendant because it does
right
privately
not eliminate the
of an owner of a
operated
security
business to bear arms for
or defense
simply
may
but
limits the manner in which he or she
§is,
exercise the
to bear arms. That
941.23 does
prevent anyone
security,
not
from
a firearm for
hunting,
purposes.
defense,
recreation, or other lawful
18 Seattle,
Colorado Court making concluded that a statute it a felony use, possess, carry ex-offenders to was a reasonable exercise of the police power despite State's a state (1) to bear explained: arms. The Court (2) legitimate statute is a police power; exercise of the *60 legislature cannot enact police powers laws in the name of that nugatory "render Bill Rights [the] and other constitutional (3) protections"; but "simply statute that possession limits the guns weapons by persons other likely who are to abuse possession" such does not protection. eviscerate Id. at 391. Cleveland, (Ohio See also Arnold v. 163, 616 N.E.2d 173
1993) (legislation scrutiny survived constitutional because the regulation goal achieved its protecting public by "limit- [ing] accessibility generally recognized dangerous of certain firearms").
506 carrying weapons, manner of it limits the Rather, requiring person or within is on a that gist The of the person's not be concealed.20 reach nothing about Wis. Thus, concealment. offense is the eviscerating, destroying, § comes close 941.23 Stat. nullifying right frustrating, to bear arms or any person. other here or for the defendant Wisconsin by requiring impaired right arms "is not The to bear carry weapons openly."21 individuals majority opinion reaches a different ¶ The 125. majority opinion question. The to this second answer privately prohibiting of a an owner concludes weapons for operated from business right meaningless security purposes renders arms.22 bear contrary majority opinion's conclusion
¶ 126. The beyond goes examination it an fact that from the results degree and instead is restricted to which supporting policy weighs Stat. Wis. the merits of police exercise of the State's a reasonable 941.23 as oper- privately applied power of a to the owner when majority opinion concludes, ated business. 20 majority op., See 46. ¶
21 (Ariz. Collins, App. Ct. 1021, P.2d 1022-23 Dano v. 802 1990). ("[T]he Cole, to bear also 2d
See 264 Wis. an indi- illusory by prohibiting clearly not rendered arms is glove in the either weapon hidden keeping a loaded from vidual vehicle."). The in a front seat under compartment challenges is a difficult facial applied as between distinction Amend- in First apparently arose The distinction to make. one courts has troubled cases, in other cases usefulness ment and its n.19, Natwick, WI Schultz and scholars. See 19, 653 N.W.2d 257 Wis. 2d
22Majority op.,
example, person likely impulse" that a is less to "act on passion setting inor the heat of "in a familiar in which safety paramount and satisfaction customers is liability nearly and the for mistake is certain."23 The majority "[a] shopkeeper also concludes that is not likely use to facilitate own his Finally, major- crime of violence in his own store."24 ity opinion asserts that there is less need in these circumstances for innocent customers to be notified possesses weapon— the owner of a business anyone premises pre- who enters a business "should possesses weapon, sume that the owner even if the weapon is not visible."25 majority opinion engages In short, the public policy promulgates
its own consideration of and psychology its own views of human to reach its conclu- sion that Wis. Stat. 941.23 is unconstitutional as applied privately operated to an owner of a business any without the benefit of facts or reasoned debate on giving legislature's the matter or credence to the deter- public policy psy- mination or views about human chology.26 majority opinion's
¶ 128. The consideration of policy psychology majority's and is in First, error. unpersuasive. equally plau- conclusions are It seems argue person rationally sible to that a will act less impulsively defending privately more or her his own 23Majority op., 24Id.
25 Id.
26 majority op., See ("Requiring openly storeowner to display weapons only as the available means of exercising keep and bear security impractical, arms for unset tling, possibly dangerous."). *62 (a person's place) the business familiar because
owned strong security feeling the of is so and interest in security any great. so in that is violation from breach a that crime of violence is Likewise, there is no evidence shop likely shop in his store. A for a owner own less gun frightened, intimidated, and is owner who has Wyoming likely it, use as the is more to and threatened upholding Supreme its own con- concluded in Court necessary, always weapon it law, "it nor is is not cealed deadly always in one's de- to use force own lawful, Finally, plausible equally it is to conclude that fense."27 "public place," privately operated ais that the business exposed danger the of a concealed to customers will be places, weapon public and a business owner's outweighed by weapon security carry is safety.28 public needs of the importantly, the Second, and more
majority's are The stat- irrelevant. dubious conclusions 27 State, McAdams, Garcia (quoting P.2d 667 at added). 1983)) (Wyo. (emphasis P.2d 1148 Weeks, Ruby B. Annota See majority op., (quoting 63¶ Forbidding in- tion, Scope Exception, and Statute Effect of Premises or at Carrying Weapons, as to Person on His Own 2(a) (1974) Business, (recog His Place of 57 A.L.R. 3d weapon where there is nizing place of a concealed danger public)). contact with everyone opinion's conclusion that should majority privately operated carrying is an of a business
presume owner majority face of the weapon is also dubious gun is openly that contrary conclusion opinion's presence it "would alert criminals to unreasonable since Majority op., and weapon frighten friends customers." for customers to Why frightening and not it reasonable is are privately operated business presume that all owners of frightening and unreasonable carrying a concealed but weapon openly? permit carry the owner presumed ute is the burden on the challenger heavy. By enacting legisla- the statute the safety public ture has determined that is advanced privately operated when owners businesses, like all carry required guns other individuals, are their openly. Although majority opinion has set forth counter-arguments legislature's to the determination weapons public safety, that concealed are hazardous to majority opinion challenger neither the nor the has heavy demonstrating carried the burden legislative determination is unconstitutional because degree to which it restricts the to bear arms *63 privately operated for owners businesses eviscerates right. the constitutional ¶ 130. While I conclude that Wis. Stat. 941.23 is
II applied, I constitutional as write further because I majority parcels the believe that also it errs when out judge jury questions necessary between the for determining newly whether its created constitutional charge carrying weapon a defense to is a available to defendant. majority opinion
¶ 131. The concludes that a de- prosecution challenges carrying fendant a for who a weapon grounds concealed on constitutional will be required "legal secure affirmative answers two questions" for the circuit court before he is entitled to question raise a constitutional defense and one of fact may prevail.29 for the fact finder at trial before he (1) legal questions two for the circuit court are: did the concealing interest in defendant's the substan- tially outweigh enforcing the State's interest the
29Majority op., 86. (2) weapons statute; was concealment only the circumstances to reasonable means under the majority opin- according carry gun.30 Then, to the the answers to ion, if defendant receives affirmative questions trier fact must determine these two separate question whether a verdict means of purpose for had a lawful defendant weapon.31 questions why are It is unclear to me so it law First,
divided. is well established Wisconsin by refusing give theory a a commits error court jury to the when a defendant of defense instruction support presents evidence in of the defense. sufficient deciding is entitled to assert whether defendant When weigh the It asks a court does not evidence. defense, only evidence, construction of whether reasonable supports favorably to the defendant viewed most alleged may defendant's A court refuse the defense. only request no an when there is evi- instruction support dence to it. involving claims that a Moreover, in cases upon impermissibly infringes prosecution
criminal jury constitutionally protected right, typically it defense is whether the constitutional that determines *64 example, person is the For available to defendant. 944.21(4) (1995-96) § prosecuted under Stat. Wis. distributing The statute defines ob- obscene materials. by protected the to exclude materials scene material jury, defining The court instructs the First Amendment. 30 Id.
31 Id., 78, 86-87. ¶¶
511 protected speech, what is First Amendment free jury the whether decides the constitutional defense is available.32 940.203(2) addition, In Stat. Wis.
(1997-98) penalizes person judge. who threatens a To against the render statute constitutional a First challenge, Amendment the court defined the threat in only the statute cover "true threats" in order to jury render the statute A constitutional. is instructed regarding jury the definition of "true threat" so that the can decide the whether facts fall within the statute prosecution is barred First Amendment.33
¶ 135.
cases,
are,
On the basis of
these
which
my opinion, substantially
bar,
to the
similar
case at
I
question
majority opinion's excluding
jury
from
decision-making regarding guilt
present
in the
case.
prohibiting
carrying
Here we have a statute
of a
weapon.
The court
read in a
has
constitu-
majority opinion appears
tional limitation.
to turn
precedent
permits
our
on its head
court,
when it
not
jury,
to reach substantive conclusions
about
merits of a defendant's to a
defense
charge
of
when reasonable
might disagree.
people
majority
It seems to me that the
opinion reverses
law when it
well-established
concludes
persuade
must
defendant
a court as a
matter
law
his defense
before
meritorious
his defense is
jury.
presented
majority opinion,
to the
Under the
when
people
availability
reasonable
could differ
about
32
Inc.,
County
Mgmt.,
See
Kenosha v.
C&S
2d
Wis.
373,
McCauley
(1999);
see also
v. Tropic of
weapon Majority of the commission of crime. weapon furtherance person to conceal purposes if there are two op., 77. What security"? if the other "for What weapon, one criminal and his conceal but other fact makes the purpose is lawful some an unlawful, carrier is such as the fact ment ex-felon? Majority op., ¶ *66 enforcing statute,37 the or whether concealment was only
the reasonable means the under circumstances to carry gun? recognize person's the I that a state of mind typically determination, is a factual but so is reason- majority opinion why explain ableness. The does not three) (question purpose jury lawful for the not is but concealing whether there ais reasonable alternative to two).38 weapon (question the puzzled ¶ aside, I 138. As an am about where the majority requirement finds the in the constitutional purpose the amendment that lawful if the be individual weapon satisfies the circuit court that had he the for security purposes. opinion majority The reads con- the requiring person carry stitutional amendment as a to weapon security the concealed for and for a lawful doing, purpose. majority opinion using In so the the any catchall in constitution, the "and other lawful purpose" "security" preceding the restrict word it. requirement purpose" unduly This of "lawful seems to application restrict contrary the constitutional amendment's purpose to its terms. "There is no the for presence [the phrase] except expand catchall the potential qualifying" purposes.39 list 37 majority opinion never addresses whether the State's enforcing interests in conclusively the statute are established opinion vary this or will from case case. 38Justice analogizes Bablitch's concurrence the circuit majority court's role under opinion's framework to circuit court's in determining role a facts under Fourth case. concurrence, Amendment Justice Bablitch's however, context, In Fourth Amendment as the concurrence admits, questions regarding all reasonableness are for court. Peters, 23, State v. 2003 WI 263 Wis. 2d N.W.2d 171. a that Third, court's determinations concealing weapon a substan-
defendant's interest enforcing tially outweighs the State's interest one) (question weapons and that concealed statute only reasonable means under the concealment is the two) carry weapon (question are a circumstances necessarily determination a intertwined with a for lawful defendant carried purpose. determines consti- Thus, when court may effectively it defense be raised nullifies tutional opinion remaining majority question that the reserves jury. *67 present example, ¶ case, for the 140. In the main- that defendant's interest in court's conclusion the substantially taining weapon outweighs the prohibiting weapons is in State's interest expressly premised fact the defendant on the weapon purposes possessed "for of and carried his security."40 majority opinion "If the holds: constitu- any- right security is to mean to bear arms tional general person thing, permit matter, to must, it as a possess, carry, conceal arms to maintain and sometimes private privately oper- security his residence or the of safely weapons business, and to move and store ated jury finding premises."41A that the defen- these within weapon pur- for an unlawful dant carried a concealed legal applicability pose plainly the this contradicts present case. to the conclusion vein, recites majority 67. same the Majority op., In the ¶ general these as "As a result of
the facts the case follows: himself, family, safety his and his for the specific concerns customers, defendant] security property, [the the of his and for the front next the cash kept handgun under store's counter Majority during op., register store hours." added). Majority op., (emphasis III. COMMENTARY majority suggests opinion ¶ 141. The legislature "clarify carrying needs the law" on con- weapons light cealed of the new constitutional keep security, hunting, and bear arms for defense, any purpose.42 recreation, other lawful At the same adopts principles time, it of constitutional law for determining person courts to use in whether a has charge carrying defense to a con- legislature cealed "until the takes further ac- tion."43 doing, majority opinion
¶ 142. In so fails to. appreciate important points. two legislature's First, intent in the statute prohibit weapons of concealed all places history is clear. The of the constitutional amend- replete ment is with evidence that amendment was abrogate existing statutory regulation not intended to acknowledged of firearms. As this court Cole, legislative history behind the constitutional amend- granting ment to bear arms in Wisconsin "clearly suggests legislature that the did not intend to repeal gun reasonable laws such as CCW statute."44
¶ pre- 144. The intent of the amendment was to rights gun vent further of owners, erosion the of referring regulating guns.45 to local ordinances In ad- according public opinion poll dition, to a at the of time 42 Majority op., 85. ¶ 43Majority 89. op., ¶ 44 Cole, 520, 264 Wis. 2d 39. ¶ 45 Cole, 520, (Prosser, J., 264 2dWis. 64 concurring). ¶
516 opposed of amendment, almost 80% Wisconsinites the carrying weapons.46 legalizing of concealed the majority opinion has ¶ erected Second, the any action the to further roadblocks policy public legislature might to on take determine weapons. concealing The constitu- firearms other right includes a arms in Wisconsin now tional to bear right only privately of owned and not for all owners persons private operated resi- in their businesses purposes carry weapons for to concealed dences majority security, many as The not but for others well. only right arms mean that for the to bear to concludes person anything can conceal arms it must mean that security private residence or the of his to "maintain operated privately business,"47but also that the consti- pro- right further arms tutional bear Wisconsin carry any person other tects the person's weapon if that the interest determines court weapon "substantially out- a concealed enforcing weighs" the concealed interest State's Cole, Monks, Jeffrey (citing 264 Wis. 2d Against Tyranny Impact ?: The End Gun Control Protection Bear Arms Right To on New Wisconsin Constitutional of State Gun 284). Laws, Control Rev. 2001 Wis. L. attempts to limit Majority op., Despite its circumstances, precise defendant's present holding example, For majority opinion is much broader. language in the concludes, prosecutes "[I]f State majority opinion reach, it having easy within storeowner for security and is strongly discouraging the use firearms Majority op., 74. This nullifying to do so." practically hardly of this case. language is limited the facts *69 weapons statute.48 The number of individuals can who large. fit the under umbrella is importantly, any ¶ 146. More when court con- exempted prohibi- cludes that an individual is from the weapon tion on a concealed under this "sub- stantially outweighs" determining test, the court is exception. legislature the constitution the demands may not undo the court's determination absent another constitutional amendment. opinion majority hap- 147. The concludes, "We
pily legislature concede better able is than this public policy court to determine on firearms other questions The two majority opinion establishes for determining whether constitutional defense is available are sweeping broad potentially to apply countless individuals any under number of circumstances. example,
For privately an owner of a operated business caught carrying while walking deposit earnings store's in a certainly argue bank can that he is exercising right his keep and bear arms under circumstances in which right the need to exercise is substantial and that concealment, walking entering bank, while to and upon is only exercising reasonable means for the right to bear arms under the manager circumstances. So too can a charge store for an argue absentee owner exercising right that she is her keep and bear arms under circumstances in which the need to right exercise the is substantial and that is concealment only reasonable means for exercising right. Indeed, what is stop any person claiming from this or his her workplace? Similarly, anyone who must walk home from a stop bus
every night after work through high neighborhood crime can surely argue that his or her need to exercise the to bear high, arms is necessary, concealment and that his her interests in self-protection substantially outweigh the State's regulating interest in weapons. *70 majority's recognition Unfortunately,
weapons."49 reading ability from two not dissuade it did inferior its weapons exceptions statute into the reading excep- setting additional forth criteria legisla- effectively blocking the statute, tions into concerning determining policy public con- ture from weapons. cealed foregoing I reasons, dissent. For « op., Majority