Supreme Court of Wisconsin upholds RKBA under state constitution

[jody]

Supreme Court of Wisconsin
Wisconsin v. Hamdan

In addition to the following quote, "VIII. COMMENTARY" in the court’s decision is worth reading.

QUOTE
1. DAVID T. PROSSER, J. This case involves an incident that occurred in the city of Milwaukee on the evening of November 26, 1999. The defendant, Munir Hamdan (Hamdan), owned and operated a grocery store on West Capitol Drive. As time came to close the store, Hamdan removed a handgun that he kept under the counter near the cash register and carried it into a back room for storage. At some point he wrapped the gun in a plastic bag.

2. While Hamdan was in the back room, two plain clothes Milwaukee police officers entered the store. Hamdan's son pressed a buzzer, summoning his father, and Hamdan shoved the wrapped gun into his trouser pocket and went out to meet the visitors.

3. The officers explained that they were conducting a license check. Hamdan led one of the officers to a glass-enclosed area where he kept the cash register and showed him the licenses. During the ensuing conversation, the officer asked Hamdan if he kept a gun in the store and, if so, where it was located. Hamdan answered affirmatively and then pulled the wrapped gun from the front pocket of his trousers. The officers confiscated the gun but did not arrest Hamdan or charge him with an offense.

4. Hamdan was subsequently charged with carrying a concealed weapon, in violation of Wis. Stat. § 941.23 (1999-2000),1 and convicted at a jury trial. He appealed his conviction and his case is before this court on bypass of the court of appeals pursuant to Wis. Stat. § (Rule) 809.60.

5. We are asked to determine what effect, if any, a new amendment to the Wisconsin Constitution has on the State's ability to prosecute and punish the carrying of concealed weapons. The new amendment, Article I, Section 25, declares that the people have the right to keep and bear arms for lawful purposes.2 While Wis. Stat. § 941.23 (the CCW statute) withstands a facial challenge to its constitutionality under the amendment, see State v. Cole, 2003 WI 112, 27, ___ Wis. 2d ___, ___ N.W.2d ___, we recognize that there are now circumstances in which a strict application of the CCW statute may result in an unreasonable limitation of the new constitutional right. In Hamdan's case, we must determine whether the constitutional right to keep and bear arms for security or defense permitted Hamdan to carry a concealed weapon in his store under the circumstances of this case, notwithstanding the CCW statute.

6. We conclude that it was unreasonable and unconstitutional to apply the CCW statute to punish Hamdan on the facts as we understand them. Strict application of the CCW statute effectively disallowed the reasonable exercise of Hamdan's constitutional right to keep and bear arms for the lawful purpose of security. Considering the diminished public interest in applying the CCW statute in the context of Hamdan's conduct, we hold that the State's police power must yield in this case to Hamdan's reasonable exercise of the constitutional right to keep and bear arms for security. This right, when exercised within one's own business and supported by a factual determination that no unlawful purpose motivated concealment of the weapon, will usually provide a constitutional defense to a person who is charged with violating the CCW statute. Because Hamdan was not permitted to assert this defense, his challenge to the CCW statute was not fully addressed by the circuit court and his conviction under Wis. Stat. § 941.23 was not proper.
UNQUOTE

For two related cases, see:

Wisconsin v. Phillip Cole

Wisconsin v. Gonzales