Wisconsin Circuit Court Decision Thread

Another Wisconsin Open Carry Lawsuit

And the hits keep coming....
http://onlygunsandmoney.blogspot.com/2010/10/another-wisconsin-open-carry-lawsuit.html

Little more than a week after they sued the City of Madison and Chief Noble Wray, they are suing the City of Brookfield (Wisconsin) and four Brookfield Police Department officers in U.S. District Court for the Eastern District of Wisconsin. The city and officers stand accused of violating the civil rights of Krysta Sutterfield by performing an illegal search and seizure among other things.

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The Complaint is here: http://www.wisconsincarry.org/pdf/Brookfield/Doc_1_Complaint.pdf

Along the same lines as the current Madison and recently settled San Diego Wolnyak suits, on the lines of illegal detention/search for lawful Open Carry.

Wait till we get a SCOTUS delivered national carry mandate. There's going to be a whole metric butt-load of these law suits in the non-free states. After the heavy lifting is done by the power-attorneys a lot of us are going to be doing some regular lifting with this kind of stuff for a while.

There's this today from Wisconsin's Clark County (state) Judge.

http://www.wrn.com/2010/10/county-judge-rules-concealed-carry-ban-unconstitutional/

And, it's knife related, not firearms.

“The government has to have a compelling state interest to do so (restrict the right to carry) and they have to have the least restrictive means of doing that,” said Poss. “Public safety obviously is a state interest, but there’s all kinds of ways to do that in this regard.” In his decision, Counsell states the law forces citizens to “go unarmed (thus not able to act in self defense), violate the law or carry openly,” but notes displaying weapon’s openly isn’t a “realistic alternative.”

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fightinbluhen51 said:

There's this today from Wisconsin's Clark County (state) Judge.

http://www.wrn.com/2010/10/county-judge-rules-concealed-carry-ban-unconstitutional/

And, it's knife related, not firearms.

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Nice language there. We need to hear some of that in Maryland. This "you've got to prove you're in more danger than the riff raff by actually being assaulted first" is getting so old.

fightinbluhen51 said:

There's this today from Wisconsin's Clark County (state) Judge.

http://www.wrn.com/2010/10/county-judge-rules-concealed-carry-ban-unconstitutional/

And, it's knife related, not firearms.

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More interesting than the fact the judge tossed the ban on concealed carry in his jurisdiction was this (at least to me):

The decision was disseminated around the state Wednesday, and Poss (plaintiff's attorney) already had 50 congratulatory phone messages or e-mails from colleagues by Wednesday afternoon. “There’s a lot of interest in this obviously,” he said. “It’s not a left or right type of thing quite frankly. It’s a liberty thing.”

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That is the type of thinking we need.

Patrick said:

More interesting than the fact the judge tossed the ban on concealed carry in his jurisdiction was this (at least to me):



That is the type of thinking we need.

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Patrick, even more interesting is that this isn't firearms related either; It's purely "arms" related. Are citizens going to need concealed carry "permits" for carrying their pocket knives? Or will we be forced to now wear them on our sleeve to practice in our Constitutionally protected, civil right?

The point is, this judge not only used strict scrutiny, he did so and trampled pretty well all over "compelling interest" as well. The only downfall on this ruling are these A) it's only at the county level B) is not state wide and C) is not high enough up the state or federal food chain to really become concrete jurisprudence.

Correct me if I am wrong on those assumptions, but we can call this a good start, yes?

It's a share we have to pour $millions of our hard earn money to exercise a basic natural right.

fightinbluhen51 said:

Patrick, even more interesting is that this isn't firearms related either; It's purely "arms" related. Are citizens going to need concealed carry "permits" for carrying their pocket knives? Or will we be forced to now wear them on our sleeve to practice in our Constitutionally protected, civil right?

The point is, this judge not only used strict scrutiny, he did so and trampled pretty well all over "compelling interest" as well. The only downfall on this ruling are these A) it's only at the county level B) is not state wide and C) is not high enough up the state or federal food chain to really become concrete jurisprudence.

Correct me if I am wrong on those assumptions, but we can call this a good start, yes?

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Agree on all points. A good start. Everytime we win one it counts somewhere else. If not as precedent, then as example of how we need higher courts to settle the differences.

We got one county in WI that says laws against concealed carry are too burdensome, and others in the same state that see truly law-abiding citizens who OC as an automatic endangerment to society.

So a person in yet another WI location is left to wonder what happens to her when she carries arms for protection. That makes this a ripe question for the WI state courts. Someday soon someone will file for cert and get it. And it might just be someone already convicted of misdemeanor concealed carry.

I'd like to find and read his ruling. Especially any logic he used to dismiss OC as a viable alternative to concealed carry.

The SAF had a speaker at the GRPC this year who pointed out knives and guns are both going to share the ride through the courts.

Patrick said:

Agree on all points. A good start. Everytime we win one it counts somewhere else. If not as precedent, then as example of how we need higher courts to settle the differences.

We got one county in WI that says laws against concealed carry are too burdensome, and others in the same state that see truly law-abiding citizens who OC as an automatic endangerment to society.

So a person in yet another WI location is left to wonder what happens to her when she carries arms for protection. That makes this a ripe question for the WI state courts. Someday soon someone will file for cert and get it. And it might just be someone already convicted of misdemeanor concealed carry.

I'd like to find and read his ruling. Especially any logic he used to dismiss OC as a viable alternative to concealed carry.

The SAF had a speaker at the GRPC this year who pointed out knives and guns are both going to share the ride through the courts.

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I think the fact that knives are going to be there along side firearms plays in our favor, politically and socially. Knives are tools, and seen as such more frequently than firearms.

Inanimate metallic (and plastic) objects are just that, until placed in the hands of those who use them for good, or for bad. Nothing more, nothing less.

The VPC fanatics meltdown on the Wisconsin CCW Circuit Cour decision

The distorted view from Josh Sugarmann Executive director of the Violence Policy Center in Washington, DC

http://www.huffingtonpost.com/josh-sugarmann/activist-judge-rules-agai_b_764075.html

He does not even acknowledge this case was about knives, not guns.

trying to consolidate Wisconsin discussion here.

Judge Rules Concealed Carry Ban Unconstitutional

A Clark County judge says Wisconsin’s ban on carrying concealed weapons is unconstitutional. In the case, authorities charged a Sauk City man with carrying a concealed weapon, after he admitted he had a knife in his waistband. He never threatened anyone. In light of the landmark Supreme Court ruling in McDonald v. City of Chicago, attorney William Poss filed a motion to dismiss the case on constitutional grounds. Judge Jon Counsell obliged Wednesday, ruling the law is overly broad and violates both the Second and Fourteenth Amendments of the Constitution.

“The government has to have a compelling state interest to do so (restrict the right to carry) and they have to have the least restrictive means of doing that,” said Poss. “Public safety obviously is a state interest, but there’s all kinds of ways to do that in this regard.” In his decision, Counsell states the law forces citizens to “go unarmed (thus not able to act in self defense), violate the law or carry openly,” but notes displaying weapon’s openly isn’t a “realistic alternative.”

As of now, the decision only sets a precedent in Counsell’s court, but Poss expects the case will be appealed. “It’s ultimately going to get to either the Wisconsin Supreme Court and or the United States Supreme Court one way or another,” he predicted. The decision was disseminated around the state Wednesday, and Poss already had 50 congratulatory phone messages or e-mails from colleagues by Wednesday afternoon. “There’s a lot of interest in this obviously,” he said. “It’s not a left or right type of thing quite frankly. It’s a liberty thing.”

Clark County Assistant District Attorney Dick Lewis said he has 20 days to appeal the ruling, and no decision has been made. Wisconsin is one of only two states which completely ban carrying concealed weapons.

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http://www.ammoland.com/2010/10/15/...ed&utm_campaign=Feed:+ammoland+(AmmoLand.com)

Two things;

First "Oops!" for starting a second thread when this one was already going. My ebullient enthusiasm must have affected eyesight and higher cortical functions. {sorry}

Second, apparently there was similar "ebullient enthusiasm" when a recent case was brought to the WI SC and it failed at the hands of liberal progressive judges. Hopefully, the recent US SC cases will temper them to agree that the statute is unconstitutional --> but I've seen these liberals in action and to them freedom does not include 2A rights.

Fingers and toes crossed...

The State of Concealed Carry in the State of Wisconsin

Posted by John Richardson

When an obscure Wisconsin judge made a monumental ruling in an obscure case, the blogging world sat up and took notice. Clark County Circuit Judge Jon Counsell ruled earlier this week that the ban on concealed carry by the state of Wisconsin was unconstitutional. The pro-rights community celebrated his ruling while the anti-rights community (as usual) warns of blood in the streets.

Joshua Schultz was arrested for having a concealed weapon. In this case, the concealed weapon was an orange-handled, fixed-blade knife that he had stuck in the front waistband of his pants. He was in a private apartment when a Clark County deputy opened the door. Schultz immediately informed the deputy of the knife and showed him where it was when asked. He was then charged with carrying a concealed weapon in violation of Section 941.23 of the Wisconsin Statutes.

Schultz, as noted later, was represented in court by Assistant State Public Defender William Louis Poss. Poss introduced a motion to dismiss the case. He argued in his brief supporting that motion that the court had the authority to decide constitutional questions, that the level of scrutiny should be strict scrutiny, and that the Wisconsin statute was over-broad and therefore facially unconstitutional. He also argued that the right to keep and bear arms is a privilege of American citizenship and applies to the states through the Fourteenth Amendment's Privileges or Immunities Clause.

Judge Counsell, in his decision, first examines what level of scrutiny should be applied in this case. He concluded:He goes on to say that to pass the strict scrutiny test, the concealed carry ban must be justified by a compelling governmental interest, be narrowly tailored to achieve that interest, and be the least restrictive means for achieving that goal. While finding that the government did have a compelling interest in protecting the health, safety, and welfare of its citizens, he said the law over-reached and was over-broad. He compared the statute to a leaden blanket when a lightweight silk blanket would suffice. Moreover, he found that the law was not the least restrictive means to achieve the government's goal. He noted that 48 other states had some form of concealed carry and mass crime did not break out. Indeed, he referred to the work of John Lott and said there is a strong argument that concealed carry makes citizens safer.

Judge Counsell concluded:Finally, in a vindication of Alan Gura's argument in McDonald regarding the Privileges or Immunities Clause, Judge Counsell applied the reasoning in Justice Thomas's McDonald concurrence to this case. He said the right to keep and bear arms is a fundamental right and must not be abridged by state laws such as Section 421.23. He then found this law also violated the Second and Fourteenth Amendments of the U. S. Constitution and ordered Schultz's case dismissed.

Cases that have advanced our civil rights have taken two primary forms. First, there is the strategic civil rights litigation approach that Alan Gura and the Second Amendment Foundation are taking advancing gun rights. It involves carefully screening the plaintiffs, picking your battles, suing in the proper venue, seeking good precedents, and then building on those wins. This was the same approach that the NAACP Legal Defense Fund took starting in the 1930s and which led to many civil rights victories including the end to segregation by race. Likewise, Lamda Legal is also following this same approach in their efforts to expand rights for gays and lesbians.

Then there are the cases, usually in criminal court, where a civil rights victory is achieved quite unexpectedly with a less than ideal defendant. Looking at some of the great Supreme Court civil rights cases of the 1960s that were won this way two come immediately to mind: Miranda v. Arizona and Gideon v. Wainwright. In the former case, Ernesto Miranda was a sexual deviant, robber, and rapist who was convicted of raping an 18-year old girl after he confessed to the crime under interrogation. Miranda made his confession without being advised of his right to an attorney as well as his right to remain silent. His win for civil rights in the Supreme Court secured the "Miranda Warning" which requires that a person who is arrested be advised of their right to an attorney and to remain silent.

In the latter, and to my mind, more important case, a poor drifter named Clarence Earl Gideon was convicted of felony theft after representing himself in court because he couldn't afford to hire an attorney. From his cell at the Florida State Prison he sent his handwritten appeal to the Supreme Court and they accepted it. The Court assigned future Supreme Court Justice Abe Fortas as his attorney and he won in a 9-0 decision. Gideon's win led to court-appointed attorneys and public defenders for the indigent. While there can be some debate about the quality of some of these attorneys, a poor man is no longer forced to conduct his own legal defense without an attorney.

Joshua Schultz, the defendant in the Wisconsin concealed carry case, is not a choir boy. According to the Wisconsin Circuit Court Access System, he has been found guilty of everything from drunk driving to disorderly conduct and theft. He is currently under a temporary restraining order for domestic spousal abuse. Nonetheless, due to Clarence Gideon's earlier win, Mr. Schultz was represented by an assistant state public defender who was energetic enough and smart enough to see the constitutional conflicts inherent in Wisconsin's ban on concealed carry.

Out of this has come a win for civil rights in at least one part of Wisconsin.

http://onlygunsandmoney.blogspot.com/2010/10/state-of-concealed-carry-in-state-of.html

The decision: http://www.examiner.com/wisconsin-gun-rights-in-milwaukee/wis-stat-941-23-unconstitutional

Wis. Stat. 941.23 unconstitutional

Gene German

• Wisconsin Gun Rights Examiner
• October 14th, 2010 12:56 pm CT

Sometimes life is funny. I doubt average people get out of bed in the morning thinking to them self, “today I think I’ll change the world”.
Average people however, do change the world.

The open carry effort in Wisconsin began in March of 2007 in a hotel meeting room in Sheboygan. Dick Baker who is an average guy had led the Wisconsin Concealed Carry Association for many years and he was disappointed Jim Doyle had been reelected. Dick was thinking it would be another four years before we had a chance to pass a concealed carry law. Dick did not recognize just how valuable Jim Doyle’s veto’s of two conceal carry bills were to changing Wisconsin and guaranteeing our carry rights.

We also had Wis. Stat 941.23 (the states open carry law), the Wisconsin Constitution Article 1, Section 25 (which protected the law per the Hamdan decision), and J B VanHollen as the new Attorney General.

Oh yes, we also had selective members of the law enforcement community with their elitist arrogance and contempt for and harassment of, law abiding citizens who wished to exercise their right to be safe.

Thousands of Wisconsin citizens have been trained since 2004 how to responsible carry and use lethal force. This knowledge had become extinct because the ability to carry had been destroyed by the elitist law enforcers and politicians.

These things taken as a whole were all we needed to start the wheels in motion in the right direction. The legislature could just sit this one out.

As people began to once again learn how to carry, the law enforcers responded as expected with disorderly conduct charges. Brad Krause was the first person to be arrested for disorderly conduct while armed and was tried by West Allis for being lawfully armed. The court however did not agree with these charges and Krause was found not guilty. The open carry Jennie was finally out of the bottle.

After much encouragement, the Attorney General finally came out and issued a memo to instruct law enforcers that open carry was indeed lawful and not itself disorderly conduct.

Thank God for the Madison police. Apparently unbeknownst to them, another concealed carry case (Wisconsin v. Joshua D. Schultz) as working it’s way through the court system in Clark county which challenged Wis. Stat. 941.23 as unconstitutional. When the Madison police retrospectively issued disorderly conduct charges against what has become known as “The Madison Five” for patronizing Culvers while lawfully armed, they really proved Schultz’s case for him. Police powers were being used for the mildest of reasons (someone was “disturbed” by just the sight of a gun) to destroy a persons constitutionally protected right. Today, Wis. Stat. 941.23 was ruled unconstitutional.

Wisconsin has taken a giant step to return to 1871, the year before Wis. Stat. 941.23 was enacted and when citizens could carry a weapon any way they wished. For now this decision applies only to Clark county but it is expected to be appealed to the Wisconsin Supreme court. If upheld this case will make all of Wisconsin a Constitutional carry state. Lawful citizens may then carry weapons either openly or concealed, subject to a few other restrictions.

Enjoy.

STATE OF WISCONSIN CIRCUIT COURT CLARK COUNTY
STATE OF WISCONSIN
Plaintiff/Petitioner DECISION GRANTING MOTION TO DISMISS
vs.
JOSHUA D. SCHULTZ Case No. 10-CM-138
Defendant/Respondent

The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats. Defendant challenges the statute as unconstitutional “on its face, and because the statute is overbroad, abridges his privileges or immunities as a United States citizen, and violates his due process rights as guaranteed by the Second and Fourteenth Amendments.” Def. Brief, p. 2.

Analysis of this issue starts with the United States Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago No. 08-1521 (U.S. June 28, 2010). Unfortunately, neither of these cases stated with certainty the level of scrutiny that should be applied to laws that infringe upon a citizen’s Second Amendment rights. This court concludes that a strict scrutiny test should be applied in evaluating the statute in question here, section 941.23. The court reaches this conclusion because sec. 941.23 absolutely prohibits the carrying of concealed weapons for all persons in Wisconsin, except “peace officers.” The statute flatly prohibits a certain behavior/activity. It thus takes away what this court understands Heller and McDonald to deem an individual and fundamental right. Strict scrutiny arises when a fundamental constitutional right, as those listed in the Bill of Rights, is infringed, and that Right has been deemed to apply to the States by virtue of the Fourteenth Amendment. United States v. Carolene, 304 U.S. 144 (1938). To pass strict scrutiny, sec. 941.23 must:
1. be justified by a compelling governmental interest;
2. be narrowly tailored to achieve that interest; and
3. be the least restrictive means for achieving that interest.

The apparent government interest in prohibiting the carrying of concealed weapons is the State’s “police power to protect the health, safety, and welfare of its citizens.” See State v. Hamdan, 264 Wis. 2d 433, 463 (2003). Promotion of health, safety and welfare of citizens is an appropriate use of the police power. However, the court must proceed to answer the remaining questions to determine if the power is appropriately used here.

Is sec. 941.23 narrowly tailored to achieve the State’s interest? The answer is clearly “no.” As stated in Hamdan, “the statute prohibits any person, except a peace officer, from carrying a concealed weapon, regardless of the circumstances, including pursuit of one of the lawful purposes enumerated in Article I, Section 25 [of the Wisconsin Constitution].” Id. at p. 465. Hamdan went on to state that “we have described Wisconsin’s exceptionally restrictive scheme to show how it heightens the conflict between [sec. 941.23] and the rights in Article I, Section 25 [of the Wisconsin Constitution]” (Id., at p. 470, emphasis added) and, this court would add, the conflict with the fundamental right set forth in the Second Amendment.

Thus, the Wisconsin Supreme Court has called sec. 941.23 an “exceptionally restrictive scheme.” Such a scheme cannot in any sense be considered as “narrowly tailored.” Justice N. Patrick Crooks in his concurrence/dissent to Hamdan stated:

“The majority in this case improperly reads exceptions into Wis. Stat. § 941.23 in order to hold that it is constitutional. Such exceptions to the statute should be not be made by this court, but by the legislature. Looking at the statute itself, I conclude that Wis. Stat. § 941.23 has become unconstitutional with the passage of Article I, Section 25 of the Wisconsin Constitution…. If the statute does not conform to the Wisconsin Constitution, as amended, then the statute is unconstitutional.”

Hamdan, concurrence, at p. 494. Justice Crooks did not use the phrase, but he is in essence saying that courts should not engage in judicial activism—the philosophy of judicial decision making whereby judges’ decisions are not based on the law as it is written, whether it be a regulation, statute or the Constitution itself but instead are based on personal views, political views or perceptions of desired public policy. Judicial activism substitutes the view of the courts for the view of the people as expressed through their elected legislature. “Policy decisions affecting the statute’s constitutionality should be made in typical legislative fashion.” Id., at p. 496.

When this court examines this case in view of Hamdan as affected by Heller and McDonald, Justice Crooks’ analysis prevails—leading to the conclusion that sec. 941.23 in not narrowly tailored and therefore is unconstitutional. “A statute which under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional.” Heller, p. 56, n. 27. “The breadth of [sec. 941.23] is incompatible with the broad constitutional right to bear arms. Its prohibition extends to anyone at any time and, therefore, improperly an unnecessarily impinges on a person’s right to bear arms ‘for security, defense, hunting, recreation or any other lawful purpose.’ … [The statute] logically extends to such a wide variety of scenarios that it leaves no ‘open ample alternative channels by which the citizen may exercise the right at issue.’” Hamdan, concurrence,pp. 495-496.

Heller and McDonald, recognize the fundamental and personal right written, in plain English, in the Second Amendment. These two decisions reinforce the need for the sec. 941.23 to be narrowly tailored and, in addition, the least restrictive means of the State achieving its goal. The statute is neither. As written, sec. 941.23:
The court could continue this list ad infinitum. The point of the list is that it shows the over breadth and over reach of sec. 941.23. The statute applies a leaden blanket to when silk would suffice. Persons on the list, and many others, are faced with a Hobson’s choice—go unarmed (thus not able to act in self defense), violate the law (and risk jail/fines) or (as some would argue) carry openly. However, the argument that one could carry or display the weapon openly (holding it in the open, in a visible holster, or on the wall in plain sight) is not a realistic alternative. Even the Hamdan majority said:

“Such practices would alert criminals to the presence of the weapon and frighten friends and customers. Likewise, requiring the gun owner to leave a handgun in plain view in his or her store so that he or she avoids a CCW charge fails the litmus test of common sense. We do not think it is necessary to spell out the dangers created by making firearms more accessible to children, to assailants, to strangers, and to guests. In fact, leaving a firearm in the open could expose a gun owner to other liability, both criminal and civil. See Wis. Stat. §§ 948.55 (prohibiting the leaving of a loaded firearm within the reach or easy access of a child) and 947.01 (prohibiting disorderly conduct).

There is no dispute that most storeowners have the right to possess a firearm. As a practical matter, the storeowner who keeps a firearm for security must have the gun within easy reach. Requiring a storeowner to openly display weapons as the only available means of exercising the right to keep and bear arms for security is impractical, unsettling, and possibly dangerous. If the State prosecutes a storeowner for having a concealed weapon within easy reach, it is strongly discouraging the use of firearms for security and is practically nullifying the right to do so. Such a prosecution is very likely to impair the constitutional right to bear arms for security.”

Hamdan, at pp. 481-482. Thus, the Hamdan majority recognized that open carry or open display was not and is not a feasible alternative to concealed carry. Open carry or display could result in the gun owner violating other laws regarding access of minors to guns or result in overzealous police and/or prosecutors charging disorderly conduct under sec. 947.01, Wis. Stats., for (what this court considers) the lawful open carrying and display of handguns. The argument that this will not happen with reasonable prosecutors has already been proven wrong.

See the Wisconsin State Journal article, at the following citation: http://host.madison.com/wsj/news/lo...cle_26e20b12-c6b4-11df-9b03-001cc4c002e0.html This article details how five men were issued disorderly conduct citations for eating at a Culver’s restaurant while having firearms in holsters in plain view. The Hamdan court, apparently, was prophetic on this issue.

The Hamdan decision also shows that an absolute ban on concealed carry is not least restrictive. At the time Hamdan was written, Wisconsin was “one of only six states that generally disallow any class of ordinary citizens to lawfully carry concealed weapons.” As of now, Wisconsin is one of only two States that do not permit the carrying of concealed weapons under any circumstances. Halbrook, Firearms Law Deskbook, 2009-2010 Edition, Appendix A. Thus when Hamdan was written there were 44 States, and now there are 48 States, that have an alternative that is less restrictive than Wisconsin’s absolute prohibition. Despite the varying concealed carry laws allowing “ordinary” citizens to carry concealed weapons in 48 States, there have been no shootouts in town squares, no mass vigilante shootings or other violent outbreaks attributable to allowed concealed carry. There is a strong argument that guns, and concealed carry of them, makes citizens safer. See John Lott, More Guns, Less Crime, Third Edition, 2010, The University of Chicago Press.

In 48 States, less restrictive possession, conceal or permit statutes allow citizens to carry concealed weapons. Many of those statutes were analyzed in Hamdan itself. See Hamdan, p. 466, n. 22. This court will not repeat that analysis, other than to say that it clearly demonstrates the feasibility and functionality of less restrictive alternatives.

Thus, while the State has an interest in public safety, sec. 941.23 is unconstitutional because it is not narrowly tailored to achieve the State’s interest nor is it the least restrictive means for achieving that interest.

The parties have not addressed the issue of whether under Hamdan, defendant meets the Hamdan judicial exception to the sec. 941.23 concealed carry prohibition for weapons kept at home or place of business. The complaint alleges that defendant was in a private apartment when a deputy opened the door and defendant immediately said “Hey relax, I got a knife here, all I want to do is smoke a cigarette.” The deputy then asked where the knife was and defendant pulled up his shirt and showed it to the deputy. As the parties addressed only the broader constitutional issue, so has this court.

In addition, as noted above, this court agrees with Justice Clarence Thomas’s McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged by any State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment.

In sum, sec. 941.23 is unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution.

The clerk’s office is directed to prepare an order of dismissal based on this decision.

The order of dismissal is considered by the court to be a final order for purposes of any appeal.
Dated: October 14, 2010
By the Court:
__________________________________
Jon M. Counsell
Circuit Court Judge

http://www.examiner.com/wisconsin-gun-rights-in-milwaukee/wis-stat-941-23-unconstitutional

Thanks for posting that text.

We all agree withthedecision, so we'll skip the things we like. Where the decision has issues is with the fairly casual application of strict scrutiny. This court waves it's hand at an issue tying up federal circuit courts right now. That said, this application does seem "obvious" to most everyone when applied against other enumerated rights.

Another thing that worries me here is the public defender's willingness to risk his client's freedom to chase a risky 2A defense. The man was convicted of having a concealed knife in his apartment.

That is low hanging fruit right there with or without 2A involved. If that kind of logic held, anyone in Wisconsin with a grill, some bratwurst and a sharp knife in his apron to test for that proper level of "done" is a criminal. Imean, how would one know whenthe right mixture of boiled beerand grilled meat is met?

The judge calls this out, as he should. Seeing this boils my blood because it suggests a lawyer playing games withthis guy's case. Public defender's do not a free pass to play experiments just because their clients cannot afford to choose otherwise.

Anywho...This case does something we needed - a case tailor made for other organizations to step in and make the 2A case and the in-home case.

Patrick said:

Thanks for posting that text.

We all agree withthedecision, so we'll skip the things we like. Where the decision has issues is with the fairly casual application of strict scrutiny. This court waves it's hand at an issue tying up federal circuit courts right now. That said, this application does seem "obvious" to most everyone when applied against other enumerated rights.

Another thing that worries me here is the public defender's willingness to risk his client's freedom to chase a risky 2A defense. The man was convicted of having a concealed knife in his apartment.

That is low hanging fruit right there with or without 2A involved. If that kind of logic held, anyone in Wisconsin with a grill, some bratwurst and a sharp knife in his apron to test for that proper level of "done" is a criminal. I mean, how would one know when the right mixture of boiled beer and grilled meat is met?

The judge calls this out, as he should. Seeing this boils my blood because it suggests a lawyer playing games with this guy's case. Public defender's do not a free pass to play experiments just because their clients cannot afford to choose otherwise.

Anywho...This case does something we needed - a case tailor made for other organizations to step in and make the 2A case and the in-home case.

Click to expand...

The beer, brats and 'I love the Packers' case law is well established and there is no fighting it....along with the 'I hate Chicago' and especially Chicago Bears defense...

Thanks also from me Ezliving...

krucam said:

The beer, brats and 'I love the Packers' case law is well established and there is no fighting it....along with the 'I hate Chicago' and especially Chicago Bears defense...

Thanks also from me Ezliving...

Click to expand...

Consider yourself lucky - I just flew in from Chicago and I'm sure they scan Internet posts for that kind of treacherous language. They might have come for you if I had read that post while still in Chi-Town.

As it stands, MD has enough bad teams that keeping track of the haters would require an entire agency. Ever wonder where why the MSP budget is so high?

Patrick said:

Consider yourself lucky - I just flew in from Chicago and I'm sure they scan Internet posts for that kind of treacherous language. They might have come for you if I had read that post while still in Chi-Town.

As it stands, MD has enough bad teams that keeping track of the haters would require an entire agency. Ever wonder where why the MSP budget is so high?

Click to expand...

Not trying to derail this threads intention, BUT...Bears v Packers is the oldest rivalry in the NFL. Redskins v Cowboys doesn't come close. Packer stadium "was" (maybe still is, too lazy to look it up) publicly owned by the community. Throw backs, all of them. I respect the Pack and will root for them UNLESS they're playing the Bears and UNLESS they're threatening the Bears in the standings which used to be the case....

My family in Chicago could care less about sports and considerably less about guns so none of them will see this...

[QUOTEMy family in Chicago could care less about sports and considerably less about guns so none of them will see this...][/QUOTE]

Daley knows.

On a serious note, five folks including an ER doc are all making serious plans to come to MD for handgun basics. Once I get them up to snuff on basics they want to take course or two in defensive hangun.

The way people in Chicago see it - Daley's laws are toast and everyone knows it. They say if the city had a leg to stand on it would have gone after all the people who have defended themselves recently. Apparently there are more than we have been following.

So some are getting the guns and saying to he'll with the permits. Not saying the people coming this way are doing that - just saying some people are. And none of them are rednecks. Classic liberals all the way.

This is how we stop gun control.