Shotgun News, July 1, 2006

The Wisconsin Supreme Court Defines “Reasonable”

Regular readers of my column know that Wisconsin is one of the two states left that does not allow concealed carry of a firearm. I don't mean that it has a concealed weapon permit law that is abusive, such as New York or California—Wisconsin's law just prohibits concealed carry.

Wisconsin's voters in 1998 added a right to keep and bear arms provision to the state constitution, and this has led to several interesting court cases. Just under three years ago, I had an article here discussing two of these cases. In both cases, people charged with violating Wisconsin's ban on concealed carry argued that the law was contrary to the 1998 RKBA amendment to the state constitution.

In one of those cases, State v. Cole (2003), the defendant, who was arrested with two handguns concealed in his car, and carrying marijuana, lost. The Wisconsin Supreme Court decided that the right guaranteed by the state constitution was not unlimited. Mr. Cole's reason for wanting to be armed—having been attacked in that neighborhood before made him afraid—was legitimate. However, the Wisconsin Supreme Court decided that there was also a legitimate public safety interest in discouraging concealed carry. In deciding which interest was more important--”balancing” interests, as lawyers like to say, public safety interest beat Mr. Cole's personal safety interest. It's just a guess, from reading the decision, but I suspect that Mr. Cole was someone well known to the local police—which might explain the results.

The other case, State v. Hamadan (2003), went through much the same “balancing” act—but Mr. Hamadan won his case. Hamadan was the operator of a small store in a rough neighborhood—rough enough that Mr. Hamadan had been robbed four times in six years—and had killed one of those robbers. However, when the police stepped in one night to look into some licensing questions (not gun licensing), they discovered that he was carrying a concealed pistol in his pocket—and charged him. Imagine that—a shopkeeper with a long history of being robbed, carrying a pistol in his store![1]

I will confess, as I mentioned in my previous article about the Cole and Hamadan decisions, that I find the logic used by the Wisconsin Supreme Court in these cases to be disturbing. These decisions drew no clear line distinguishing why Mr. Hamadan's right to carry was protected, but Mr. Cole's right was not. The latest decision of the Wisconsin Supreme Court about the limits of the right to bear arms, handed down in May of 2006, still doesn't clarify exactly what that right protects—but when you read the facts of the case, you start to appreciate that legal cases aren't just abstract principles. Often, they are unpleasant collections of facts that remind you that sometimes, you wish that we had better defendants when challenging these laws.

The most recent case is State v. Fisher (2006), decided 4-3. Like the Cole and Hamadan cases, the defendant, Scott Fisher, won in a lower court, and the state of Wisconsin appealed the decision. Like Hamadan, Fisher ran a small business—a tavern in Black River Falls. But like Cole, Fisher's legal problems involved a handgun concealed in his car, which came to the attention of the authorities because someone stole Fisher's car. Fisher, being a good citizen, informed the police that there were guns in the stolen car—and this is why the police charged Fisher.

Now, Fisher had a pretty plausible argument—superficially like Hamadan's argument. Fisher regularly transported large quantities of cash after closing the tavern each night. Sometimes, the quantities of money were substantial, and the money went to the bank. Sometimes the amount was small, and Fisher just took it home.

Where Fisher's position was different from Hamadan, however, was that Fisher had never been robbed, and while there had been serious criminal attacks on other merchants in the general area, Black River Falls was not a hotbed of violent crime. The Wisconsin Supreme Court therefore decided that Fisher was not in imminent danger that justified him concealing a gun in his car.

Perhaps more importantly, the Court decided that the government's public safety interest in prohibiting concealed carry, while weak in one's home or business, is very strong in a motor vehicle, on the grounds that, “Of particular concern is the potential danger to law enforcement officers if an individual is carrying a concealed weapon during the course of a traffic stop. Given the frequency of contacts between law enforcement and motorists, individuals carrying concealed weapons in motor vehicles present a greater overall risk to law enforcement than do individuals carrying concealed weapons in their homes or privately-owned businesses.”

Huh? This is where I start to scratch my head. It is true that police pull motorists over every day for traffic tickets, drunk driving, and many other offenses. But police also go to people's houses quite frequently to respond to domestic violence disputes, and serving arrest or search warrants. I know that police officers are at much higher risk of being injured or killed responding to a domestic violence call than giving a speeding ticket. If the Court had some evidence that police officers have a lot more to fear from a traffic stop than from a domestic violence call, they should have presented the evidence.

The Court did not completely rule out the possibility that the right to bear arms could include concealed carry in a vehicle—but the language makes it clear that these circumstances will be relatively rare. “Stated another way, only in extraordinary circumstances will an individual carrying a concealed weapon in a vehicle be able to demonstrate that his or her interest in the right to keep and bear arms for security substantially outweighs the state's interest in prohibiting that individual from carrying a concealed weapon in his or her motor vehicle. If a defendant reasonably believes that he or she is actually confronted with a threat of bodily harm or death and that carrying a concealed weapon is necessary for protection from the threat, extraordinary circumstances would be present.”

I'm a facts and figures kind of guy. If you tell me that A is more important than B, I generally look for some way to quantify why A is more important that B. What does A cost? What does B cost? On top of Cole and Hamadan, State v. Fisher (2006) sounds like the majority on the Wisconsin Supreme Court arbitrarily decided which people have a good reason to carry concealed under the Wisconsin Constitution's right to keep and bear arms provision, and which do not. There's only one real fix for that—Wisconsin's legislature should write a concealed weapon permit law that clearly defines who may carry concealed. Right now, a Wisconsin shopkeeper who carried a concealed handgun in his shop—then carried it to his car, while transporting a large quantity of cash—could argue, based on the Hamadan and Fisher cases that he had the Wisconsin Supreme Court on his side. The police could argue, “You are breaking the law.” These decisions don't give a clear answer.

Of course, if you live in Wisconsin, or you read my column regularly, you already know that this has been a continuing struggle. The legislature keeps passing such laws—and the governor keeps vetoing them. In the meantime, the Wisconsin Supreme Court, in the words of Indiana Jones, is “just making it up as I go along.”

Now, I will agree that there are aspects to Fisher's situation that do not ring quite right—or as the Court put it, “[W]e perceive a dissonance between certain facts in this case and Fisher's asserted concern for his security under the circumstances. Presumably, one of the times that Fisher would have been most vulnerable was when he was closing his tavern for the night or when he was transporting cash from the tavern to his vehicle. Nothing in his testimony suggested that he kept a concealed weapon with him when moving between the tavern and his vehicle. Also relevant to Fisher's asserted interest in security is that only one-and-one-half weeks before his arrest, he was willing to leave three loaded firearms in his running, unlocked vehicle unattended outside his tavern at 2:45 a.m.”[2] This doesn't win any awards for applying common sense to a serious security problem.

As the Court also pointed out, the theft of Fisher's car with three loaded firearms in it presents a real public safety concern. I don't think that we have to go as far as Massachusetts, which prohibits licensees from leaving guns in an unoccupied car, but if you are trying to get a state supreme court to overturn a state law banning concealed carry, these aren't the sort of facts that are going to win you a lot of friends.

The dissenting opinion, by Justice Crooks, emphasized that the real flaw isn't the facts of this case, but that the right to keep and bear arms provision is very broadly worded—and the ban on concealed carry is also very broad. Crooks observed that the Wisconsin Supreme Court in Hamadan created a narrow exception to the state's ban on concealed carry, rather than admit that there was a conflict there that required a change in the law. “This court cannot create exceptions to [the concealed carry ban] to cure that statute's constitutional defects. That is the job of the Wisconsin Legislature.”[3]

If you live in Wisconsin, these are the words that you need to pass on to your elected representatives, including your governor. As things now stand, I can see a number of situations where a person might be legitimately unsure of whether they are exercising their right to keep and bear arms for self-defense, or are breaking Wisconsin's ban on concealed carry. It is time for Wisconsin to join the 48 other states that have at least some provision legalizing concealed carry.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.

[1] Clayton E. Cramer, “Victory on Many Fronts,” Shotgun News, September 1, 2003, 18-20, http://www.claytoncramer.com/Victory On Many Fronts.pdf, last accessed May 20, 2006.

[3] State v. Fisher, 2004AP2989-CR (2006) (J. Crooks, dissenting), http://www.courts.state.wi.us/sc/opinion/DisplayDocument.html?content=html&seqNo=25165, last accessed May 20, 2006.