Concealed Carry & Strict Scrutiny

This article covers a recent decision that has run like wildfire through the Internet and which you need to understand.  It is a circuit court judge’s decision from Wisconsin, State v. Schultz (2010).  You need to understand it so that you do not get unrealistically high expectations for what it means.  I do not expect it to survive appeal—but even this is an amazing sign of how rapidly the Second Amendment has gone from the embarrassing crazy aunt in the basement to a co-equal part of the Bill of Rights.

The details of how Joshua D. Schulz came to the attention of the police are not disclosed in the decision, and my attempts to find out those details from other sources have not been successful.  The bare facts of the decision tell us that he was arrested for carrying a concealed knife under his shirt, and charged under Wisconsin’s complete ban on concealed carry.1  (Wisconsin, along with Illinois, is one of two remaining states that still completely prohibit concealed carry—with not even a discretionary permit issuance system.)
Wisconsin’s courts have been grappling with the question of what the right to keep and bear arms means since 2003, largely because of Art. I, sec. 25 of the Wisconsin Constitution, added by the voters of that state in 1998.2  The decisions of the Wisconsin courts have been less than ideal, at least in part because those decisions have taken a fairly narrow view of what that right protects.  With good reason, the Wisconsin courts have been reluctant to assume that the voters intended to protect concealed carry.  The reason is that the voters added a right to keep and bear arms to the state constitution, but did not have their legislators remove the ban on concealed carry.  It is therefore unlikely that the voters intended the right to the state constitution to overturn the existing concealed carry ban.
In this decision, handed down by Circuit Court Judge Jon M. Counsell, the Second Amendment is the basis, not the Wisconsin Constitution’s guarantee.  McDonald v. Chicago (2010) found that the Fourteenth Amendment applied the Second Amendment to the states, overturning a Chicago ban on possession of handguns in the home.  Judge Counsell thus asked the question as to whether the same logic applied to concealed carrying of arms outside the home.3

Here is the where the decision makes a bit nervous—and why I suspect that it is going to be overturned on appeal.  The defendant argued that the Wisconsin concealed carry ban violated his Second Amendment rights through the “privileges or immunities” clause of the Fourteenth Amendment.  While Justice Thomas’s concurring opinion in McDonald took that position, the rest of the justices on our side took the less intellectually satisfying but less radical position that the Second Amendment passed through the “due process” clause of the Fourteenth Amendment.  

As I have written previously, Thomas’s position is the one that Alan Gura argued before the Court, and is certainly historically accurate.  To make such a ruling, however, would reopen a hornet’s nest of previously decided precedents, creating utter chaos in the existing court system.  (You and I might consider “utter chaos” in the court system a feature; not surprisingly, the justices on the court see that as a bug.)

Judge Counsell not only took Thomas’s position—that the right flows through the “privileges or immunities” clause,4 but went one better—holding that strict scrutiny applies.  Strict scrutiny is a very demanding test.  It says that for the government to justify a law regulating a behavior (in this case, carrying a concealed weapon), it must demonstrate that all three of the following apply:
  1. 1.A “compelling governmental interest” in what is being regulated.  Public safety?  That’s a compelling governmental interest.  Making everyone’s front yards pretty?  Maybe not so much. 

  2. 2.The law is “narrowly tailored to achieve that interest.”  The law is like Goldilocks and the porridge—neither too hot nor too cold.  It has to affect those people who are the legitimate governmental interest, but not others.  A concealed carry ban would have to disarm people likely to commit crimes—but not others. 

  3. 3.The law is “the least restrictive means for achieving that interest.”  That means that for the law to be valid, the government cannot come up with any other method that achieves the legitimate public safety concern that is less restrictive.  (You know: like locking up criminals the first time they commit a violent felony.)5 
Judge Counsell argued that the only choices are: go unarmed; face arrest and fines for carrying concealed; or carrying openly.  Then Judge Counsell points out that while open carry is technically lawful in Wisconsin, enough people have been arrested for open carry that practically speaking, this is not an option.6

I am pretty confident that Judge Counsell’s decision is going to be overturned on appeal because he relied on Justice Thomas’s argument based on “privileges or immunities.”  In addition, a higher court is probably going to overturn it on the “least restrictive alternative” argument as well.  There is an argument that a non-discretionary concealed weapon permit law provides a regulatory process that disarms those who are a threat to public safety—while still allowing the vast majority of Wisconsin residents to carry concealed.  (And there is a counterargument that says that requiring a permit violates the “least restrictive means” test.)

Wisconsin is a weird state—and not just because of the cheese wedge hats that some wear to football games.  Wisconsin’s legislature has at least twice passed a non-discretionary concealed carry permit law—and both times Governor Doyle vetoed it.  In one case, a sponsor of the bill voted against his own bill during a veto override vote, to avoid embarrassing Doyle.  (I would think it would embarrass the sponsor to oppose his own bill.)  In the current race to pick a new governor for Wisconsin, the issue of signing a concealed carry permit law has again come up, with the Republican candidate saying he will sign it—and the Democratic candidate saying that such a law presents “concerns.”7

Now, if you live in the rest of the United States, you are probably wondering why I have devoted most of a column to one state.  As I mentioned earlier, there are two states that have no concealed weapon permit process—not even an abusively administered process, like California, New York, or Massachusetts.  Wisconsin is one of the two states.  Yes, I want to see the two weirdo states (Wisconsin and Illinois) join the fold.

Now, what about those states that have permits, but where authorities abuse their authority about issuing permits?  I have not forgotten about them.  California used to be my home, and so I am very concerned what goes on there.  The Calguns Foundation has been starting to work on this problem.  As I have mentioned in previous articles, there are lawsuits already under way, challenging the discretionary nature of the California permit law.  

Calguns Foundation seems to be taking a somewhat different approach.  They have obtained copies of all concealed weapon permit applications, and the outcomes, from all 58 county sheriffs from January 1, 2007 forward.  Most of the abuse in permit issuance in California is based on whether you have a “need” to carry a concealed handgun.  By making the accepted “need” statements visible, it opens the door for applicants with similar needs to file similar applications.8
Let me be very blunt.  Many sheriffs in California, especially in the rural counties, are pretty good about issuing permits.  In the urban areas (where you might actually need to carry a gun), permits are often issued under profoundly shady circumstances.9  Political influence gets some people permits—and in one county where I used to live, a convicted felon who had contributed to the sheriff’s reelection campaign was issued a permit before the California Department of Justice completed the background check.  (The felony?  Child molestation.)  

Am I expecting sheriffs who issue for sleazy reasons to suddenly issue a license to someone who has an equally valid reason—but isn’t a political mover and shaker?  No.  But I do expect that if enough applications get rejected, Calguns Foundation will have a very effective basis for filing an equal protection clause claim against that sheriff—and using the due process clause of the Fourteenth Amendment to get every Californian an equal shake at a permit.  At some point, the courts will either strike down the existing permit system for violating the Second Amendment, or force the legislature to pass a non-discretionary permit law.

These are glorious times to be a gun rights activist.  We have the enemy on the run.


1 State v. Schulz, Case No. 10-CM-138 (2010),, last accessed October 24, 2010.

2 Eugene Volokh, “State Constitutional Rights to Keep and Bear Arms,” Texas Review of Law & Politics, 11:204.

3 State v. Schulz, Ibid., 1.

4 Ibid., 5.

5 Ibid., 1-2.

6 Ibid., 3-4.

7 Charles Davis, “Wisconsin governor election may decide concealed handgun carry issue,” Green Bay (Wisc.) Press-Gazette, October 14, 2010,, last accessed October 24, 2010.

8 Calguns Foundation, “Calguns Foundation Announces Firearms Carry Licensing Compliance and Education Program,”, October 18, 2010, last accessed October 24, 2010.

9 “The CCW Expose Project,”, last accessed October 24, 2010.