The State of Concealed Carry in the State of Wisconsin

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:

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.

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:

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.

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.


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