CCW
statute trumps right to bear arms
By
David Ziemer
Wisconsin Law Journal
May
24, 2006
| What
the court held Case:
State of Wisconsin v. Scott K. Fisher, 2004AP2989-CR. Issue:
Does a business owner who makes large cash deposits carry a loaded gun in his
car for security purposes, have a constitutional right to carry a concealed weapon? Holding:
No. The state's interest in enforcing sec. 941.23 is not substantially outweighed
by the constitutional right. Counsel:
Appellant: Jeffrey J. Kassel; for Respondent, Paul B. Millis. |
The Wisconsin
Constitution doesn’t guarantee the right to carry a firearm in a vehicle
for protection, the Wisconsin Supreme Court held on May 17.
Scott
K. Fisher was a tavern owner in Black River Falls who kept a loaded gun in the
center console of his vehicle. He was arrested for carrying a concealed weapon
(CCW) at approximately 4 p.m., while he was on his way to McDonald’s and
was running personal errands.
Fisher
moved to dismiss the criminal complaint against him, asserting that he kept the
gun for security purposes because he routinely transported large amounts of cash
generated by his business.
Jackson
County Circuit Court Judge John A. Damon granted the motion, holding that the
concealed carry statute, sec. 941.23, is unconstitutional as applied to Fisher,
because Article I, Section 25, of the Wisconsin Constitution bars the prosecution.
The
State appealed, and the Supreme Court accepted certification of the case from
the court of appeals. In a decision by Justice Ann Walsh Bradley, the court reversed.
Justice
N. Patrick Crooks wrote a dissent, joined in part by Justices Patience Drake Roggensack
and Jon P. Wilcox.
Art.
I, sec. 25 of the Wisconsin Constitution was adopted in November 1998, and reads
as follows: “The people have the right to keep and bear arms for security,
defense, hunting, recreation or any other lawful purpose.”
The
court has previously addressed the right to bear arms in two cases decided the
same day — State v. Cole, 2003 WI 112, 264 Wis.2d 520, 665 N.W.2d 328, and
State v. Hamdan, 2003 WI 113, 264 N.W.2d 433, 665 N.W.2d 785.
In
Cole, the court held that the CCW statute is not facially unconstitutional, notwithstanding
the enactment of art. I, sec. 25., nor was it unconstitutional as applied to Cole,
who possessed two pistols in a motor vehicle, and admitted that he did not possess
the weapons in response to any “specific or imminent threat.”
In
Hamdan, the court held the CCW statute unconstitutional as applied to a store
owner who kept a firearm for protection in his store, which was located in a high
crime area. During the six years prior to Hamdan’s offense, the store was
the target of four armed robberies, three of which were successful, and two fatal
shootings. In the unsuccessful armed robbery, Hamdan shot and killed the perpetrator.
Applying
the two cases to Fisher’s case, the Supreme Court held that the CCW statute
was not unconstitutional as applied to him.
The
court acknowledged that, as the owner of a tavern, Fisher often had large sums
of cash on hand that needed to be deposited in the bank. Nevertheless, the court
concluded his position was distinguishable from that in Hamdan.
The
court concluded, “Fisher’s tavern … cannot realistically be considered
to be situated in a high-crime neighborhood. … Such a characterization would
erase any meaningful distinction between a truly high-crime area and any other
area.”
The
court added, “Although a defendant may not need to establish facts exactly
like those in Hamdan in order to demonstrate such a substantial interest, Fisher’s
circumstances are a far cry from Hamdan’s.”
The
court also noted what it called, “a dissonance between certain facts in this
case and Fisher’s asserted concern for his security under the circumstances.”
The
court noted that Fisher always kept the gun in the vehicle, and never brought
it into the tavern, even though he would have been most vulnerable when closing
his tavern for the night or transporting cash from the tavern to his vehicle.
In
addition, about 10 days before the arrest, at 2:45 a.m., Fisher had left three
loaded firearms in his running, unlocked vehicle unattended outside his tavern.
The
court also rejected Fisher’s argument that, as a law-abiding citizen with
no history of criminal conduct, the state’s interest in enforcing the CCW
statute is diminished.
The
court concluded, “The facts here amount to far less than a showing that he
had any significant interest in exercising his right to keep and bear arms for
security purposes by carrying a concealed weapon in his vehicle. At the time of
his arrest, it was 4:00 in the afternoon in Black River Falls, and he was engaged
in personal errands and on his way to McDonald’s. Not only was he carrying
a concealed weapon in a location that is not one of the ‘apex’ locations
identified in Hamdan, but also the other specific circumstances of his case are
not particularly compelling.”
Relying
on Cole, the court also rejected Fisher’s facial challenge to the statute.
The
court reasoned, “Were this court to so easily recognize a motor vehicle as
an extension of one’s privately-owned business, the result would be a significant
retreat from Cole’s holding that ‘the right to bear arms is clearly
not rendered illusory by prohibiting an individual from keeping a loaded weapon
hidden either in a glove compartment or under the front seat in a vehicle.’
Likewise, such a result would make meaningless the Hamdan court’s focus on
a person’s home and privately-owned business as the two places in which the
constitutional right to keep and bear arms for purposes of security is at its
apex.”
The
Dissent
Justice
Crooks dissented on two grounds: the CCW statute is facially unconstitutional;
and the statute is unconstitutional as applied to Fisher. Justices Wilcox and
Roggensack joined in the latter holding only.
Addressing
the latter ground, Crooks wrote, “As it did in Hamdan, the majority once
again improperly holds that the determination of the facts is to be done as a
matter of law, rather than decided by the trier of fact — usually a jury.
Having judicially carved out an exception to Wis. Stat. sec. 941.23 for a privately
owned business in Hamdan, the majority decides here, as a matter of law, that
Fisher’s car, which is used to transport his tavern’s money to the bank,
cannot be considered an extension of his place of business.”
Crooks
added, “Such weighing of the evidence and finding of facts relating to Fisher’s
constitutional defense is appropriate only for the trier of fact. The majority
also fails to give any deference, whatsoever, to the facts found by the circuit
court, the trier of fact in this case. The statute is clearly unconstitutional
as applied to Fisher.”
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David
Ziemer can be reached by email.
