Citation(s) from the GunPolicy.org literature library
Giffords Law Center to Prevent Gun Violence. 2021 ‘State Right to Bear Arms in Wisconsin.’ Other Laws & Policies. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 20 June
State Right to Bear Arms in Wisconsin
Article I, § 25 of the Wisconsin Constitution, adopted in 1998, states: "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."
In State v. Cole, the Supreme Court of Wisconsin rejected an Art. I, § 25 challenge to Wis. Stat. § 941.23, which prohibits the carrying of concealed weapons. Although the court found that the state right to "bear arms" is a fundamental, individual right under Art. I, § 25, the court held that it is subject to reasonable restriction. Finding that section 941.23 is "a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised," the court upheld the statute.
In a companion case to Cole, State v. Hamdan, the supreme court carved out an exception to the prohibition on carrying concealed weapons under section 941.23. In Hamdan, defendant owned a convenience store in a high crime area and kept a handgun for protection. Law enforcement officers performing a routine investigation of defendant's business license discovered the concealed firearm, confiscated it, and prosecuted defendant for violating section 941.23. Defendant argued that the ban on carrying concealed weapons was unconstitutional as applied to him because it interfered with his "right to bear arms" under Art. I, § 25.
At the outset, the court emphasized that section 941.23 is constitutional and that the state may regulate firearms under its police power. Furthermore, the court noted that "only if the public benefit in … exercise of the police power [to regulate firearms] is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied."
Following an extensive review of statutory and case law from other jurisdictions pertaining to both the carrying of concealed weapons and the right to "bear arms," the court found that defendant had a constitutional right under Art. I, § 25 to "keep and bear arms for the lawful purpose of security at the time he carried his concealed weapon … ." and reversed the conviction.
The court noted that "[i]f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises."
In determining if an Art. I, § 25 challenge to a concealed weapons prosecution may be raised, however, the court held that a defendant will be required to affirmatively answer whether: 1) under the circumstances, the defendant's interest in concealing a firearm to "facilitate exercise of his or her right to keep and bear arms" substantially outweighed the state's interest in enforcing the concealed weapons statute; and 2) the defendant concealed the firearm because concealment was "the only reasonable means under the circumstances to exercise his or her right to bear arms."…
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