Wisconsin Considers Constitutional Carry

It is amazing how far gun rights and carry rights have advanced in the Badger State since I first started blogging in 2010. Back then, Wisconsin residents had limited open carry rights due to an advisory ruling by then-Attorney General J. B. Van Hollen in 2009. They were one of two states that did not allow any form of concealed carry.

That began to change in late 2010 thanks to a ruling by a county circuit judge who ruled that the ban on concealed carry was unconstitutional. That, however, only applied in a limited area of Wisconsin. It was not until July 2011 when Gov. Scott Walker (R-WI) signed SB 93 that concealed carry became a reality in the state. Moreover, the bill that Gov. Walker signed provided for shall-issue concealed carry.

Fast forward a few years and now the Senate Judiciary and Public Safety Committee passed out a bill that would allow constitutional or permitless concealed carry in the state.

From the Milwaukee Journal Sentinal:

The Senate Judiciary and Public Safety Committee signed off on the bill 3-2, with all Republicans for it and all Democrats against it. The wide-ranging legislation would also allow people to carry Tasers without training or permits and would allow felons to carry muzzle loaders.

Sen. Van Wanggaard (R-Racine), the chairman of the committee, said Senate Bill 169 would make the public safer and ensure Wisconsin's policies are the same for carrying weapons openly and concealed. Wisconsin has long allowed people to openly carry guns without training or permits.

"Quite honestly, I think I would rather have an individual that can lawfully possess a firearm and is carrying it, (and) I'd rather have them carrying it concealed because I think it creates a lot less tension when you're in a group of people," Wanggaard said.

"If they’re there for a lawful purpose and they’re carrying it for personal protection, they’re not going to be the problem. The one that’s going to be the problem is the dirtball that has one that’s illegal and they’re going to use it to conduct crime."

According to the article, the Democrats on the committee oppose it because they believe there still should be some level of government regulation. While Sen. Wanggaard, the committee chair, believes it will pass both the Senate and the Assembly, there is some question as to whether Gov. Walker will actually sign the bill.

Walker was asked about the constitutional carry legislation back in June and he had this to say at the time as reported by the Wisconsin State Journal.

“I think the law we have right now is a good law. I’m comfortable with that,” Walker told reporters when asked about the bill. “The people that talk to me about it say they like where it’s at. Obviously we’re one of the last states to have concealed carry and people said the world was going to come to an end who were the critics. It hasn’t. We’re one of the larger number of permits in the country and it works well that way. ... What I’ve heard from folks is they are happy with the law as it is.”

Even if the legislation passes, the existing permit system would remain in place for those residents who wanted a permit so that they could carry in other states that recognized the Wisconsin permit.

Kudos to all those in Wisconsin who have fought in the trenches for gun rights in the state for so long. Their efforts have brought the state from virtually no carry to the cusp of constitutional carry. To quote Arthur MacArthur, that native son of Wisconsin who won the Medal of Honor for his exploits at the Battle of Missionary Ridge, "On, Wisconsin!"

More Problems For The King Of The Bad Apple Lawyers

Jonathan Lowy, director of the Brady Center's Legal Action Project, has run into more problems in Wisconsin. Just last month he and fellow Brady Center attorney Alla Lefkowitz were forced to withdraw from one of their "Bad Apple" lawsuits for violating Wisconsin Supreme Court rules. These rules dealt with attorney conduct with respect to pretrial publicity.

Now it appears that he may have done it again in the other case involving Badger Guns and Badger Outdoors.

Now an attorney for Badger Guns and Badger Outdoors, the West Milwaukee gun-selling operations sued by the officers, wants the Brady attorneys off the second case, citing in a new court filing "zealous and unethical trial publicity."

A hearing on whether the Brady attorneys will be removed from the case is set for July before Milwaukee County Circuit Judge John DiMotto, who is now presiding over both cases. This second case was filed by Officer Jose Lopez III and former Officer Alejandro Arce, who were injured in a 2007 shooting by weapons sold by the gun dealer.

Brady attorneys Jonathan Lowy and Alla Lefkowitz are not licensed to practice law in Wisconsin, but were allowed to join both cases —as they have in cases across the country litigated by Brady. Milwaukee attorney Patrick Dunphy also represents the officers and former officers.

The permission that allows an out-of-state attorney on a case can be rescinded, and the attorneys for Badger Guns and Badger Outdoors are seeking a court order withdrawing the permission.

"The Brady Center's conduct is inexcusable," Brookfield attorney Wendy Gunderson wrote in a brief filed earlier this month. "Attorneys appearing before Wisconsin courts are here as a matter of privilege and charged with knowing the rules. The privilege has been abused, seriously affecting not only these two cases but countless others."

Ms. Gunderson said the material posted by Lowy on the Brady Campaign website and in fundraising letters about Badger Guns with regard to the earlier case also could serve to prejudice the jury in this case. Gunderson submitted copies of the social media and fund raising letters to the court in a sealed filing.

Jonathan Lowy is one of the attorneys that I plan to feature in my "Bad Apple Lawyers" series. I am still gathering material regarding Lowy. Given his position as head of the Legal Action Project, Lowy must be considered the King of the Bad Apple Lawyers.

Republicans Are Bigger Killers

I haven't gone all lefty and joined with Ladd over at CSGV. I promise! Actually, I'm referring to a story in the Madison, Wisconsin Capital Times about the deer hunting prowess of the Republicans in the Wisconsin State Senate as compared to that of the Democrats.

Republicans in the Wisconsin state Senate had the magic touch this deer hunting season, bagging more deer than their colleagues in the Assembly and all their Democratic colleagues combined.

Of the 18 Senate Republicans, Terry Moulton of Chippewa Falls, Dale Schultz of Richland Center, Majority Leader Scott Fitzgerald of Juneau, Richard Gudex of Fond du Lac, Sheila Harsdorf of River Falls, Neal Kedzie of Elkhorn and Paul Farrow of Pewaukee went hunting over the eight-day gun deer season that ended Dec. 1.

Fitzgerald, Harsdorf, Kedzie and Gudex each got a deer.

“I guess we’re a better shot,” joked Gudex, who bagged an 8-point buck on opening day.

Of the Democrats in both the Senate and Assembly, none were successful this year.

I do like the comments of Rep. Dianne Hesselbein (D-Middleton) as to why she went hunting for the first time and on her experience.

A freshman lawmaker elected in 2012, Hesselbein told herself if she was made a member of the Assembly Natural Resources and Sporting Heritage Committee, she would go deer hunting.

She was, so she did. She borrowed a 20-gauge shotgun and practiced shooting at the Dane County range. But the only animal she saw in the woods was a squirrel. She said she was surprised by the fact that she enjoyed the experience.

“You have to be so quiet. You can’t even check email,” Hesselbein said. “You just get to sit and look at the beauty of Wisconsin.”

On, Wisconsin!

On, Wisconsin! On, Wisconsin!
Grand old Badger State!
We, your loyal sons and daughters,
Hail thee, good and great.
On, Wisconsin! On, Wisconsin!
Champion of the right,
"Forward", our motto,
God will give thee might!

 Last night was a mostly good night for the GOP in Wisconsin. I say mostly because they lost one of the State Senate recall elections which will give the Democrats control of the Wisconsin State Senate by a 17-16 margin.

Gov. Scott Walker (R-WI), Lt. Gov. Rebecca Kleefisch (R-WI), and three Republican state senators won their recall elections yesterday. The lone Democrat to win was John Lehman who beat the incumbent Van Wanggaard in Racine. Lehman had previously held that State Senate set so he wasn't an unknown to the voters and, according to the Milwaukee Journal Sentinel, that district is one of the most competitive in Wisconsin.

Regarding John Lehman, he had served in the State Assembly for five terms and then one term in the State Senate. The only thing I can find on his campaign website regarding gun rights is this:

We cannot afford to have concealed weapons in our schools and we need to trust our local elected officials when deciding where weapons are permitted or prohibited.

Other than that, I'm not sure how a Democrat controlled State Senate will impact gun rights in Wisconsin. According to Wisconsin Gun Owners, both Lehman and Wanggaard were rated "F" on gun rights in their first match-up in 2010. Moreover, Wanggaard was not one of the sponsors of the bill approving shall-issue concealed carry in Wisconsin though he did vote for final passage of the bill. That bill passed the State Senate 25-8 which means it was passed with both Democrats and Republicans voting for it.

As with anything political, only time will tell how the change in control of the Wisconsin State Senate will impact gun rights in the Badger State.

NRA-ILA On Scott Walker's Win In Wisconsin

Chris Cox and the NRA-ILA are celebrating what looks to be an overwhelming victory by Gov. Scott Walker in Wisconsin recall election. They released this statement a short while ago.

Thanks to your votes and efforts, Scott Walker has won the recall election for Governor in Wisconsin defeating rabidly anti-gun Milwaukee Mayor Tom Barrett.

Scott Walker has proven his dedication to the Second Amendment by signing into law right-to-carry legislation, castle doctrine legislation, and the Hunting Heritage Act during his short tenure as Wisconsin’s chief executive. Scott Walker also supported statewide preemption of firearm laws and an amendment to the Wisconsin Constitution guaranteeing the individual right to keep and bear arms. In contrast, Tom Barrett has a career-long “F” rating from NRA-PVF and has supported bans on commonly owned firearms, supported exposing hunters to prosecution, and has consistently opposed common sense self-defense legislation.

Your NRA was fully vested in this race with a comprehensive campaign that included tens of millions of online ads and hundreds of thousands of television, radio and print ads before today’s recall election. The media campaign was also supplemented by a concentrated advocacy and get-out-the-vote phone and mail program. All-in-all, almost two million pieces of advocacy mail were sent and phone calls made in this remarkable victory for freedom.

The NRA’s media campaign was complemented with a strong grassroots effort, utilizing field coordinators to conduct literature drops, canvassing and volunteer efforts across the state in the months before the election.

Together we made a difference in this race. But, as always, what mattered most in this race was your vote. Thanks to gun owners in Wisconsin, one of the strongest pro-gun Governors in the country will continue working to support our fundamental, individual Right to Keep and Bear Arms.

I bet the managers of those two Gander Mountain stores which refused to let the NRA-ILA hold their previously scheduled grassroots training sessions are feeling a little stupid right now. I still plan to shop elsewhere given Gander Mountain's actions.

It's All About Him

If I were Milwaukee Mayor Tom Barrett (D), I'd have done my damnedest to keep Jesse Jackson out of Wisconsin and not there campaigning for the recall of Gov. Scott Walker (R-WI). Because with Jesse, it is all about him and his agenda.

Attending a rally of "workers" in Milwaukee on Sunday, he shows up in a two-car cavalcade consisting of a Mercedes S550 and a Cadillac Escalade ESV. The combined price of those two vehicles is about $175,000. The best you can say about that is at least one of the cars was from Government Motors.

I'm guessing he got to Milwaukee after his rally in Racine where he called for a march on gun shops in Kentucky. Remember, this is about recalling Gov. Scott Walker and replacing him with his 2010 rival Milwaukee Mayor Tom Barrett.



If Jesse is trying to say that the guns traced to crimes in Wisconsin are coming from Kentucky, he needs to try a bit harder. The BATFE just released a state-by-state analysis of traced firearms for 2011. Kentucky was tied with Arizona for next-to-last in the top 15 states for traced firearms in Wisconsin with a total of 11. The number one state after Wisconsin itself was Rev. Jackson's home state of Illinois.

Now I have a shameful admission to make. In 1988, when I was young, stupid, and a Democrat, I actually voted for Jesse Jackson in the North Carolina primary as a protest against Al Gore. I did come to my senses in November and voted Republican.

On CCW Rules For Wisconsin

Gov. Scott Walker (R-WI) reluctantly approved the emergency rule promulgated by the Wisconsin Department of Justice concerning training for the state's concealed carry permit. With concealed carry going into effect on November 1st, his feeling that not approving it would delay the right of Wisconsinites to carry concealed.

Cam Edwards has an interview with Brent Gardner, the NRA-ILA State Liaison for Wisconsin, about the emergency rule and concealed carry in the state.




The NRA-ILA released a statement about the emergency rule on Saturday which took exception to it and vowed to work to change it in the permanent rule process.

Governor Scott Walker reluctantly approved the Emergency Concealed Carry Rules promulgated by the Wisconsin Department of Justice (DOJ). While the Governor has many of the same concerns that were expressed by NRA-ILA Executive Director Chris Cox in his letter to Attorney General Van Hollen, he understandably did not want to further delay the ability of citizens of Wisconsin to carry concealed handguns for self-defense. His rejection of the Emergency Rules would have resulted in a significant delay on implementation of the new law that takes effect on November 1.

Governor Walker stated, “We’re hopeful that the Department of Justice improves the permanent rules substantially before sending them to the Administration and the legislature for approval.” The NRA will continue to work with the state legislature to ensure that this happens.

Unfortunately, DOJ has chosen to overstep its authority by imposing conditions on prospective concealed weapons license applicants that the legislature never adopted or intended. As part of the Executive Branch of state government, DOJ’s role is to faithfully implement the laws adopted by the legislature, not dramatically change them. If the Emergency Rules are allowed to become permanent, they will set a dangerous precedent that perverts our system of government and its principles associated with the separation of powers.

When the Legislature adopted Act 35, the concealed weapons law, two provisions were very clear. There was to be no minimum number of hours of firearms training required in order to satisfy the training mandate and any qualifying firearms training or safety class that a prospective applicant has taken at any time in the past would be accepted.

Through its Emergency Rules, the DOJ has effectively negated both of these provisions. First, the Rules require a minimum of four hours of training. Both houses of the legislature contemplated amendments that would have required a minimum number of hours of training and specific curriculum. These amendments were rejected.

Secondly, DOJ had deviated from the examples set by other states with virtually identical statutory language by micromanaging the information that must be provided on training certificates submitted by applicants. No training certificates anywhere in the country contain the information that the Wisconsin DOJ demands. This renders all existing certificates insufficient for submission with a citizen’s license application. DOJ could have easily established a system that would have allowed existing training certificates to be submitted while ensuring that the requirements of the concealed weapons law are met.

It is now time for you to act! The Emergency Rules will now be sent to the legislature for approval or rejection. Please contact your state representative and senator and ask that they reject the Emergency Rules and work to ensure that that the permanent rules ultimately reflect the clear letter of the law and the legislature’s intent. In the meantime, the Emergency Rules will remain in effect so as to ensure that there is no delay in the November 1 implementation of this essential new law.

She Needs To Call Breda For That Answer

A number of Wisconsin municipalities are debating what restrictions, if any, they will place on concealed carry in city buildings now that concealed carry is the law in that state. The guidance from the League of Wisconsin Municipalities states:

According to a legislative bulletin from the League of Wisconsin Municipalities, the concealed carry law that Gov. Scott Walker signed into law July 8 prohibits carrying firearms into police stations and municipal courtrooms if court is in session.

Local governments also may ban firearms from municipal buildings if a proper sign is posted, but they can not prohibit them from municipal parks and open spaces, according to the League analysis.

In Whitewater, the City Council was presented a proposal from the Parks and Recreation Director to ban firearms in "the municipal building, library, White Building, armory, Starin Park Community Building, Cravath Lake Community Center and Train Depot building."

Some members of the council seem a little bewildered by it all. For example, Marilyn Kienbaum had this to say:

“I can’t imagine why anyone would be carrying a gun into those places to begin with,” Councilwoman Marilyn Kienbaum said.

Perhaps, Councilwoman Kienbaum, pictured below, needs to speak with Breda - gun blogger, reference librarian, and Bersa-toter - for an answer to that question.

 

 

Whitewater Councilwoman Marilyn Kienbaum - Janesville Gazette

Gov. Scott Walker On Wisconsin's New CCW Law

Gov. Scott Walker (R-WI) was interviewed by NRA News just after he signed the State of Wisconsin's new concealed carry law. An interesting point he made was they had every female Senator - Democrat and Republican - on his side for CCW. Cool!

And Then There Was Only One

Illinois is now the only state left that does not have some form of concealed carry or any carry for that matter.

Gov. Scott Walker (R-WI) signed SB 93 today in Wausau, Wisconsin which approved concealed carry for those in the Badger State. From the NRA-ILA who was there along with NRA Exec. VP Wayne LaPierre:

Fairfax, VA. – Today, National Rifle Association (NRA) Executive Vice President Wayne LaPierre and the NRA's Institute for Legislative Action Executive Director Chris W. Cox joined Governor Scott Walker as he signed the Wisconsin Personal Protection Act into law. This makes Wisconsin the 49th state to give law-abiding citizens an option to carry a concealed firearm for personal protection.

“For everyday crime victims, Right-to-Carry is the difference between no chance and a fighting chance. That is why the NRA's commitment to freedom, the Second Amendment and the self-defense rights of good people everywhere never wavers,” said LaPierre. “Today's signing ceremony is proof of the value of the hard work, dedication and perseverance of NRA members in Wisconsin.”

“This is an historic day for the Right-to-Carry effort not only in Wisconsin, but across the country,” said Cox. “The fundamental, individual, God-given right to self-defense must be respected. I’d like to thank Senators Galloway and Zipperer, Reps. Mursau and Suder and Gov. Walker for their dedication to freedom.”
“By signing concealed carry into law today, we are making Wisconsin safer for all responsible, law abiding citizens,” said Gov. Walker.

“I would like to thank the NRA for all their hard work over the past 10 years—they never gave up the fight for Wisconsinites to defend themselves,” said Sen. Pam Galloway. “While we were both disappointed that Constitutional Carry did not have the necessary support in the legislature to pass this year, we know that SB 93 represents one of the most freedom-oriented licensing laws in the entire country and it’s a tremendous first step toward our ultimate goal of adopting Constitutional Carry in the Badger State. I look forward to continuing this battle alongside the proud members of NRA.”

Both chambers of the Wisconsin legislature voted to approve one of the nation’s strongest Right-to-Carry bills by solid bipartisan margins. Today’s signing of the Wisconsin Personal Protection Act into law leaves Illinois as the only state that provides no way for its citizens to carry firearms for self-protection outside their homes or places of business.

Click on picture to embiggen.

Wisconsin's Concealed Carry Law To Be Signed Friday

Gov. Scott Walker (R-WI) will sign the bill that makes Wisconsin the 49th state with some form of concealed carry on Friday in Wausau, WI.

The primary sponsor of the bill, State Senator Pam Galloway (R), represents Wausau in the Wisconsin State Senate.

The location of the signing will be at the Grand Lodge Hotel just outside of Wausau in Rothschild. Looks like a nice place for this historic event.

WI House Majority Leader On Passing Concealed Carry

Cam Edwards interviewed State Representative Scott Suder (R-Abbotsford) on the passage of concealed carry in the State of Wisconsin. With its passage in Wisconsin, the only state that does not allow concealed carry in any form is Illinois.

CCW In Wisconsin Sooner Than Later?

If the Washington Post is to be believed, Republicans in the Wisconsin State Legislature are making a major push to pass certain legislation before recall elections scheduled for this summer.

Wisconsin Republican Gov. Scott Walker and GOP leaders have launched a push to ram several years’ worth of conservative agenda items through the Legislature this spring before recall elections threaten to end the party’s control of state government.

Republicans, in a rapid sequence of votes over the next eight weeks, plan to legalize concealed weapons, deregulate the telephone industry, require voters to show photo identification at the polls, expand school vouchers and undo an early release for prisoners.

Six Republican State Senators and three Democrats may face recall elections starting in July. A net change of three seats would let the Democrats regains control of the State Senate. Both the recall elections and the time crunch to pass legislation can be attributed to the clash with public employee unions along with the walk-out by Democrat members of the State Senate.

It can be expected that both the Democrat Party and the unions will put lots of money into these recall elections as they did during the recent Wisconsin Supreme Court election between Justice David Prosser and his Democrat challenger JoAnne Kloppenburg. While still undergoing a recount, it looks like Justice Prosser held onto his seat despite the opposition's money. However, in a local election, it could have more of an impact.

Wisconsin Legislature Begins Efforts On Concealed Carry

The NRA-ILA has just released information on two concealed carry bills that are due to be introduced into the Wisconsin legislature. One will allow a Vermont or Arizona style constitutional carry. The other is a "shall issue" concealed carry permit.

Wisconsin: The 2011 Personal Protection Act Has Arrived!
Committee Hearings Have Been Scheduled for Next Thursday!

Thursday, May 05, 2011


Now is Time for You to Act!

The good citizens of Wisconsin have been denied their right to self-defense for too long and the time has now come to make the Personal Protection Act a reality! It is time that Wisconsin joins Free America and the 48 other states with concealed carry laws. The bills have been circulated for sponsorship and it is critical that you contact your state Representative and state Senator to urge them to cosponsor this legislation.

There are two bills being introduced in the 2011 legislative session that allow Wisconsinites to carry concealed weapons for personal protection. The first is known as “permitless carry” and it simply eliminates the current prohibition against law-abiding citizens carrying concealed firearms. Many citizens already carry openly and this will allow them to conceal their firearms. It also eliminates the “cased and unloaded” requirement for handguns in motor vehicles. State Senator Pam Galloway (R-Wausau) has introduced this bill in the Senate and there is currently no companion bill in the Assembly. Its designation before assigned a bill number is LRB 2007 and both senators and representatives are able to cosponsor it.

The second is a “shall issue” carry license bill that allows Wisconsinites to obtain a license from the state Department of Justice (DOJ) in order to carry a concealed weapon. This license bill offers some additional benefits. These include the ability to use the license to carry a concealed weapon in many other states while traveling and the ability to carry concealed weapons in school zones (1000-foot area surrounding school grounds). These zones are prolific and it is virtually impossible to navigate populated areas without entering them while engaging in routine activities. The federal penalty for a school zone violation is up to five years in prison and a fine. State Senator Pam Galloway (R-Wausau) and state Representative Jeffrey Mursau (R-Crivitz) are the sponsors of this bill. The current Senate Bill designation is LRB 2027 and the Assembly Bill is LRB 2033.

When contacting your state legislators to request that they cosponsor the Personal Protection Act, please also ask them to oppose any amendments that restrict your ability to defend yourself or place unnecessary hurdles in the process required to obtain a concealed weapons license. Too many legislators are acting as if there are not 48 other states with such concealed carry laws and that there is no way of determining what works and what does not. The time for guessing has ended!

We have provided two documents that will further inform you about this fight for your rights. One is a summary of the bills, with details regarding the “shall issue” carry license bill, and the other is a comprehensive Questions and Answers document

A search of the Wisconsin legislature's website does not yet list either bill. I believe that is because they are being circulated to obtain sponsors and co-sponsors.

.

Time To Pass CCW In Wisconsin Is Now

I thought you needed 20 Senators to make a quorum in the Wisconsin State Senate. You do but only for fiscal bills. According to the National Review Online, a simple majority is all that is needed for other bills.

Bringing up hot-button legislation while the Democrats are gone is another arrow in Walker’s quiver. Though the Wisconsin constitution requires three-fifths of the senate to be present to pass fiscal legislation, a simple majority of 17 members constitutes a quorum for other bills in the 33-seat state senate. So the 19 GOP senators who remain in Madison can pass any number of bills while their Democratic colleagues are on the lam, and Republicans are a majority in the assembly, too. “They can hold off, but there is a whole legislative agenda that Republicans in the senate and assembly can start acting on that only requires simple majorities,” Walker warns.“If they want to do their jobs, and have a say, they better show up.”

Non-spending bills and government appointments could see action early Tuesday. Walker says he will not yield as the standoff unfolds, especially since Wisconsin is facing a projected $3.6 billion budget shortfall over the next two years.

Gov. Scott Walker indicated during his campaign for Governor that he would sign a concealed carry bill if it were presented to him.

If you are a gun rights supporter who lives in Wisconsin, call your legislators and urge them to get to work on CCW. I doubt you could get constitutional carry to pass but you just never know. At the very least, make Wisconsin a "shall-issue" state.

No Appeal in Wisconsin Concealed Carry Case

About a month ago, I did a post on Clark County, WI Judge Jon Counsell who ruled that that Wisconsin's ban on concealed carry was unconstitutional. At the time it was widely speculated that the State of Wisconsin would appeal that ruling.

They didn't.

In an email that I received today from Asst. State Public Defender William Poss he said, "The good news is that the state did not appeal the ruling." That is good news indeed for residents of Clark County, Wisconsin!

With the recent electoral victories of Republican Scott Walker as Governor and the Republican take-over of both houses of the Wisconsin State Assembly, look to see a bill authorizing concealed carry statewide in 2011.

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.