Wednesday, May 17, 2006

Today's Supreme Court decision on concealed carry

The Wisconsin Supreme Court has held that a tavern owner can be prosecuted for carrying a firearm in his vehicle, notwithstanding his claim that he did so for security because he reasonably transported large quantities of cash generated by his business. You can read the decision in the case, State v. Fisher, 2006 WI 44 here.

A few intial observations. First, it's another 4-3 decision, although the breakdown is a bit different than in last summer's infamous collection. This time, Crooks joins Wilcox and Roggensack in dissent and Prosser joins the triumvirate of Abrahamson, Bradley and Butler. In fact, it is Crooks who writes what appears to be a pretty good dissent.

Second, the majority has continued its practice of creating (or, as is more likely, ruling out)exceptions to the state's concealed carry statute. The idea is to reconcile the prohibition of concealed carry with Art. I, sec. 25 of the state's Constitution which states that "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." It continues the practice of reading the statement of the purposes for which people have a right to bear arms as restrictions on that right. In other words, you have the right to bear arms (or, more specifically, to carry a concealed weapon) only if you actually do need it for security.

Third, it has continued to apply these restrictions in a fairly aggressive way. Not only must you need your gun, you must really need it. Badly. The threshold for the reasonable need of a concealed weapon for security purposes seems very high. It can't be based on mere subjective fear or merely upon past assaults on one's person or generalized awarenenss of crime. The Court hasn't said that you basically have to be a storeowner in Little Beirut to have a right to concealed carry, but you get the sense that it's going to take a lot.

Fourth (and this is a little inside baseball), the current Court continues to arrogate to itself substantial authority to re-examine factual findings and judgements made by others, In this case, it's not the legislature that gets its come uppance, but the lower court which would typically make findings of facts on things like the defendants's need for security. Not only did the Court brush off the findings of the lower court (which had dismissed the charge), but it seems to have said that there is no evidence that Fisher can put in on remand to establish that he does have a legitimate security need.

Finally, this is something that the legislature can fix. The Court today held that the concealed carry law can be applied to someone in Fisher's situation. It did - and could not - hold that the legislature must prohibit concealed carry under such circumstances.

1 comment:

Dad29 said...

The Court is nuts.