Tuesday, April 21, 2009

Why judges aren't legislators

I have not yet had a chance to blog on Judge Sarah Evans Barker's intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not "make sense" or is "unworkable." I don't say that it can never be done (as Justice Scalia has said, "I, too, am a sinner"), but it is a principle with no readily defined stopping point.

So what, you may ask, does this have to do with Attorney General Van Hollen's Advisory Memorandum stating that there is a constitutional right to openly carry firearms? Well, there is a history. In the 1998, the voters amended the Wisconsin Constitution to create an very broad right to "keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." This is, to put it mildly, in tension with Wisconsin's extraordinarily broad prohibition of concealed carry. There are virtually no exceptions and no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was "anomalous." One might have expected that the anomaly would have been eliminated by declaring the statute to be unconsitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case by case basis, deciding when the need for security was compelling enough to result in consitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high crime area but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.

And, if General Van Hollen is right, so she does. If I am concerned for my safety (I am not) when I walk my three enormous but pacifist Golden Retrievers, I can holster my Ruger SR9 and go sauntering down the trail. Although Van Hollen does not cite the Court's concealed carry trilogy and it is quite possible that Art. I, sec. 25 would protect open carry even in their absence, any other outcome would have almost read the constitutional protection out of the constitution.

But is this the best outcome? Rather than rewrite the concealed carry statute by finding constitutionally compelled exceptions, wouldn't it have been better to strike down the statute and force the legislature to pass a concealed carry regime that would have passed constitutional muster? Such a scheme might have permitted concealed carry for those who obtain the proper training (guns are dangerous; if you buy one without proper training, you're crazy) and enact appropriate time, place and manner restrictions.

Cross posted at Marquette Univerity Law School Faculty Blog


Anonymous said...

It's interesting to hear an argument for striking a law on this blog. Especially when (as here) the law and the constitution aren't explicitly in conflict. The constitution is silent on the issue of concealed carry. In that silence, the court's interpretations of the law have been perfectly reasonable. Maybe a little confusing, but perfectly reasonable. "Keep and bear" does not equal "carry concealed" so there is really no constitutional requirement to strike the law.

In a situation like this, it is up to the legislature to change the law. We all know how that turned out. Don't we prefer legislative solutions to judges making law on the bench? When the legislature has spoken (even when it's done so by failing to override a veto) and the constitution is silent, should the judiciary really step in?

Rick Esenberg said...

It would only be "interesting" in the way that you use the term if you conflate judicial restraint with upholding statutes.

I think that the statute and constitution are in conflict - or at least potentially so. Some, perhaps even many, uses of a firearm for security may require its concealment. For example, if you are a pizza delivery guy and want a gun to protect yourself, you are going to have to keep it in your car. The law, on its face, prohibits all concealed carry. That can't be reconciled with Art. I, sec. 25 as the Court itself has acknowledged. My point is that, rather than write exceptions that the law does not contain, the court should have recognized (as Justice Crooks wanted to do) that it was overly broad and unconstitutional. The legislature would have then had to pass a clear (and narrower) set of restrictions that the Governor could not have simply vetoed.

Dad29 said...

In that silence, the court's interpretations of the law have been perfectly reasonable. Maybe a little confusing, but perfectly reasonableNope.

"inch-by-inch" acknowledgement that concealed carry is necessary and licit is no way to run a railroad, so to speak.

When law becomes 'confusing' or inordinately burdensome to obey, the law 'is an ass.'

Not the sort of outcome which citizens (or lawyers) should want.

Anonymous said...

I agree that labels of activism and restraint (at least as they're typically applied) aren't especially useful.

I found the argument to strike the law interesting mostly because the conflict is anything but clear and the potential for conflict is minimal at best. The amendment (which could have (but didn't) explicitly authorized concealed carry) was passed with the CCW ban already on the books for over a century. Legislative attempts to change the CCW law have failed repeatedly. The WI Supreme Court found one narrow constitutional exception to the law as it was applied to an exceptionally sympathetic defendant who probably never should have been charged in the first place. In that case, the Court explicitly recognized that even in light of the amendment the state retained the power to regulate weapons including a general restriction on concealment.

This wasn't (and isn't) exactly a situation begging for judicial resolution. A narrow exception for people with guns next to their cash registers or under their pillows is more appropriate than striking the law completely.

illusory tenant said...

And no true judicial conservative would have allowed those exceptionally sympathetic circumstances to cloud his judgment.