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