On Point blog, page 5 of 6
§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console
State v. Scott K. Fisher, 2006 WI 44, on certification
For Fisher: Paul B. Millis
Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.
Holding:
¶5 … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in enforcing § 941.23.…
¶18 … Defendants have the burden of proof.
Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11: “Actually Yielded to Authority” Test for Seizure
State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶19 … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.…
¶27 Young, however, argues that we should reject Hodari D. and interpret Article I,
Wisconsin Constitution – “New Federalism,” Generally
In a series of recent cases, the supreme court has joined what it terms “the ‘new federalism’ movement,” State v. Knapp (II), 2005 WI 127, ¶84 and id., n. 20 (Crooks, J., conc. w/ majority support of 4 votes), which refers to a tendency to look first to the state constitution and assign greater rights than the Supreme Court to parallel provisions in the federal constitution. Those cases are listed here:
Wisconsin Constitution – Supreme Court Superintending Authority
State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: (Concurrence of Chief Justice, but one that marshals majority of votes, hence represents holding:)
¶66 The powers of the Wisconsin Supreme Court are defined in several ways and have diverse origins. Some are explicitly set forth in Article VII,
Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11
State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: ¶15 n. 3:
Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v.
Wisconsin Constitution – Construction – “New Federalism” – Double Jeopardy Clause
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
Issue/Holding: ¶13 n. 4:
The Fifth Amendment to the United States Constitution provides that no person “shall … be subject for the same offence to be twice put in jeopardy of life or limb ….” Article I, section 8 of the Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment ….” Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution.
Wisconsin Constitution – Construction: Victims’ Rights Amendment, Art. I, § 9m
Patrick G. Schilling v. State Crime Victims Rights Board, 2005 WI 17, on certification
Issue/Holding: The first sentence of Art. I, § 9m (“dignity” provision) is a statement of purpose, articulating the importance of crime victims’ rights, but is not self-executing. ¶¶13-26.
General methodology of interpreting constitutional provision – plain meaning of words; constitutional debates; earliest legislative implementation – recited, ¶16. In the present instance,
Appellate Procedure – Standard of Review: Testify, Defendant’s Right to
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶11. A defendant’s right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660,
§ 941.29, Felon in Possession of Firearm — Constitutionality
State v. Louis D. Thomas, 2004 WI App 115, PFR filed 6/17/04
For Thomas: Joseph L. Sommers
Issue/Holding: Wis. Const. art. I, § 25 (“right to keep and bear arms”) did not effectively repeal § 941.29 (felon in possession). ¶¶7-12.
Issue/Holding: § 941.29 is neither vague, ¶¶14-18, nor overbroad, ¶¶19-23.
Issue/Holding: § 941.29 doesn’t violate equal protection, ¶¶24-29. (Comparative classes: felons / misdemeanants;
§ 941.23, Carrying concealed weapon – Facial Constitutionality, in Light of Wis. Const. Art. I, § 25
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue: Whether § 941.23 is facially unconstitutional as impermissibly infringing on the right to bear arms.
Holding: The constitutional right of an individual to bear arms, Wis. Const. Art. I, § 25, being “fundamental” in nature, ¶20, the question is whether § 941.23 “reasonably” restricts that right, which in turn requires balancing the interests involved.