On Point blog, page 4 of 5
§ 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.
§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, 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 unconstitutional as applied to Cole.
Holding:
¶48. Cole claims that he was carrying the weapons because he had been “the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood.” (Pet’r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat.
Defenses – Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.
As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law.
§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶46. Under its broad police power, Wisconsin may regulate firearms. It may regulate the time, place, and manner in which firearms are possessed and used. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. See State v.
§ 941.23, CCW – Elements – “Go Armed”
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶20. To convict a person of carrying a concealed weapon in violation of Wis. Stat. § 941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v.
Defense of Self – Carrying Concealed Weapon
State v. Tony Nollie, 2002 WI 4, on certification
For Nollie: Erich Straub
Issue: Whether defendant was entitled to assert the privilege of self-defense to the charge of carrying concealed weapon.
Holding:
¶24. To argue self-defense, Nollie’s offer of proof must indicate that he had an actual and reasonable belief of actual or imminent unlawful interference. In this case, there was no actual or imminent unlawful interference to speak of.
§ 941.23, Carrying Concealed Weapon — Constitutionality
State v. Adam S. Gonzales, 2002 WI 59, on certification
For Gonzales: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether the crime of carrying a concealed weapon, § 941.23, is constitutional in light of Article I, Section 25 of the Wisconsin Constitution, which creates a right to keep and bear arms.
Holding: Because the crime was committed before the effective date of Article I, Section 25 (November 30,
§ 940.19(5), Aggravated Battery — First-degree Reckless Endangering Safety, § 941.30(1), Not Lesser Included Offense of
State v. Russell L. Dibble, 2002 WI App 219, PFR filed 8/14/02
For Dibble: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: First-degree recklessly endangering safety, § 941.30(1), is not a lesser included offense of aggravated battery, § 940.19(5), under the “elements-only” test. Aggravated battery requires intent (to cause great bodily harm); endangering safety requires recklessness (while showing utter disregard for human life). It is this last —
§ 941.29(2), Felon in Possession of Firearm — Foreign Conviction as Felony
State v. Alan C. Campbell, 2002 WI App 20, PFR filed 1/16/02
For Campbell: Alexander D. Cossi
Issue: Whether Campbell’s conviction for forgery in another state is regarded as a felony for purposes of felon in possession, § 941.29.
Holding:
¶6. We agree with Campbell that the Ohio forgery statute is broader than Wisconsin’s, and that looking solely at the language of the Ohio statute would be insufficient to prove that Campbell was guilty of possessing a firearm as a felon.
§ 941.29, Felon in Possession of Firearm – “Handling” = Element of “Possesses”
State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman
Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.
Holding:
¶19 At the outset, we note the absence of any mens rea5 requirement in this statute.