Article I, § 25 of the Wisconsin Constitution, adopted in 1998, states: “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”1

Although the Supreme Court of Wisconsin has found that the state right to bear arms is a fundamental right, it has also held that the right is subject to reasonable regulation. In State v. Cole, the court upheld a law prohibiting the carrying of concealed weapons because the law was “a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised.”2

However, in  State v. Hamdan, a companion case to Cole, the supreme court carved out an exception to this law and reaffirmed the constitutional right to bear arms for the purpose of security.3 The court emphasized that the state may regulate firearms under its police power, noting that “only if the public benefit in . . . exercise of the police power [to regulate firearms] is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied.”4

Following an extensive review of statutory and case law from other jurisdictions pertaining to both the carrying of concealed weapons and the right to “bear arms,” the court found that the defendant had a constitutional right under Article I, Section 25 to “keep and bear arms for the lawful purpose of security at the time he carried his concealed weapon . . . .” and reversed the defendant’s conviction.5

The court noted that “[i]f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.”6

In determining if an Article I, § 25 challenge to a concealed weapons prosecution may be raised, however, the court held that a defendant will be required to affirmatively answer whether: 1) under the circumstances, the defendant’s interest in concealing a firearm to “facilitate exercise of his or her right to keep and bear arms” substantially outweighed the state’s interest in enforcing the concealed weapons statute; and 2) the defendant concealed the firearm because concealment was “the only reasonable means under the circumstances to exercise his or her right to bear arms.”7

Following the principles of Cole and Hamdan , the Supreme Court of Wisconsin dismissed another constitutional challenge to a concealed weapons prosecution under § 941.23 in State v. Fisher.8 The defendant, a tavern owner, argued that he kept a loaded gun in the center console of his car for security purposes because he routinely transported large amounts of cash generated by his business. The supreme court balanced the defendant’s interest in exercising his right to bear arms by concealing a firearm for purposes of security against the state’s interest in enforcing the concealed weapons statute, and concluded that “carrying a concealed and dangerous weapon in a vehicle will generally be contrary to the state’s interest in protecting the health, safety, and welfare of Wisconsin citizens.”9 The court upheld the defendant’s concealed weapons conviction and noted that this state regulation generally will not present any constitutional challenge, “except in extraordinary circumstances.”1011

Notes
  1. Wis. Const. art I, § 25. ⤴︎
  2. State v. Cole, 2003 WI 112, ¶ 28, 264 Wis. 2d 520, ¶ 28, 665 N.W.2d 328, ¶ 28. ⤴︎
  3. 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785 (2003). ⤴︎
  4. State v. Hamdan, 2003 WI 113, ¶ 46, 264 Wis. 2d 433, ¶ 46, 665 N.W.2d 785, ¶ 46. ⤴︎
  5. Id. at ¶ 46 (emphasis added). ⤴︎
  6. Id. at ¶ 68. ⤴︎
  7. Id. at ¶ 86. ⤴︎
  8. 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495. ⤴︎
  9. Id. at 148-49. ⤴︎
  10. Id. at 149. ⤴︎
  11. See also State v. Thomas, 2004 WI App 115, ¶¶ 8-12, 274 Wis. 2d 513, ¶¶ 8-12, 683 N.W.2d 497, ¶¶ 8-12 (2004) (rejecting an Art. I, § 25 challenge to Wis. Stat. § 941.29, which prohibits a felon from possessing a weapon, on the ground that the legislative history of the constitutional provision indicates both an intent to preserve pre-existing firearm regulations and the legislature’s authority to restrict firearm possession by felons). ⤴︎