Why Wisconsin Needs to Pass the Personal Protection Act?
by Rep. Scott Gunderson, 83rd District

November 1, 2005

In the 1998 election, Wisconsin residents overwhelmingly passed an amendment to our State Constitution, which guarantees "the people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." This Constitutional Amendment plays a significant role in the ongoing debate over the need to pass the Personal Protection Act. On July 15, 2003, the State Supreme Court issued two separate decisions regarding Concealed Carry in the state of Wisconsin. In Wisconsin v. Hamdan, the Wisconsin Supreme Court ruled that strict application of the 1870 law barring the possession of concealed weapons is unconstitutional following the passage of the Wisconsin Constitutional Amendment on the Right to Keep and Bear Arms. The court stated that "strict application of the CCW (carry concealed weapons) statute effectively disallowed the reasonable exercise of Hamdan's constitutional right to keep and bear arms for the lawful purpose of security." The decision means homeowners and business people have the right to carry concealed weapons on their own property, without having to obtain a concealed carry permit, today.

The court specifically ruled that Mr. Hamdan had the right to have a concealed weapon at his business for his protection and defense. The court wrote: "...we hold that the State's police power must yield in this case to Hamdan's reasonable exercise of the constitutional right to keep and bear arms for security."

Showing remarkable judicial restraint, the Wisconsin Supreme Court did not strike down or rewrite the CCW statute themselves. Instead they wrote: "The approval of the state constitutional right to keep and bear arms for security, defense, hunting, recreation and any other lawful purpose will present a continuing dilemma for law enforcement until the legislature acts to clarify the law. We urge the legislature to thoughtfully examine Wis. Stat. 941.23 in the wake of the amendment to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon."

Wisconsin's Personal Protection Act is exactly what the State Supreme Court requested - "a licensing or permit system for persons who have a good reason to carry a concealed weapon." The court's ruling and last Session's veto of SB 214 leave Wisconsin residents and law enforcement in an ambiguous situation. The court has made it clear that prohibiting the carrying of a concealed weapon within one's business is unconstitutional. The question is what exactly does within one's business mean? The Supreme Court has left some big questions that must be answered. In Mr. Hamdan's case it meant a convenience store owner at work. Does it also mean a jeweler traveling with samples? Is it a young woman heading to or from her waitress job alone at night? Is it an ATM repairman who must fix ATM machines filled with cash? Or, does it mean a tavern owner leaving his bar with a large amount of cash?

Arguably, every one of these examples have as much reason to fear for their safety within the course of their jobs as Mr. Hamdan did. In the wake of the court's ruling, every one of the people in these examples could legitimately challenge the state's police power with regard to the 1870 CCW statute.

There is already a case before the Wisconsin State Supreme Court. In this case, a tavern owner who kept a loaded firearm in his car because he took large amounts of money home after closing was arrested for violating the concealed weapon statute. The 4th District Court of Appeals has asked the Supreme Court to clarify the Hamdan concealed firearm case in situations when a person is away from their home or business.

Lawmakers are often challenged to remember the "Law of Unintended Consequences." The opponents of Wisconsin's Personal Protection Act have spent a lot of time, fear-mongering about Wild, Wild West shoot-outs that would happen when Wisconsin's Personal Protection Act becomes law. Unfortunately, they have not spent as much time reflecting on the unintended consequences of their actions to defeat this bill. Their neglect in that regard has placed Wisconsin citizens, law enforcement and the courts in a state of confusion when it comes to individuals' exercising their constitutional right to keep and bear arms.

In the initial post-Wisconsin Right to Keep and Bear Arms legal challenge of the CCW Statute, the highest court in this state has written the opinion that the CCW Statute is unconstitutional. Rather than immediately strike the law down, the court gave the legislature time to create "a licensing or permit system for persons who have a good reason to carry a concealed weapon." Last Session, the legislature complied and the governor vetoed that permit system. There is a real possibility that, the next time a similar challenge comes before a court, the entire CCW Statute could be struck down. If that happens, rather than allowing law-abiding individuals who could meet the certification and permitting provisions included in the Personal Protection Act to carry concealed weapons, anyone, anywhere in Wisconsin would be free to carry concealed weapons with no limitations, no certifications, and no training.

The Personal Protection Act establishes a system run by the Department of Justice that will allow citizens over the age of 21 to apply for a concealed carry license provided they pass a background check that is more restrictive than the one for purchasing a firearm, they have completed of a certified firearm safety course, and paid a fee to receive an I.D. card from the Department. The truth is the "Personal Protection Act," would make Wisconsin the 47th state in the nation to allow its trained law-abiding citizens to carry concealed weapons, and it is exactly what the State Supreme Court asked for - "a licensing or permit system for persons who have a good reason to carry a concealed weapon."