Truck Open Carry Case offers Chance to Validate Wisconsin Constitution

In Wisconsin, a truck driver, Guy A. Smith, is contesting an arrest for carrying a concealed weapon. The handgun was on the floor of his truck, and was visible to an outside camera. Smith made no attempt to hide the firearm when the truck was inspected by a Wisconsin State Trooper.

Open carry has always been legal in Wisconsin, but case law from 2003 found that carrying a loaded handgun concealed beneath a seat or in a glove compartment, was carrying concealed. The Supreme Court found the ruling to be correct, in spite of the passage of the strong protection for bearing arms in Wisconsin's Constitution.

In 1998, the people of Wisconsin voted for Constitutional Carry in a state referendum amending the state constitution. The amendment, which created Article I, Section 25, is very clear. It received 74% of the vote. From Article I Section 25:

 The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

The Wisconsin Supreme Court has been changed since 2003. Ideological leftists that dominated the court have been voted out. Originalists and textualists have been voted in.  Another case on carry in a car, which is carry for security, and other lawful purposes, such as self defense, could have a different outcome.

In a recent case on carry on buses, the court ruled that local governments may not ban the carry of weapons on buses. Unfortunately, the defense did not bring up the constitutionality of the city regulation.  Several justices appeared to be asking for a reason to consider the constitutionality issue, but the defense refused to raise it.

As part of the shall issue law passed in Wisconsin in 2011, the legislature changed the law on carry in vehicles. Carry in vehicles has several exceptions.

From jsonline.com:

The issue is whether you can drive with a loaded handgun within reach, even without having a concealed carry permit.

Guy A. Smith, a 52-year-old commercial truck driver from Merrill, believes, as does a gun rights organization, that you can. That's why he said he made no effort to hide his revolver when inspectors entered his big rig at a weigh station in Pleasant Prairie in June.

Inspectors saw it on the floor of his cab via an overhead camera, then approached Smith and cited him for carrying a concealed weapon, a misdemeanor, and seized his gun.

Smith's case was set for a jury trial Monday, but the prosecutor seemed ambushed by the defense claim that a different Wisconsin law seems to specifically allow Smith's actions. The statute on transport of weapons says,

" ... no person may place, possess, or transport a firearm, bow, or crossbow in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun."

At the time of passage, I thought the change was meant to apply to open carry. Several changes in the law clarified that open carry was legal, was not "disorderly conduct" and was a protected activity. It only made sense that open carry in a vehicle would be protected as well. Concealed carry was allowed for with a concealed carry permit.

Edit:  Assistant District Attorney Thomas Binger may appeal if he believes the Judge ruled incorrectly or if he believes incorrect procedure was used. Binger has already stated that he chooses not to read the law the way it was written. He says that would nullify Wisconsin's concealed carry law, Act 35. The Judge corrected Binger, saying it would only nullify the statute in cars.

I expect the jury to find Smith not guilty. If found guilty, I expect the defense to appeal.

Wisconsin Carry is funding the case. If the Constitutionality defense is included, the Supreme Court will have a chance to clarify that the Article 1, Section 25 of the Wisconsin Constitution, ratified by 74% of the voters, actually means what it says.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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