State v. Munir A. Hamdan

APPEAL from a judgment the Circuit Court for Milwaukee County, Robert Crawford, Circuit Court Judge. Reversed and remanded.

¶1 DAVID T. PROSSER, J. This case involves an incident that occurred in the city of Milwaukee on the evening of November 26, 1999. The defendant, Munir Hamdan (Hamdan), owned and operated a grocery store on West Capitol Drive. As time came to close the store, Hamdan removed a handgun that he kept under the counter near the cash register and carried it into a back room for storage. At some point he wrapped the gun in a plastic bag.

¶2 While Hamdan was in the back room, two plain clothes Milwaukee police officers entered the store. Hamdan's son pressed a buzzer, summoning his father, and Hamdan shoved the wrapped gun into his trouser pocket and went out to meet the visitors.

¶3 The officers explained that they were conducting a license check. Hamdan led one of the officers to a glass-enclosed area where he kept the cash register and showed him the licenses. During the ensuing conversation, the officer asked Hamdan if he kept a gun in the store and, if so, where it was located. Hamdan answered affirmatively and then pulled the wrapped gun from the front pocket of his trousers. The officers confiscated the gun but did not arrest Hamdan or charge him with an offense.

¶4 Hamdan was subsequently charged with carrying a concealed weapon, in violation of Wis. Stat. § 941.23 (1999-2000),[1] and convicted at a jury trial. He appealed his conviction and his case is before this court on bypass of the court of appeals pursuant to Wis. Stat. § (Rule) 809.60.

¶5 We are asked to determine what effect, if any, a new amendment to the Wisconsin Constitution has on the State's ability to prosecute and punish the carrying of concealed weapons. The new amendment, Article I, Section 25, declares that the people have the right to keep and bear arms for lawful purposes.[2] While Wis. Stat. § 941.23 (the CCW statute) withstands a facial challenge to its constitutionality under the amendment, see State v. Cole, 2003 WI 112, ¶27, ___ Wis. 2d ___, ___ N.W.2d ___, we recognize that there are now circumstances in which a strict application of the CCW statute may result in an unreasonable limitation of the new constitutional right. In Hamdan's case, we must determine whether the constitutional right to keep and bear arms for security or defense permitted Hamdan to carry a concealed weapon in his store under the circumstances of this case, notwithstanding the CCW statute.

¶6 We conclude that it was unreasonable and unconstitutional to apply the CCW statute to punish Hamdan on the facts as we understand them. Strict application of the CCW statute effectively disallowed the reasonable exercise of Hamdan's constitutional right to keep and bear arms for the lawful purpose of security. Considering the diminished public interest in applying the CCW statute in the context of Hamdan's conduct, 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. This right, when exercised within one's own business and supported by a factual determination that no unlawful purpose motivated concealment of the weapon, will usually provide a constitutional defense to a person who is charged with violating the CCW statute. Because Hamdan was not permitted to assert this defense, his challenge to the CCW statute was not fully addressed by the circuit court and his conviction under Wis. Stat. § 941.23 was not proper.

I. BACKGROUND FACTS

¶7 Munir Hamdan had owned and operated the Capitol Foods grocery and liquor store since 1987. The store was a family-run business, open 365 days a year and operated from 9:00 a.m. until 8:00 or 9:00 p.m., depending on the time of year. Hamdan's wife and 15-year-old son were present in the store on the evening of November 26, 1999. The family had just completed a meal in a back room that functions as a kitchen and dining quarters for family members who congregate and work at the store. It was after 8:00 p.m., the night after Thanksgiving, when the officers came in. The front door of the store was not locked, but Hamdan insisted that he had begun the process of closing up.

¶8 This is the contextual information the jury was permitted to hear. Most of Hamdan's proffered evidence was not admitted. See infra ¶14. For instance, the jury was not told that Hamdan's store is located in a high-crime neighborhood. According to Milwaukee police data, there had been at least three homicides, 24 robberies, and 28 aggravated batteries reported that year in the small census tract that included Hamdan's store.[3] There had been violent criminal episodes both inside and immediately outside Hamdan's store. Between 1993 and 1999, the store was the target of four armed robberies——three of which were successful——and the site of two fatal shootings. Hamdan claims that on one occasion an armed assailant held a gun to his head and actually pulled the trigger. The weapon misfired and Hamdan survived. In February 1997 Hamdan engaged in a struggle with an armed assailant who was attempting to rob the store. In the course of this attack, Hamdan shot and killed the robber in self-defense. The other homicide at the store occurred in April 1998. Incidents of violent crime continued in and around the store after Hamdan's prosecution, including shootings that resulted in bullets striking the store.

¶9 As a result of these general and specific concerns for the safety of himself, his family, and his customers, and for the security of his property, Hamdan kept a handgun under the store's front counter next to the cash register during store hours. The jury was not told the basis of Hamdan's motivation for possessing this weapon or that the handgun seized was the same handgun Hamdan used to defend himself from the February 1997 attacker. The jury was told that Hamdan kept the handgun in a locked area closed off from the public and that local law enforcement knew that Hamdan kept a gun for protection.

¶10 The jury also learned from the State's only witness, Officer Bodo Gajevic, that "the majority of the store owners [in the area] have some type of weapon on the premises based on my experience." In fact, Officer Gajevic explained that he often checked these weapons to see if they were operating properly.

II. LITIGATION HISTORY

¶11 Six days after being visited by the officers, Hamdan met with an assistant district attorney for Milwaukee County to discuss the incident. After this conference, he was charged with carrying a concealed weapon. Hamdan filed a motion to dismiss the charge, challenging the enforcement of the CCW statute on constitutional grounds. He contended that prior court decisions broadly construing the phrase "goes armed" are no longer valid given the right to keep and bear arms conferred by Article I, Section 25 of the Wisconsin Constitution. Hamdan argued that his prosecution under the CCW statute would impermissibly infringe upon his rights under the newly enacted amendment. Hamdan also contended that no presumption of constitutionality should be accorded the CCW statute because it significantly predated the constitutional amendment.[4]

¶12 After the parties had briefed this issue, the circuit court denied Hamdan's motion. Milwaukee County Circuit Judge Robert Crawford concluded that Wisconsin's ban against carrying concealed weapons is not an overly broad infringement of Hamdan's state constitutional right to keep and bear arms. The court reasoned that, as part of the legislature's inherent police power, it could reasonably require that a storeowner openly display a handgun——for instance, by placing it in a holster——if the storeowner kept a handgun for security at his or her place of business.

¶13 In preparation for trial, Hamdan and the State submitted competing motions in limine regarding the admission of evidence to support a defense of privilege. The State contended that Hamdan should be prohibited from introducing evidence of crime statistics and prior robberies at the store, as well as Article I, Section 25, arguing that there is no privilege, as a matter of law, under the privilege statute (Wis. Stat. § 939.45) in these circumstances. Hamdan argued to allow such evidence. He theorized that a privilege to carry a concealed weapon——a privilege relating to the defense of property and protection against retail theft or to necessity——was grounded in the new amendment. Hamdan also submitted a proposed modified jury instruction for jury consideration of these matters.

¶14 The circuit court denied Hamdan's motion to admit this evidence. The court determined that there is no statutory privilege under § 939.45 allowing a person to go armed with a concealed weapon no matter what the threats to that person might be. In reaching this conclusion, the court denied that the Wisconsin Constitution supports any common law privilege to carry concealed weapons in certain circumstances. As a result, the evidence was excluded and the final jury instructions contained no mention of Article I, Section 25, the history of crimes in and around Hamdan's store, or any defense of privilege.

¶15 After a jury trial on July 11, 2000, Hamdan was found guilty of carrying a concealed weapon. At sentencing, the court noted a need to clarify the reach of state gun laws and also remarked upon the jury's consternation in finding Hamdan guilty for violating the statute in this case. The court ultimately fined Hamdan one dollar. Hamdan sought appellate review, and we granted his petition to bypass the court of appeals.

III. ISSUES PRESENTED AND STANDARD OF REVIEW

¶16 This case, along with the companion case of Cole, decided today, represents our first opportunity to interpret Wisconsin's new right to "keep and bear arms."[5] Article I, Section 25 became part of the Wisconsin Constitution on November 30, 1998. It provides in its entirety: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

¶17 We are asked to interpret this provision in the context of a challenge to Wisconsin's sweeping prohibition on the carrying of concealed weapons. This prohibition is codified in Wis. Stat. § 941.23 as follows: "Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor."

¶18 Hamdan presents three related theories why his conviction under the CCW statute must be reversed. First, he argues that the adoption of Article I, Section 25 requires a new construction of the CCW statute. He contends that, properly construed, the statute no longer reaches his conduct. Second, he argues that the adoption of Article I, Section 25 alters the defense of privilege and gives him a privilege defense on these facts. Third, he argues that his conviction under the CCW statute impairs constitutional rights protected by Article I, Section 25 and cannot stand. All three theories have at their core certain suppositions regarding the effect of the Article I, Section 25 on the CCW statute. The first two theories claim that adoption of the amendment invalidates elements of prior case law interpreting both the CCW statute and its susceptibility to defenses of common law and statutory privilege. Hamdan's third argument is a constitutional assault on the CCW statute based on an alleged need to reconcile the statute with the constitutional right to keep and bear arms.

¶19 These theories present questions of law. Interpretation of the state constitution and interpretation of a state statute are questions of law that this court decides de novo, benefiting from the analysis of the circuit court. State v. Gonzales, 2002 WI 59, ¶10, 253 Wis. 2d 134, 645 N.W.2d 264.

IV. STATUTORY INTERPRETATION

¶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. Dundon, 226 Wis. 2d 654, 661, 594 N.W.2d 780 (1999) (citing State v. Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977)). Second, the State must show that the defendant was aware of the presence of the weapon. Id. (citing Asfoor, 75 Wis. 2d at 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously litigated.

¶21 Hamdan asks the court to withdraw a series of appellate decisions interpreting the first element, which is based on the statutory phrase "goes armed." For more than 70 years, Wisconsin courts have defined the phrase "goes armed" in the CCW statute to mean that "the weapon was on the defendant's person or that the weapon must have been within the defendant's reach and that the defendant was aware of the presence of the weapon." Asfoor, 75 Wis. 2d at 433-34 (citing Mularkey, 201 Wis. at 432); see also State v. Fry, 131 Wis. 2d 153, 183-84, 388 N.W.2d 565 (1986); Wis JI——Criminal 1335.

¶22 One of the leading cases in the interpretation of the "goes armed" element is State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993). In Keith, the court of appeals upheld the CCW conviction of a woman who was carrying a concealed weapon while she was standing on the front porch of the duplex where she was living. Id. at 77.[6] Rejecting the defendant's argument that the "goes armed" language requires a finding of locomotion, the court held that "there is no separate element requiring that a person actually go somewhere, and, therefore, carrying a concealed weapon 'does not necessarily import the idea of locomotion.'" Id. at 79 (quoting 94 C.J.S. Weapons § 8a (1956)).

¶23 Hamdan contends that Keith was wrongly decided. He argues that the CCW statute's use of the term "goes armed" necessitates a requirement of some locomotion on the part of a defendant. Comparing CCW statutes from other states that merely prohibit "carrying" concealed weapons, Hamdan reasons that the "goes armed" language of Wis. Stat. § 941.23 represents an implied exception for a person's residence or place of business. Under this view, Hamdan did not "go armed" while carrying his weapon because he never left his own store.

¶24 We reject Hamdan's proposed construction of the CCW statute and continue to adhere to prior interpretations of the "goes armed" language. While Hamdan emphasizes definitions of the verb "go" that discuss movement from point to point and the act of departure, other definitions of "go" or "goes" are more germane to the conduct intended to be prohibited. These definitions equate the act of going armed with the state or condition of performing an action.[7] To illustrate, if Hamdan were to come out of the back room without wearing shoes and socks, he could not deny that he was "going" barefoot.

¶25 Even if we were to accept "locomotion" as a requirement, we fail to see how Hamdan's act of moving around his store would not be an act of "locomotion" under a common understanding of the term.[8] We would certainly have no problem finding that a customer was "going armed" if the customer moved around Hamdan's store with a pistol concealed in his trousers. More problematic is the fact that Hamdan's "locomotion" theory could limit application of the CCW statute in public areas where the weapon or the person was not moving. Hamdan contends otherwise. While the concept of locomotion requires movement from place to place, it does not delineate what spatial dimension is required of a "place." Hamdan defines "place" as being a particular structure (namely, one's home or place of business), and he suggests that only movement outside of that structure is "locomotion" or the act of "going." We find no support for this construction of "goes armed" in the text of the statute.

¶26 Finally, we note that at least one state with a CCW statute that similarly prohibits a person from "going armed" with a concealed weapon has exceptions for those who carry concealed weapons in their own home or place of business. See Iowa Code Ann. §§ 724.4(1), (4)(a) (West 1993). If the concept of going armed precluded application of a CCW law while a person was in or on the person's own property, these exceptions would be superfluous.

¶27 We decline to adopt a new construction of the CCW statute based on a revised characterization of the phrase "goes armed." We will not rewrite the CCW statute in the troublesome manner Hamdan advocates.[9]

¶28 During the time that Hamdan came from the back room and engaged in conversation with the police officers, he was going armed with a concealed and dangerous weapon. Because the jury concluded that Hamdan was aware of the weapon's presence and that the weapon was hidden or concealed from ordinary view, we conclude that Hamdan violated the CCW statute.

V. DEFENSE OF PRIVILEGE

¶29 Hamdan's second argument is that his conduct was privileged under Wis. Stat. § 939.45(1), (2), and (6). Hamdan maintains that this court's holdings in State v. Dundon, 226 Wis. 2d 654, 594 N.W.2d 780 (1999), and State v. Nollie, 2002 WI 4, 249 Wis. 2d 538, 638 N.W.2d 280, which significantly limited the defense of privilege for CCW offenses, are now suspect by virtue of the adoption of Article I, Section 25.

¶30 Hamdan's reliance on § 939.45(1) and (2) clearly fails. Wisconsin Stat. § 939.45(1) permits a defendant charged with a crime a defense of privilege "[w]hen the actor's conduct occurs under circumstances of . . . necessity so as to be privileged under s. . . . 939.47." Wis. Stat. § 939.45(1).[10] Hamdan claims that the unpredictable nature of violence in the neighborhood immediately surrounding his store subjects him and his family to risks that make it necessary for him to keep a concealed weapon in his store. This may be true. However, the defense of necessity, by its plain language, exists only when a defendant acts in response to "natural physical forces," not human forces that pose potential dangers. See State v. Olsen, 99 Wis. 2d 572, 576, 299 N.W.2d 632 (Ct. App. 1980); see also Drane v. State, 29 Wis. 2d 208, 211 n.4, 138 N.W.2d 273 (1965). The existence of random, albeit frequent, criminal conduct in one's vicinity does not qualify as a "natural physical force" under the law. See Dundon, 226 Wis. 2d at 666-67.

¶31 Similarly, § 939.45(2), which incorporates by reference the privileges of self-defense, defense of others, defense of property, and protection against retail theft, is not available to Hamdan.[11] In Nollie, we refused to recognize a privilege to carry a concealed weapon without satisfying the stringent requirements of statutory self-defense.[12] Nollie, 249 Wis. 2d 538, ¶27. We held that the defendant's assertions that he was in a high crime neighborhood, that he was in a vulnerable position while changing his tire, and that he was faced with a potential threat (four young men were allegedly nearby, being loud and profane) were insufficient to constitute an imminent and specific threat under the self-defense privilege statute. Nollie, 249 Wis. 2d 538, ¶23-25.

¶32 Hamdan argues that the concerns that inspired him to carry a concealed weapon in his store were specific and imminent, based on his past experiences with crime and the high incidence of crime in the neighborhood, thus making his actions privileged. Nollie made it clear, however, that such general assertions are insufficient to support a defense of privilege. As we stated, "To allow an individual to claim self-defense under such circumstances would essentially allow anyone walking in a 'high crime neighborhood' to conceal a weapon——a situation that . . . would eviscerate the legislature's intent in making carrying a concealed weapon a crime." Id., ¶26.[13]

¶33 We have little doubt that the dangers facing Hamdan while operating his store were genuine. However, he did not face specific and imminent threats on the night of November 26, 1999, merely because of the location of his store in a high-crime neighborhood and his past victimization by criminal activity. The statutory elements of sections 939.48 and 939.49 contemplate the actual presence of an unlawful interference, which was absent in this case.[14]

¶34 Finally, Hamdan relies upon § 939.45(6), which provides for a defense when "the actor's conduct is privileged by the statutory or common law of this state." He asserts either a common law privilege, such as the one this court recognized in State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996),[15] or a "statutory" privilege based upon Article I, Section 25.

¶35 In Coleman we recognized a narrow common law privilege to the crime of being a felon in possession of a firearm. This privilege requires a defendant to prove multiple factors. Coleman, 206 Wis. 2d at 210-211.[16] However, in Dundon, 226 Wis. 2d at 671, we declined to apply the Coleman test to the crime of carrying a concealed weapon. In Dundon, the manager of a gas station was arrested for carrying a concealed weapon after he placed a handgun in his waistband while transporting money from his station to a bank. Id. at 657-58. The defendant asserted that he was privileged to carry a concealed weapon based upon his prior experiences as a victim of assault. The court declined to link the privilege under Coleman to the crime of carrying a concealed weapon or to find any common law privilege to CCW offenses. Id. at 677. In doing so, we noted that, in 1878, the legislature repealed the exact type of privilege sought by Dundon. Id. at 671-72. It is now recognized that the holding in Dundon forecloses application of the Coleman privilege to CCW offenses. See Nollie, 249 Wis. 2d 538, ¶18. The adoption of a constitutional amendment recognizing the right to keep and bear arms does not affect the soundness of the preceding analysis.

¶36 Notwithstanding the absence of a common law privilege, Hamdan maintains that Article I, Section 25 provides a basis in law to support a "statutory" privilege. If we assumed that the Wisconsin Constitution could serve as the basis for a "statutory" privilege under § 939.45(6), we would still conclude that the constitution would have to spell out the scope of the privilege——the nexus between the privilege and the specific criminal conduct——to be applicable. Article I, Section 25 recognizes a right to keep and bear arms generally, but it does not express a privilege to exercise that right in a particular manner or particular circumstance. These are essential attributes of a statutory privilege. Article I, Section 25 does not create a "statutory" privilege to the crime of carrying a concealed weapon.

¶37 Under the facts of this case and in the context of the CCW statute, we do not believe that modifying the principles underlying the law of privilege, as codified in Wis. Stat. § 939.45 and interpreted in prior decisions of this court, is the appropriate method of effectuating the rights guaranteed under Wisconsin's right to keep and bear arms amendment.

VI. CONSTITUTIONALITY "AS APPLIED"

¶38 The adoption of Article I, Section 25 did not affect prior judicial interpretations of the CCW statute or the availability of privilege defenses for CCW crimes, but it did create an obligation to protect rights guaranteed by the amendment.

¶39 The State's broad police power to regulate the ownership and use of firearms and other weapons continues, notwithstanding Article I, Section 25. Nonetheless, the amendment's broad declaration of the right to keep and bear arms inevitably impacts the exercise of that power. In this state, constitutional rights do not expand the police power; they restrict the police power. See Buse v. Smith, 74 Wis. 2d 550, 564, 247 N.W.2d 141 (1976); see also Robert Dowlut & Janet A. Knoop, State Constitutions and The Right to Keep and Bear Arms, 7 Okla. City U. L. Rev 177, 185 (1982) (describing the general application of this principle). Thus, courts may limit the broad application of the CCW statute in those circumstances where limitation is necessary to narrowly accommodate the constitutional right to keep and bear arms for lawful purposes.[17]

¶40 The nature of this limitation is well established. Faced with similar challenges, other states applying a reasonableness standard in the context of regulating firearms have recognized that "[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms." State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986) (emphasis added).[18] Some states have employed language less demanding than "destruction," assuring that "regulations or restrictions [on a constitutional right to bear arms for defensive purposes] do not frustrate the guarantees of the constitutional provision." City of Princeton v. Buckner, 377 S.E.2d 139, 145 (W. Va. 1988) (emphasis added);[19] see also State v. Kessler, 614 P.2d 94, 99 (Or. 1980) (stating that regulations restricting the possession or manner of carrying personal weapons are valid "if the aim of public safety does not frustrate the guarantees of the state constitution"); State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983) (holding that a limitation on the right to bear arms is permissible when the means chosen to protect the public "do[es] not unreasonably interfere with the right"). Case law reveals that while the right to bear arms for lawful purposes is not an absolute, neither is the State's police power when it eviscerates this constitutionally protected right.

¶41 Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25. The State must be especially vigilant in circumstances where a person's need to exercise the right is the most pronounced. If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained.

¶42 Hamdan insists that enforcement of the CCW statute on the facts of his case unreasonably impaired his constitutional rights. He contends that, even if the CCW statute technically prohibited his conduct and even if his conduct was not privileged, it was still unconstitutional to apply the statute in the circumstances of his case. Hamdan argues that the right to bear arms provision guarantees, at a minimum, the right to carry a concealed weapon on one's own business property for defense or security when there is a compelling need to do so. The State, on the other hand, maintains that the addition of Article I, Section 25 has had little, if any, impact on the constitutional validity of applying the CCW statute. It argues that while Hamdan may have the right to possess a weapon in his store for the lawful purposes of security and defense, he must continue to possess that weapon openly.

¶43 We assess the merits of Hamdan's "as applied" challenge by considering the facts of his case, not hypothetical facts in other situations. See State v. Stevenson, 2000 WI 71, ¶12, 236 Wis. 2d 86, 613 N.W.2d 90; State v. Janssen, 219 Wis. 2d 362, 371, 580 N.W.2d 260 (1998). The State prosecuted Hamdan for carrying a handgun in his trousers pocket, in his own small store, at the time he did, and around the persons he did. The issue is whether the State may restrict the carrying of a concealed firearm in these circumstances without unreasonably infringing Hamdan's rights under Article I, Section 25.

¶44 As we explained in Cole, when an exercise of the State's police power implicates the constitutional right to keep and bear arms, the validity of the exercise is measured by the reasonableness of the restriction on the asserted right. Cole, ___ Wis. 2d ___, ¶26 (citing Jeffrey Monks, The End of Gun Control or Protection Against Tyranny?: The Impact of the New Wisconsin Constitutional Right to Bear Arms on State Gun Control Laws, 2001 Wis. L. Rev. 249, 275 n.147). This same analytical approach guides judicial determination of whether a particular application of an otherwise reasonable restriction on the right to bear arms is still constitutionally valid.

¶45 In analyzing reasonableness, one must balance the conflicting rights of an individual to keep and bear arms for lawful purposes against the authority of the State to exercise its police power to protect the health, safety, and welfare of its citizens. See Dano v. Collins, 802 P.2d 1021, 1024 (Ariz. Ct. App. 1990); People v. Blue, 544 P.2d 385, 390-91 (Colo. 1975); Rawlings v. Ill. Dep't of Law Enforcement, 391 N.E.2d 758, 763 (Ill. Ct. App. 1979) (balancing the sufficiency of the individual's interest in possessing arms with the legislation restricting exercise of that interest); City of Seattle v. Montana, 919 P.2d 1218, 1224 (Wash. 1996); Buckner, 377 S.E.2d at 148-49; see also Michael D. Ridberg, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. Chic. L. Rev. 185, 202-03 (1970) ("The scope of permissible regulation in states with arms provisions is dependent upon a balancing of the public benefit to be derived from the regulation against the degree to which it frustrates the purposes of the provision."). In State v. McAdams, 714 P.2d 1236 (Wyo. 1986), the Wyoming Supreme Court explained this need for balance as follows:

[A] balance must be struck between the individual's right to exercise each constitutional guarantee and society's right to enact laws which will ensure some semblance of order. As these interests will necessarily conflict, the question then becomes which party should accept the encroachment of its right. The solution to the conflict is judicial in nature. Courts must be and are, whether willingly or not, the ultimate arbiters as to whether or not there is, in a particular case, an unwarranted invasion of constitutionally guaranteed rights.

Id. at 1237-38. We agree with this characterization of the constitutional inquiry, including the indispensable role of courts in determining whether enforcement of the CCW statute has unreasonably impaired the constitutional right.

¶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. Perez, 2001 WI 79, 244 Wis. 2d 582, 628 N.W.2d 820. It is constitutional. We hold that only if the public benefit in this exercise of the police power 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.

¶47 We begin by examining the manner in which the State prohibits the carrying of concealed weapons and whether its reasons for doing so are strong in the context of Hamdan's conduct. This inspection will reveal the comparative burden the CCW statute imposes upon the rights declared in Article I, Section 25.

¶48 Wisconsin's current CCW statute is very broad. It is essentially a strict liability offense.[20] The legislature has not authorized any statutory defenses or exceptions (other than peace officers) to the broad prohibition found in the statute. As presently construed, the statute prohibits any person, except a peace officer, from carrying a concealed weapon, regardless of the circumstances, including pursuit of one of the lawful purposes enumerated in Article I, Section 25. In addition, the statute reaches unloaded firearms as well as loaded ones, see Wis. Stat. § 939.22(10) (defining a "dangerous weapon" under the CCW statute), and applies to any weapon within a individual's reach, see Asfoor, 75 Wis. 2d at 433-34, if the person knows the weapon is present.

¶49 The breadth of § 941.23 is better appreciated by comparing it with the law in other jurisdictions. In 1998 Wisconsin joined 43 other states that have established a constitutional right to bear arms.[21] However, Wisconsin remains one of only six states that generally disallow any class of ordinary citizens to lawfully carry concealed weapons. See J. Harvie Wilkinson III, Federalism for the Future, 74 S. Cal. L. Rev. 523, 525 n.4 (2001).[22] Each of the five other states (Illinois, Kansas, Missouri, Nebraska, and Ohio) also has a constitutional provision granting the right to keep and bear arms.

¶50 Upon closer examination, however, there are few similarities between Wisconsin's CCW law and the CCW laws of these other five states. First, the Kansas right to bear arms amendment is one of only two state right to bear arms provisions that has been interpreted to confer a collective right, as opposed to an individual right, to bear arms.[23] Under such an interpretation, there would appear to be no constitutional impediment to a comprehensive CCW prohibition. In each of the other four "no-permit" states with a right to bear arms amendment,[24] Hamdan's conduct likely would have been exempted from punishment. For example, in Ohio, the state's CCW statute contains broad affirmative defenses, including the right of business owners and homeowners to lawfully carry a concealed weapon in certain circumstances. Ohio Rev. Code Ann. § 2923.12(C) (West 1997).[25] Similar defenses are provided in the other three states (Illinois, Missouri, and Nebraska) that do not presently have concealed carry permit laws.[26]

¶51 As a result of our legislature's decision to prohibit the carrying of concealed weapons under any circumstance,[27] the interaction between Wisconsin's CCW statute and the state constitution's right to bear arms is anomalous, if not unique. It appears that no other state, except perhaps Kansas, completely bans the carrying of concealed weapons by all citizens in all circumstances while simultaneously recognizing the right of individuals to own, possess, and carry firearms for lawful purposes. Hence, these other states provide little guidance on the particular issue of whether Hamdan's conduct, which violated the CCW law, may still be constitutionally protected.

¶52 We have described Wisconsin's exceptionally restrictive scheme to show how it heightens the conflict between the CCW statute and the rights in Article I, Section 25. The issue is whether and when this conflict requires us to limit the outer reaches of the CCW statute, in order to avoid unreasonable impairments on the right to bear arms.

¶53 We turn now to the public benefits underlying the CCW statute and how they apply in the circumstances of this case. As we explained in Cole, Wisconsin's prohibition of the carrying of concealed weapons is, as a general matter, a reasonable exercise of the police power, Cole, ___ Wis. 2d ___, ¶40, and serves many valuable purposes in promoting public safety.

¶54 In State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994), the court of appeals described the inspiration for CCW laws as follows:

The reason for these statutes, it has been said, is "because persons becoming suddenly angered and having such a weapon in their pocket, would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person."

Id. at 71 (quoting from Williams v. Commonwealth, 261 S.W.2d 807, 807-08 (Ky. 1953), with citations in Williams omitted). In short, carrying a concealed weapon permits a person to act violently on impulse, whether from anger or fear, and that is a prospect the law may discourage.

¶55 Another rationale for prohibiting concealed weapons is to put people on notice when they are dealing with an individual who is carrying a dangerous weapon. Notice of the presence of a dangerous weapon permits people, including law enforcement officers, to act accordingly. See Ross v. State, 566 S.E.2d 47, 49 (Ga. App. 2002); Anderson v. State, 614 A.2d 963, 965 (Md. 1992); 94 C.J.S. Weapons § 21 (2001). This objective is perhaps the most significant inspiration for CCW laws. A related concern is that concealed weapons facilitate the commission of crime by creating the appearance of normality and catching people off guard.

¶56 One additional rationale for the statute was recognized many years ago when this court stated that CCW laws promote "the preservation of life, by affixing the stigma of the law of the land to him who carries a concealed pistol, loaded or unloaded, except in the cases allowed by the statute." Mularkey, 201 Wis. at 431 (quoting from State v. Bollis, 19 So. 99, 100 (Miss. 1895)). These insightful words are a reminder that one of the purposes of criminalizing conduct is to stigmatize socially malfeasant behavior.

¶57 None of these rationales is particularly compelling when applied to a person owning and operating a small store. Although a shopkeeper is not immune from acting on impulse, he or she is less likely to do so in a familiar setting in which the safety and satisfaction of customers is paramount and the liability for mistake is nearly certain. There is less need in these circumstances for innocent customers or visitors to be notified that the owner of a business possesses a weapon. Anyone who enters a business premises, including a person with criminal intent, should presume that the owner possesses a weapon, even if the weapon is not visible.[28] A shopkeeper is not likely to use a concealed weapon to facilitate his own crime of violence in his own store. The stigma of the law is inapplicable when the public expects a shopkeeper to possess a weapon for security.

¶58 As one court recently observed, "the criminality of gun possession is mitigated in the two places where an otherwise law-abiding person is likely to spend most of his time and to deserve the greatest expectation of personal security: his home and his workplace." People v. Buckmire, 638 N.Y.S.2d 883, 885 (N.Y. Sup. Ct. 1995). We agree.

¶59 The purposes of a concealed carry prohibition are often less compelling in settings in which the person bearing the concealed weapon is an owner of the property on which he or she goes armed. Although the considerations discussed above are not determinative of the reasonableness of prohibiting a shopkeeper from carrying a concealed weapon, they weigh against the need for applying the CCW statute in such circumstances if the shopkeeper had a substantial interest in exercising a right under Article I, Section 25.

¶60 Strict application of the CCW statute in instances when the public interest in enforcing the statute is weak may unreasonably impair a person's right to keep and bear arms when the person's interest in exercising that right through the use of a concealed weapon is substantial. Our primary concern is examining the CCW prohibition in a circumstance in which the bearing of arms for the purpose of security is the most reasonable and the most necessary.

¶61 As alluded to above, many states have recognized, either by case law or statute, a special intersection between the right to bear arms and the protection of one's own property. For example, one state court has held that a citizen enjoys a common law right to carry a concealed weapon in the citizen's own home. See Gilio v. State, 33 P.3d 937, 941 (Okla. Civ. App. 2001). Other courts have recognized either a right to conceal weapons in one's own residence (as opposed to "carry" a concealed weapon in one's own premises), see In re Colby H., 766 A.2d 639, 646-50 (Md. Ct. App. 2001), or a more general right to keep weapons in one's home, see, e.g., Matthews v. State, 148 N.E.2d 334, 338 (Ind. 1958) (holding that provisions of a state law against carrying of a pistol without a license "do not restrict nor prohibit appellant or any other person from having a pistol in his home or 'fixed place of business' for the defense of himself . . ."). As the Ohio Supreme Court stated, "The right of defense of self, property and family is a fundamental part of our concept of ordered liberty. . . . For many, the mere possession of a firearm in the home offers a source of security." Arnold v. Cleveland, 616 N.E.2d 163, 169-70 (Ohio 1993).

¶62 In State v. Stevens, 833 P.2d 318 (Or. App. 1992), the Oregon Court of Appeals, in determining that the defendant could not be convicted for carrying a concealed switchblade within his own home, held that the state's CCW statute applies only to the carrying of concealed weapons outside one's own home. Id. at 319. The court reached this decision despite the absence of any express exception in Oregon's CCW statute to this effect, See Or. Rev. Stat. § 166.240 (2001), and despite Oregon's permit system under which persons may apply to carry a concealed weapon, see Or. Rev. Stat. § 166.291 (2001). The court explained two rationales for this conclusion:

First, the simple act of carrying a concealed switchblade within one's own home is not the type of unrestrained rights-exercising that "poses a clear threat" to public safety and that can therefore be regulated. Second, the state's interpretation would restrict the manner in which one could carry a legal weapon from room to room within one's home and would inhibit an act that is so intrinsic to ownership and self-defense that it would unreasonably interfere with the exercise of one's constitutional right to possess the switchblade.

Stevens, 833 P.2d at 319 (citation omitted). Excepting the reference to switchblades, which are per se illegal under Wisconsin law (Wis. Stat. § 941.24), we adopt Oregon's reasoning, appreciating its resonance in a state where a person has no option for pursuing official permission to lawfully carry a concealed weapon on his or her own premises.

¶63 The unreasonableness of applying certain gun regulations when they prohibit sensible conduct on one's own property is commonly recognized. As explained by one commentator:

[T]he purpose of statutes prohibiting the carrying of a weapon or the carrying of a concealed weapon except upon one's own premises or at his place of business [is] to allow persons to defend those areas in which they have a possessory interest, yet restrict the right to carry weapons to persons in such a position that they are not likely to be thrown into contact with the public and thus perhaps tempted, in a sudden quarrel, to use the weapon to the detriment of another.

Ruby B. Weeks, Annotation, Scope and Effect of Exception, in Statute Forbidding Carrying of Weapons, as to Person on His Own Premises or at His Place of Business, 57 A.L.R. 3d 938, § 2(a) (1974) (emphasis added). We also note the following analysis of the reasonableness of place and manner restrictions on the use of firearms, such as prohibitions on carrying concealed weapons:

[I]t might be argued that these laws impede the purpose of self-defense if they deny an individual the right to carry a weapon when he is most likely to be attacked. This argument is countered by two considerations: the danger of widespread presence of weapons in public places and police protection against attack in these places. Thus, in view of the benefit to be derived from these laws, place and manner regulations which do not restrict possession in homes or businesses do not seem to subvert unduly the self-defense purpose.

Ridberg, supra, at 204 (emphasis added).

¶64 The importance of being able to exercise the right to bear arms in the setting of one's own property is implied by the language of Article I, Section 25. The amendment enumerates several lawful purposes for which one can exercise the right to bear arms.[29] Although Hamdan's conduct could arguably be construed as undertaken for the purpose of "defense," we think the circumstances logically point to the purpose of "security."

¶65 The term "security" is not defined by the amendment, nor is it given any specific meaning elsewhere under Wisconsin law. The relevant legal definition of "security" is "[t]he state of being secure, esp. from danger or attack." Black's Law Dictionary 1358 (7th ed. 1999). The applicable definitions of "security" in lay dictionaries are enlightening. Some definitions include: "1. freedom from danger, risk, etc.; safety. . . . 3. something that secures or makes safe; protection; defense. . . . 5. precautions taken to guard against crime, attack, sabotage, espionage, etc." Random House Unabridged Dictionary 1731 (2d ed. 1993).[30] Security is also defined as "Something that gives or assures safety, as: . . . c. Measures adopted, as by a business or homeowner, to prevent a crime such as burglary or assault[.]" The American Heritage Dictionary of The English Language 1632 (3d ed. 1992) (emphasis added).

¶66 The common understanding of "security" does not implicate an imminent threat. Rather, it connotes a persistent state of peace. We believe the domain most closely associated with a persistent state of peace is one's home or residence, followed by other places in which a person has a possessory interest. A person is less likely to rely on public law enforcement for protection in these premises and is more likely to supply his own protection. In fact, a person who takes no initiative to provide security in these private places is essentially leaving security to chance. Firearms ownership has long been permitted in Wisconsin. We infer that the inclusion in the amendment of the right to bear arms for security was intended "to include a personal right to bear arms to protect one's person, family, or property against unlawful injury and to secure from unlawful interruption the enjoyment of life, limb, family, and property," Dowlut & Knoop, supra, at 190, subject to reasonable regulation.

¶67 Based on the foregoing considerations, we conclude that a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex when undertaken to secure one's home or privately owned business.[31] Conversely, the State's interest in prohibiting concealed weapons is least compelling in these circumstances, because application of the CCW statute "has but a tenuous relation to alleviation" of the State's acknowledged interests. Moore v. East Cleveland, 431 U.S. 494, 500 (1977) (Powell, J., plurality opinion). As stated recen


Case No.:		01-0056-CR

Complete Title:
		State of Wisconsin, Plaintiff-Respondent, v. Munir A. Hamdan, Defendant-Appellant.

		ON BYPASS FROM THE COURT OF APPEALS

Opinion Filed:		July 15, 2003
Submitted on Briefs:
Oral Argument:		November 14, 2002

Source of Appeal:
	Court:	Circuit
	County:	Milwaukee
	Judge:	Robert C. Crawford

Justices:
	Concurred:	BABLITCH, J., concurs (opinion filed). BRADLEY, J., concurs (opinion filed).
	Concured/Dissented:	CROOKS, J., concurs/dissents (opinion filed).
	Dissented:	ABRAHAMSON, C.J., dissents (opinion filed).
	Not Participating:

Attorneys:

(L.C. No.	99 CM 11570)
STATE OF WISCONSIN :		IN SUPREME COURT

State of Wisconsin, Plaintiff-Respondent, v. Munir A. Hamdan, Defendant-Appellant.			FILED JUL 15, 2003 Cornelia G. Clark Clerk of Supreme Court