¶ 1. JON P. WILCOX, J.
This case involves a constitutional challenge to Wis. Stat. § 941.23 (1999-2000),
¶ 2. Before trial, Cole pled guilty to the concealed weapons charge and a drug charge. After he was sentenced, Cole filed a motion to vacate the concealed weapons conviction on the basis that Wis. Stat. § 941.23 violates Article I, Section 25 of the Wisconsin Constitution. The postconviction motion was denied. Cole appealed and the court of appeals certified the matter to this court. We accepted certification, and we now uphold the decision of the circuit court.
¶ 3. The facts of this case are not in dispute. On the evening of November 6, 1999, Milwaukee police officers pulled over a vehicle driven by Minko Lewis for an expired registration and a defective brake lamp. Phillip Cole, the defendant in this case, was a passenger
¶ 4. On May 12, 2000, Cole pled guilty to charges of carrying a concealed weapon (CCW) in violation of Wis. Stat. § 941.23 and possession of tetrahydrocannabinols (marijuana) in violation of Wis. Stat. § 961.41(3g)(e).
¶ 5. On September 29, 2000, Cole filed a motion to vacate his conviction on the concealed weapons charge, alleging that the CCW statute is an unconstitutional infringement of his constitutional right to bear arms. The state constitutional right to bear arms is found in Article I, Section 25 of the Wisconsin Constitution and provides as follows: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const. art. I, § 25. Section 941.23 of the Wisconsin Statutes, which Cole claims violates that provision, states: "Any person
¶ 6. The Milwaukee County Circuit Court, the Honorable Charles F. Kahn, Jr., presiding, denied the postconviction motion, finding the statute to be constitutional. Cole appealed and on October 23, 2001, the court of appeals certified the matter to this court. This court then accepted certification on November 27, 2001.
¶ 7. This case was originally scheduled to be decided as a companion case to State v. Gonzales, 2002 WI 59, 253 Wis.2d 134, 645 N.W.2d 264. After oral argument in Gonzales, this court decided Gonzales on alternative grounds, finding that Gonzales' challenge to Article I, Section 25 of the Wisconsin Constitution failed because the amendment was not in effect on the day the defendant violated Wis. Stat. § 941.23. In an order dated June 13, 2002, this court then determined that State v. Cole would be held and heard with State v. Hamdan, 2003 WI 113, 264 Wis.2d 433, 665 N.W.2d 785.
¶ 8. The Wisconsin Legislature first passed a concealed weapons law in 1872. § 1, ch. 7, Laws of 1872; see also State v. Dundon, 226 Wis.2d 654, 671, 594 N.W.2d 780 (1999). As noted in Dundon, the original statute contained several exceptions to the prohibition that were then repealed in 1878.
¶ 9. Article I, Section 25 of the Wisconsin Constitution was adopted by the citizens of this state in November 1998. Jeffrey Monks, Comment, 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, 250. It became effective on November 30, 1998. See Gonzales, 253 Wis.2d 134, ¶¶ 8-9, 15, 29-30. The amendment was approved by a wide margin in the state
¶ 10. We first address the standards of review applicable in this case. The constitutionality of a statute presents a question of law that this court reviews de
Kayden Indus., Inc. v. Murphy, 34 Wis.2d 718, 729-30, 150 N.W.2d 447 (1967) (quoting Ekern v. Zimmerman, 187 Wis. 180, 184, 204 N.W. 803 (1925)) (internal citations and quotations omitted). For these purposes, this court has established that we should utilize three sources to determine a provision's meaning:
¶ 11. Generally, legislative enactments are entitled to a presumption of constitutionality. Aicher, 237 Wis.2d 99, ¶ 18; Thompson, 199 Wis. 2d at 680; Davis v. Grover, 166 Wis.2d 501, 520, 480 N.W.2d 460 (1992); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973) ("This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts."); Ruth E.J., 196 Wis. 2d at 801. This court has repeatedly held that it "indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality." Aicher, 237 Wis.2d 99, ¶ 18 (internal citation omitted); see also Post, 197 Wis. 2d at 301. A petitioner seeking to prove a statute unconstitutional faces a heavy burden. State v. Interstate Blood Bank, Inc., 65 Wis.2d 482, 488-89, 222 N.W.2d 912 (1974). In the face of a strong presumption, it falls to the party challenging the constitutionality of a statute to prove that the statute is unconstitutional beyond a reasonable doubt. Aicher, 237 Wis.2d 99, ¶ 19; Brandmiller v. Arreola, 199 Wis.2d 528, 536, 544 N.W.2d 894 (1996); Thompson, 199 Wis. 2d at 680; Fisher, 211 Wis. 2d at 669. This court has noted: "It is insufficient to merely establish doubt as to an act's constitutionality nor is it sufficient to establish the act is probably constitutional." Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149 (1985). If any doubt remains, this court must uphold the statute as constitutional. Id.
¶ 12. Cole argues that the presumption of constitutionality is inapplicable in this case because the CCW statute predates the constitutional amendment. We disagree. The purpose of the presumption of constitutionality does not appear to have any relation to whether the statute predates or postdates the constitutional provision. As this court has held: "The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature." Aicher, 237 Wis.2d 99, ¶ 20. Whether a statute predates or postdates a constitutional amendment, the legislature is still the more appropriate body for those considerations, and the judiciary rightly presumes the legislature makes such an assessment.
¶ 13. Rare exceptions to the presumption have been found, particularly where a statute infringes upon First Amendment rights or the process of enactment is suspect. See State v. Weidner, 2000 WI 52, ¶ 7, 235 Wis.2d 306, 611 N.W.2d 684; City of Oak Creek v. DNR, 185 Wis.2d 424, 437, 518 N.W.2d 276 (Ct. App. 1994) ("Although a statute generally enjoys a strong presumption of constitutionality, an exception to the rule occurs when the behavior of the legislature allegedly violates a law mandating the form in which bills must be enacted." (citation omitted)).
¶ 14. Cole cites to Kayden Industries and Schmeling v. Phelps to support his argument that because the amendment came into being after the statute, it should not be entitled to a presumption of constitutionality. We find both of these cases inapposite on this particular point. As noted by the State, Kayden has to do with the result when a new constitutional amendment is inconsistent with prior statutes and common law. See Kayden, 34 Wis. 2d at 731. The effect is to repeal the statute. Id. This result, however, has nothing to do with whether or not a party challenging constitutionality of a statute is relieved of the burden of overcoming a presumption of constitutionality. The main issue in this case is whether or not the statute is, in fact, inconsistent with the constitutional amendment. To accept Cole's interpretation of Kayden would be to skip over the process of determining inconsistency and actually create the opposite presumption. Regarding Cole's employment of Schmeling, we agree with the State's assertion that chronology did not dictate the result in that case. In Schmeling v. Phelps, 212 Wis.2d 898, 909, 569 N.W.2d 784 (Ct. App. 1997), the court of appeals found that where there is a conflict between the language of a statute and the language of the constitution, the language of the constitution prevails. The court of appeals stated:
Id. at 908-09 (internal quotations and citations omitted) (emphasis added). The presumption was never an issue in Schmeling. As in Kayden, the issue in Schmeling was the proper interpretation when a conflict exists, not the method of ascertaining if there is a conflict at all. Similarly, in La Follette v. Board of Supervisors of Milwaukee County, 109 Wis.2d 621, 629, 327 N.W.2d 161 (Ct. App. 1982), the court of appeals found that where statutes predated a constitutional provision and directly conflicted with the constitutional provision, the constitution prevailed over the statutes. If a conflict exists, it is clear that the constitutional amendment prevails over the inconsistent statute, but before that determination is made, as in this case, Cole has provided no reason to reject the presumption of constitutionality in this context.
¶ 15. Cole also cites City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988), for the proposition that other states have rejected a presumption of constitutionality in similar contexts. In Buckner, 377 S.E.2d at 144, the Supreme Court of Appeals of West Virginia held: "A constitutional amendment will supersede any inconsistent portions of antecedent constitutional or statutory provisions, as `the latest expression of the will of the people.'" (internal citations omitted). We find Buckner to be similar to Schmeling and Kayden. Buckner does not discuss the presumption of constitutionality; rather, it describes the effects if inconsistency exists, a very different question. The application of a presumption of constitutionality does not mean a statute
¶ 16. While we have found the cases cited above to be unhelpful, at least one other state has dealt with this type of situation in the context of gun control laws and applied a presumption of constitutionality. In State v. Comeau, 448 N.W.2d 595 (Neb. 1989), the Supreme Court of Nebraska recognized a presumption of constitutionality even where the statute at issue predated the constitutional amendment granting the right to bear arms. Nebraska's "Right to Bear Arms" amendment was adopted at the general election in 1988. Id. at 596. The gun control statutes at issue in the case were all in effect prior to that, yet the court stated: "It is fundamental that a statute is presumed to be constitutional, and the burden of establishing unconstitutionality is on the party attacking its validity." Id. That court went on to uphold the constitutionality of the statutes. Id. at 600.
¶ 17. This court has consistently used broad language in describing the presumption of constitutionality. Also, we have reaffirmed time and again the general rule that a presumption exists. For example, in Hammermill, this court, quoting Wisconsin precedent, stated: "All legislative acts are presumed constitutional, and every presumption must be indulged to sustain the law if at all possible." Hammermill, 58 Wis. 2d at 47 (internal quotations omitted) (emphasis added). In Ruth E.J., 196 Wis. 2d at 801, the court of appeals stated: "We presume all statutes are constitutional ... " (internal citation omitted) (emphasis
¶ 18. Given the above analysis demonstrating the general rule favoring application of the presumption and, in addition, finding no valid reason to reject the presumption in this context, we hold that it is appropriate to apply a presumption of constitutionality in this case. As we have noted:
Hammermill, 58 Wis. 2d at 47 (internal quotations omitted). We again noted in Aicher, 237 Wis.2d 99,
¶ 19. Cole next argues that this court should apply strict scrutiny, or at least intermediate scrutiny, in determining the constitutionality of Wis. Stat. § 941.23, because the right to bear arms is a fundamental constitutional right. The State questions whether the right to bear arms is fundamental and asserts that because of the compelling public health and safety reasons for the CCW statute, a reasonableness standard is appropriate. The State notes the reasonableness standard is what most other states have used.
¶ 20. We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution's Declaration of Rights to be amended. See Monks, The End of Gun Control, 2001 Wis. L. Rev. at 249. Article I, Section 25 explicitly grants a right to bear arms. Further, there is evidence in the legislative history of the amendment that it was intended to grant a "fundamental individual" right. See Memorandum from Shaun Haas, Senior Staff Attorney, Wis. Legislative Council, Analysis of 1995 Assembly Joint Resolution 53 and 1995 Senate Joint Resolution 7, Relating to the Right to Keep and Bear Arms (First Consideration) to Wisconsin State Representative David Travis and Interested Legislators, at 6 (Oct. 11, 1995) (hereinafter 1995 LCS Memorandum).
¶ 21. Nevertheless, we do not agree with Cole's position that strict scrutiny or intermediate scrutiny is required in this case. This court has previously recognized that it need not apply strict scrutiny every time a
¶ 22. Generally, when other courts have evaluated challenges to the validity of gun control statues under state constitutional provisions, the test has been whether the statute constitutes a "reasonable regulation" in light of the state's police powers. See, e.g., People v. Swint, 572 N.W.2d 666 (Mich. Ct. App. 1997); State v. Ricehill, 415 N.W.2d 481 (N.D. 1987). "Police power" is an inherent authority of state governments. Reginald D. v. State, 193 Wis.2d 299, 308, 533 N.W.2d 181 (1995); Interstate Blood Bank, 65 Wis. 2d at 490; Monks, The End of Gun Control, 2001 Wis. L. Rev. at 259 n.69. It covers "all matters having a reasonable relation to the protection of the public health, safety, or welfare." Carnation Milk Prods. Co. v. Emery, 178 Wis. 147, 153, 189 N.W. 564 (1922).
¶ 23. Even courts that have found such a right to be fundamental have used a reasonableness standard. See, e.g., Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993). If this court were to utilize a strict scrutiny standard, Wisconsin would be the only state to do so. Monks, The End of Gun Control, 2001 Wis. L. Rev. at 291. We decline such an invitation, because we agree with the courts of various other states that the proper
¶ 24. Cole acknowledges that the right to bear arms is not absolute. Cole has conceded that some regulation is appropriate, but insists that the prohibition of all concealed weapons extends too far and impermissibly infringes the constitutional right. In the process of drafting Article I, Section 25, the legislature was made aware that "no current state constitutional provision guaranteeing the right to keep and bear arms has been found to create an absolute right." 1995 LCS Memorandum, at 13. Further, it has been noted: "[E]ven in the absence of such specific authorization [for legislative control], the judiciary has long recognized that the exigencies of society require limits on the scope of the arms right. Michael D. Ridberg, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. Chi. L. Rev. 185, 187 (1970).
¶ 25. There are few, if any, absolute rights. As this court recognized long ago: "Indeed, most of the legislative acts which fill our statute books detract in some measure from the absolute freedom of the individual to act wholly at the dictate of his will, and yet are of either decided or fully recognized constitutionality." Zillmer v. Kreutzberg, 114 Wis. 530, 533, 90 N.W. 1098 (1902). Further,
Id. at 536-37. Moreover, this authority to enact legislation using police power has been held to "embrace every law or statute which concerns the whole or any part of the people...." Id. at 154. As noted by the court of appeals in Fisher, 211 Wis. 2d at 672, even fundamental rights are subject to reasonable regulation to protect legitimate public interests. The Nebraska Supreme Court agreed: "There are very few rights which are absolute, and this is of necessity. In every phase of everyday experience, there are extremes beyond which some restraint or regulation is necessary for the common good." Comeau, 448 N.W.2d at 597.
¶ 26. Although Article I, Section 25 creates a fundamental right, as the above analysis shows, such a right is still subject to reasonable restriction. As such, we find the correct test to be whether or not the restriction upon the carrying of concealed weapons is a reasonable exercise of the State's inherent police powers. Such a test should not be mistaken for a rational basis test. The explicit grant of a fundamental right to bear arms clearly requires something more, because the right must not be allowed to become illusory. See State v. Reid, 1 Ala. 612 (1840); Benjamin v. Bailey, 662 A.2d 1226, 1234 (Conn. 1995); State v. Ricehill, 415 N.W.2d 481, 483 (N.D. 1987); State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986). Monks has described the difference:
¶ 27. As we have noted, numerous other jurisdictions have applied a reasonableness test. See, e.g., People v. Atencio, 878 P.2d 147, 149-50 (Colo. Ct. App. 1994); Rawlings v. Illinois Dep't of Law Enforcement, 391 N.E.2d 758, 762-63 (Ill. App. Ct. 1979); Ricehill, 415 N.W.2d at 483; State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983); McAdams, 714 P.2d at 1237. We agree that the reasonableness test is appropriate. Under circumstances such as those in this case, the reasonableness test focuses on the balance of the interests at stake, rather than merely on whether any conceivable rationale exists under which the legislature may have concluded the law could promote the public welfare. See State v. Hamdan, 264 Wis.2d 433, ¶¶ 40-41, 45 (describing application of the reasonableness standard and various other cases applying the standard); Ridberg, Impact of Right to Bear Arms Provisions, 38 U. Chi. L. Rev. at 202-03 ("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 purpose of the provision.").
¶ 28. Having laid out the appropriate standards for our analysis, we move now to application of the test. We face the same task many other state courts have already taken on—to determine whether, in balancing the authority of the state to enact legislation for the health, safety and welfare of the public as implemented here through the CCW statute against the right to bear arms, the legislature has gone too far and unreasonably impinged the constitutional right to bear arms. See, e.g., Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1991) (concluding that the prohibition of concealed weapons does not frustrate that state's constitutional right to bear arms). We conclude that the CCW statute is a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised. It does not unreasonably infringe upon a citizen's ability to exercise the right.
¶ 29. First, based on the text of the constitution and the legislative history of the amendment, we note our agreement with both parties that Article I, Section 25 of the Wisconsin Constitution grants an individual, rather than a collective, right.
¶ 30. A "facial" challenge to the constitutionality of a statute means that the "challenger must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional." State v. Wanta, 224 Wis.2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999). Cole asserts that the CCW statute is facially unconstitutional for two reasons: 1) because the amendment and the statute are incompatible, the amendment effectively repeals the statutory restriction; and 2) the statute is too broad and not narrowly tailored to serve its purpose
¶ 31. In interpreting a constitutional provision, we first turn to the plain meaning of the amendment in context. Cole argues that the plain language of the amendment is unambiguous and clearly incompatible with the broad prohibition upon carrying concealed weapons in Wis. Stat. § 941.23. As such, he argues, the statute is effectively repealed. However, both parties in this case have "read in" exceptions to the text of the amendment.
¶ 32. Cole points out that the right to bear arms amendments in many states explicitly leave open the possibility of legislative restriction, some even specifically singling out restrictions upon carrying concealed weapons. See, e.g., Colo. Const. art. II, § 13 (2002); Fla. Const. art. I, § 8(a) (2002); Ill. Const. art. I, § 22 (2000). We are not persuaded that the absence of such language
¶ 33. Other states have found that CCW statutes can coexist with a constitutional right to bear arms, holding the laws to be reasonable time, place, and manner restrictions. In McAdams, 714 P.2d at 1236-37, for example, a Wyoming defendant raised a plain language argument much like the one presented by Cole. The Wyoming Constitution, Article I, Section 24 provides: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." See McAdams, 714 P.2d at 1236 (quoting Wyo. Const. art. I, § 24). Section 6-8-104(a) of the Wyoming Statutes states, in relevant part, that "[a] person who wears or carries a concealed deadly weapon is guilty of a misdemeanor." Id. (quoting § 6-8-104(a) of the Wyoming Statutes). McAdams was pulled over and during the course of the stop, officers noticed she had a knife in a sheath in the breast pocket of her jacket. Id. McAdams claimed that the "plain language of Article I, Section 24 of the Wyoming Constitution leaves no room
¶ 34. The McAdams case also supports the conclusion that the CCW statute is sufficiently narrow. As we have discussed, the CCW statute must be "reasonable" restriction upon the right to bear arms in order to pass constitutional muster. This requires us to balance the interests involved. In McAdams, the court aptly noted: "The police power cannot ... be invoked in such a manner that amounts to the destruction of the right to bear arms." Id. at 1237. In balancing the individual's constitutional right against the interest of society in enacting laws to "ensure some semblance of order," the court found that the concealed weapons statute did impose a limitation upon the right to bear arms, but that it constituted a reasonable restraint in light of the objectives of the statute. Id. at 1237-38. Similarly, in Dano, 802 P.2d at 1022, the Arizona Court of Appeals found that the constitutional right to bear arms is not unlimited and that "[t]he right to bear arms in self-defense is not impaired by requiring individuals to carry weapons openly." Article II, Section 26 of the Arizona Constitution provides: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Ariz. Const. art. II, § 26 (2000). Note that neither the Wyoming nor Arizona Constitution has an explicit grant of authority to restrict concealed weapons, yet courts in both states found restrictions to be a valid exercise of police power.
¶ 36. We next examine the legislative history of the amendment. The drafting records related to the right to bear arms amendment are informative. The amendment passed first consideration of the legislature in 1995. 1995 Enrolled Joint Resolution 27. In 1997, the second consideration was approved and the amendment moved to the voters for ratification. 1997 Assembly Joint Resolution 11. During this process, the Legislative Reference Bureau (LRB) and the Legislative Council Staff (LCS) authored several analyses related to the amendment to assist the legislature.
1995 LCS Memorandum at 13-14. Clearly, the legislature knew gun control laws existed and this memo shows that they also had reason to believe the passage of Article I, Section 25 would not impact the status of those laws.
¶ 37. A drafting memo by the LRB, authored by Jefren Olsen and attached to the 1995 LCS Memorandum, also supports the proposition that the legislature intended gun control legislation, including the concealed weapons law, to survive the new constitutional right to bear arms. This memo stated: "Another example of a restriction that is generally held to be reasonable is the prohibition on carrying concealed weapons." Drafter's Note, LRB-4287/ldn at 3, reprinted as attachment to 1995 LCS Memorandum.
¶ 38. A 1997 LCS memo reiterates the assertions of these previous memos. Shaun Haas, Wisconsin Legislative Council Staff Memorandum, Explanation of 1997 Assembly Joint Resolution 11, Relating to the Right to Keep and Bear Arms (Second Consideration) (January 22, 1997). In 1998, the LRB again analyzed the proposed amendment shortly before it went before the public for a vote. See Wisconsin Briefs, Constitutional Amendments to be Considered by the Wisconsin Voters, November 3, 1998, LRB-98-WB-10 (September
¶ 39. Our established constitutional analysis includes an examination of the practices in effect at the time the amendment was passed. Following the lead of the legislature, we have looked to the practices and interpretations of other states. Like proponents of the amendment, we are now convinced that the amendment does not affect the reasonable regulation of guns. The legislative history clearly suggests that the legislature did not intend to repeal reasonable gun laws such as the CCW statute. In examining the potential effects of the new right to bear arms, one article noted that the extensive 1995 LCS Memorandum reviewing the law of other states, lacked any reference to cases allowing prohibitions upon carrying a concealed weapon. McFadden, Wisconsin Bear Arms Amendment, 19 N. Ill. U. L. Rev. at 724-25. The article stated that although the 1995 LCS Memorandum concluded that prohibitions such as those restricting carrying concealed weapons have been found reasonable, it stated no case law to support the assertion. Id. at 725. While it is true that the 1995 LCS Memorandum dealt with case law analyzing other types of restrictions, we find LCS's examination of the general applicable standards to be correct and applicable to the CCW statute. Article I, Section 25 had potential implications on a wide variety of gun control laws, not just the CCW statute. The 1995 LCS Memorandum cites specifically to People v. Blue, 544 P.2d 385
¶ 40. Further, as our discussion has made clear, our own review of relevant case law from other states shows that CCW statutes like ours have been upheld in states with constitutional protections similar to ours. See Dano, 802 P.2d 1021; McAdams, 714 P.2d 1236. Cole argues that this court should follow Buckner, 377 S.E.2d at 140, 144-145, where the West Virginia Supreme Court of Appeals concluded that a prohibition on carrying certain types of dangerous weapons without a license, violated the state's right to bear arms amendment. Buckner is distinguishable from the case at hand, because the statute at issue there was more broad in that it prohibited all carrying of a weapon, concealed or unconcealed, if one did not have a license. See id. at 144-45; see also, Monks, The End of Gun Control, 2001 Wis. L. Rev. at 286 (noting that Buckner involves "a type of statute that Wisconsin does not have"). Even in Buckner, however, the court maintained that the right to bear arms is not absolute and is subject to reasonable regulation. Id. at 145-46. We may well differ with the Supreme Court of Appeals in West Virginia as to the scope of "reasonable" regulation, but our analyses are similar.
¶ 41. In contrast to the holding in Buckner, a court of appeals in Ohio has recently affirmed the
Id. (internal quotations omitted). We find this case to be more analogous than the Buckner case to the matter at hand. We are persuaded that the courts upholding concealed weapons statutes as reasonable restrictions upon a constitutional right to bear arms have properly balanced the interests of the individual and society. Also, given that our legislature was provided in-depth analysis of the general practices in other states, we conclude the legislative intent in creating Article I, Section 25 was not to repeal or invalidate existing gun control legislation, including Wis. Stat. § 941.23.
¶ 42. The final source this court is to consider in construing a constitutional amendment is the first related legislation passed after the amendment was ratified. In this case, the main statute of interest was passed long before the constitutional amendment was drafted. However, there is some legislative action that is of interest in our inquiry. As the amendment went through the drafting process to the present time, efforts have been made to pass laws creating a licensing system
¶ 43. This court has not been forced to look far to find support for its conclusion that Wis. Stat. § 941.23 is facially valid. As our foregoing discussion makes clear, other states have shown a great willingness to uphold "reasonable" restrictions upon the constitutional right to bear arms. We believe the reason is the compelling state interest in protecting the public from the hazards involved with certain types of weapons, such as guns. One article noted the prohibition of carrying concealed weapons is but one of a variety of laws restricting the place and manner in which arms may be carried, and concluded that such prohibitions "have little effect on widespread availability and ownership of weapons." Ridberg, Impact of Right to Bear Arms Provisions, 38 U. Chi. L. Rev. at 203-04. As such, the author concluded that it is unlikely that such laws would "frustrate the deterrence of oppression purpose." Id. at 204. The article noted that it may be argued, as Cole did here, that such laws impermissibly infringe upon the right of self-defense. However, there is a balance of interests that must be done, and in this situation, the public safety interests win out.
Id. We agree with this analysis. Many other states have noted the important safety interests protected by gun control laws. As we have noted, courts have found such laws to be reasonable time, place, and manner restrictions upon constitutional rights to bear arms. The CCW statute in particular serves an important public safety purpose:
Williams v. Commonwealth, 261 S.W.2d 807, 807-08 (Ky. 1953) (internal citations omitted). The Arizona Court of Appeals has noted similar reasoning: "[T]he statute has a reasonable purpose—it protects the public by preventing an individual from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion." Dano, 802 P.2d at 1023. The passage of years has not eliminated these dangers. If anything, the
¶ 44. Finally, we mention the intent of the Wisconsin voters. While this court cannot read the minds of Wisconsin citizens at the time they vote, since it is the voters that adopt the language of the constitution, indications of the will of the people are valuable. In the case of the right to bear arms amendment, public opinion polls at the time provide some interesting insights. Two statewide polls indicated that almost eighty percent of Wisconsinites opposed legalizing carrying of concealed weapons. Monks, The End of Gun Control, 2001 Wis. L. Rev. at 284. Given that the right to bear arms amendment was approved by a wide margin, the results of the poll at least support our view that Wis. Stat. § 941.23 and Article I, Section 25 were intended to be compatible. Such indications, in addition to a presumption of constitutionality, suffice to solidify our opinion that the CCW statute is facially constitutional.
¶ 45. Cole has also claimed that the CCW statute is unconstitutional "as applied" to him. He claims that the statute impermissibly abrogates the right of an individual to bear arms while riding in a vehicle. This claim must fail.
¶ 46. First, we find that Cole has waived the opportunity to challenge the constitutionality of Wis. Stat. § 941.23 "as applied." In State v. Trochinski, 2002 WI 56, ¶ 34 n.15, 253 Wis.2d 38, 644 N.W.2d 891, this court held that although a "facial" constitutional challenge was a matter of subject matter jurisdiction and
¶ 47. In addition, Cole argues a hypothetical rather than an application of the facts at hand. Generally, a person cannot challenge the constitutionality of a statute on the grounds that it may be unconstitutional as applied to others. See State v. Thiel, 183 Wis.2d 505, 520, 515 N.W.2d 847 (1994) (citations omitted) (finding an exception to this general rule in the First Amendment context). Cole asserts that the CCW statute renders the right to bear arms useless in the context of transporting a weapon in a vehicle. He argues that, according to Wisconsin precedent, because weapons must be out of reach in the trunk and unloaded, a person is left with no meaningful way to exercise the right to bear arms for self-defense in that context. He asserts that such extensive restrictions act to deny a citizen any way to exercise the right to security and self-defense while riding in an automobile. However, such claims go far beyond the facts of this case. We see no need to examine the assortment of restrictions that may apply to transporting a weapon in a vehicle, because under the facts of this case, the constitutional right to bear arms has clearly not been infringed.
¶ 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
¶ 49. In the case at hand, police seized two loaded weapons from the interior of a vehicle, one inside the glove compartment and the other stashed under the front seat of the vehicle. Both clearly were, by any definition, concealed. In Dundon, 226 Wis. 2d at 662, this court defined "concealed" as "hidden from ordinary observation," and noted that a weapon need not be completely hidden from view to be considered concealed. Whatever the outer reaches of application of the CCW statute might be in light of the new constitutional amendment, this fact scenario does not fall within them. The right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle. The reasons supporting "facial" validity of the statute apply with equal force to the specific facts of this case. Public safety
¶ 50. Because we conclude that the CCW statute is a reasonable exercise of the state's inherent police powers, we find that the CCW statute is not unconstitutional either on its face or as applied to Cole.
By the Court. —The decision of the Milwaukee County Circuit Court is affirmed.
¶ 51. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).
I join Justice Prosser's concurrence except that part of his concurrence in which he states that he "strongly support[s] much of the majority opinion."
¶ 53. Furthermore, I am not persuaded that there is any difference between rational basis test and the majority opinion's "reasonable exercise of police power" test.
¶ 54. For the reasons set forth, I write separately.
¶ 55. N. PATRICK CROOKS, J. (concurring).
While I strongly disagree with the majority's conclusion that Wis. Stat. § 941.23 is constitutional, for the reasons set forth in my dissent in State v. Hamdan,
¶ 56. On May 12, 2000, Cole entered a plea of guilty to charges of carrying a concealed weapon (CCW) in violation of Wis. Stat. § 941.23 and to possession of THC (marijuana) in violation of Wis. Stat. § 961.41(3g)(e). Judge Maxine A. White sentenced Cole to 60 days on the CCW charge and 15 days (concurrent) on the possession charge.
¶ 57. Four and one-half months later, on September 29, 2000, Cole filed a motion to vacate his conviction on the CCW charge. For the first time he raised the issue of the constitutionality of the CCW statute, claiming that his right to bear arms, found in Article I, Section 25 of the Wisconsin Constitution, was violated by that statute.
¶ 58. He was too late! His objection was not made prior to his guilty plea, and therefore was not in any way preserved for subsequent review. Wisconsin law has long been clear that a guilty plea, which is knowingly and voluntarily made, waives all nonjurisdictional defects and defenses, including alleged violations of constitutional rights. See State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986); State v. Minniecheske, 127 Wis.2d 234, 378 N.W.2d 283 (1985); State v. Damaske, 212 Wis.2d 169, 567 N.W.2d 905 (Ct. App. 1997), review denied 212 Wis.2d 689, 569 N.W.2d 590.
¶ 59. Since Cole, by his guilty plea, waived his right to claim that Wis. Stat. § 941.23 (CCW statute) is unconstitutional, his conviction must be affirmed. Because of his waiver, I respectfully concur in the mandate.
This case represents the court's initial effort to interpret Article I, Section 25 of the Wisconsin Constitution. The majority opinion holds that the new provision grants a fundamental, individual right to keep and bear arms. The majority states several times that the right is "fundamental," majority op., ¶¶ 20, 26, 29, and it expresses agreement with the parties "that Article I, Section 25 ... grants an individual, rather than a collective, right." Id., ¶ 29. Although I strongly support much of the majority opinion, I write separately to explain why the amendment deserves a more nuanced interpretation.
¶ 61. Article I, Section 25 originated in the 1995 legislative session. The amendment was one of several reactions to municipal initiatives to ban handguns.
¶ 62. Milwaukee and Kenosha
Stephen Braun, Vote Puts Milwaukee Under the Gun, Cap. Times, Nov. 2, 1994, at 3A.
¶ 63. Both referenda were defeated.
¶ 64. Representative DuWayne Johnsrud announced that he would introduce legislation to preempt municipalities from enacting gun control ordinances that were stricter than state law. Representative Johnsrud stated: "Cities like Madison are creating a patchwork of regulations across the state. ... I want to make sure that individuals have the law-given ability to
¶ 65. In the meantime, Senator David Zien introduced a constitutional amendment to keep and bear arms. 1995 Senate Joint Resolution 7 (introduced February 14, 1995). Senator Zien explained that the measure had been introduced because of "pressure on law-abiding gun-owning citizens" by "anti-gun forces."
¶ 66. On September 1, 1995, Assembly Majority Leader Scott R. Jensen introduced an identical constitutional amendment in the Assembly. 1995 Assembly Joint Resolution 53. More than half of the members of the Assembly co-authored Jensen's amendment, and they were joined by 16 senators. This was the joint resolution that ultimately passed.
¶ 67. The Zien/Jensen constitutional amendment, as originally proposed, read as follows:
1995 Assembly Joint Resolution 53.
¶ 68. Representative Jensen's joint resolution was referred to the Assembly Committee on Elections and Constitutional Law, which conducted a public hearing on it only six days after its introduction.
¶ 69. When the joint resolution came out of the Committee on Elections and Constitutional Law, it was referred to a second committee, the Assembly Committee on Criminal Justice and Corrections.
¶ 70. On March 22, 1996, the Committee on Criminal Justice and Corrections approved a substitute amendment,
¶ 71. This text was approved by the Assembly on March 26, approved by the Senate on May 8, approved by the legislature at its next session, and ultimately ratified by the people of Wisconsin. During the first debate in the Assembly, the amendment was referred to as "the Soglin amendment."
¶ 73. Footnote 10 of the majority opinion quotes from a 1997 Legislative Council Memorandum containing Shaun Haas's explanation of the textual change:
Majority op., ¶ 29 n.10 (quoting Memorandum from Shaun Haas, Senior Staff Attorney, Explanation of 1997 Assembly Joint Resolution 11, Relating to the Right to
¶ 74. Having quoted this Legislative Council analysis, the majority opinion disregards its importance. If the change in constitutional text was intended to permit restriction of the possession and use of firearms by certain individuals—actually, substantial classifications of individuals—the amendment cannot be described as creating a "fundamental" right. Convicted felons are not the only persons restricted or prohibited from possessing or using firearms. See Wis. Stat. §§ 29.304, 941.29, 948.60(2). The same 1995 legislature that gave initial approval to the constitutional amendment also passed legislation prohibiting a person from possessing a firearm if he or she is subject to a domestic abuse, child abuse, or harassment injunction.
¶ 75. In his law review comment on the right to bear arms amendment, Jeffrey Monks recognized and discussed the final change in constitutional text. He wrote:
Jeffrey Monks, Comment, 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, 268. Curiously, the majority opinion does not report this passage. Instead, it quotes later passages that attempt to explain away any significance to the textual change. Majority op., ¶ 29 n.10 (quoting Monks, supra, at 268-69).
¶ 76. In retrospect, there are at least two reasons why the legislature changed the text of the proposed amendment from "Every individual" to "The people."
¶ 77. First, although the legislature wanted to establish a right that would benefit hundreds of thousands of individual gun owners, it wanted to deemphasize the "individual" nature of this right. The original amendment provided that "Every individual, except an individual restricted in accordance with federal law, has the right to keep and bear arms ... but the manner of bearing arms may be regulated...." (Emphasis added.) This draft could have been read to limit the police power to regulate firearms, permitting the legislature to regulate the manner of bearing arms but
¶ 78. Second, the legislature wanted to underscore that the people have a right to reasonably regulated gun ownership that cannot be denied to them en masse by state legislation or local ordinance.
¶ 79. The constitutional right to keep and bear arms in Wisconsin is an important right and a valuable right, and it must be protected. But it is not a fundamental right in the same sense that freedom of speech, freedom of worship, the right to remain silent, and the right to jury trial are fundamental rights. The right is subject to reasonable regulation under the police power. Recognizing the limits to this important right up front will avoid a deluge of frivolous litigation.
¶ 80. I am authorized to state that JUSTICE ANN WALSH BRADLEY joins this concurrence.
Dundon, 226 Wis.2d 654, 672.
In 1969, Wis. Stat. § 941.23 was split into subsections. §§ 1, 2, ch. 272, Laws of 1969. Subsection 1 was substantially the same as what is now the complete statute. In 1977, the legislature amended subsection 1 to change the language from a term of imprisonment to a level of offense, stating that a person going armed with a concealed weapon is "guilty of a Class A misdemeanor." § 37, ch. 173, Laws of 1977. In 1979, the legislature repealed subsection 2 and renumbered Wis. Stat. § 941.23(1) to be simply Wis. Stat. § 941.23, the present statute. See §§ 843g, 843j, ch. 221, Laws of 1979.
Id. Monks provides two additional reasons for this conclusion:
Monks, The End of Gun Control, 2001 Wis. L. Rev. at 268-69.
The Legislative Council Staff also assists the legislature. LCS is a nonpartisan legislative service agency of the state legislature. See Joint Legislative Council, Legislative Council Staff, at http://www.legis.state.wi.us/lc/staff_list.htm (last visited Mar. 9, 2003). LCS is responsible for a variety of research services, including responding to requests for research and information from members of the legislature, legislative staff, other governmental agencies, and other state legislatures. Id.
While the research done by these agencies is not necessarily dispositive in determining legislative intent, their analyses at the time of drafting certainly provides the court with valuable information about the knowledge available to legislators. Further, the legal expertise of these agencies entitles their analysis to some consideration by this court. In this case, for example, both agencies provided extensive research to legislators during the drafting process. They examined the laws of other states and explained the potential effects of particular language. See, e.g., 1995 LCS Memorandum.
All cited newspaper clippings are from the state editions of Milwaukee newspapers on file at the Wisconsin Legislative Reference Bureau, Madison, Wisconsin.