A Wisconsin truck driver, Guy A. Smith, was arrested for carrying a concealed weapon. The handgun was on the floor of his truck. It was visible to an outside camera. Smith made no attempt to hide the firearm when the truck was inspected by a Wisconsin state trooper, who proceeded to arrest him for carrying a concealed firearm, illegally.

While open carry has always been legal in Wisconsin, case law from 2003 determined that carrying a loaded handgun concealed beneath a seat or in a glove compartment makes it a concealed firearm. This in spite of the passage of the strong protection for the right to bear arms in Wisconsin’s constitution.

In 1998, 74 percent of Wisconsin voters affirmed constitutional carry in a state referendum amending the state’s constitution. The amendment, which created Article I, Section 25, is very clear. From Article I Section 25:

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

The composition of the Wisconsin supreme court has been changed since 2003. Left-leaning justices who dominated the court have been voted out. Originalists and textualists have been voted in. A case such as that of Mr. Smith could well have a different outcome.

In a recent case on carry on city buses, the court ruled that local governments may not ban the carry of weapons on public transit. Unfortunately, the defense didn’t bring up the constitutionality of the city regulation itself. As part of the shall issue law passed in Wisconsin in 2011, the legislature changed the law concerning carrying in vehicles.

From jsonline.com:

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

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

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

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

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

At the time of passage, many thought the change applied to open carry. Several changes in the law clarified that open carry is legal, doesn’t constitute “disorderly conduct” and constitutes a protected activity.

It seems sensible that open carry in a vehicle would be protected by law.

Edit: Given the changes in the law and the questions regarding interpretation, Assistant District Attorney Thomas Binger may appeal the Judge’s ruling on the law or on procedure.

If there is no appeal on the substance of the law, I expect a Wisconsin Jury to find Smith to be not guilty. If Smith is found to be guilty, Wisconsin Carry will likely appeal the verdict.

ADA Binger has already publicly declared that he doesn’t read the law the way it was written. He reckons the law would nullify Wisconsin’s concealed carry law, Act 35. The judge corrected Binger, saying it would only nullify the statute in cars.

Wisconsin Carry is funding Mr. Smith’s defense in the case.

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

50 Responses to Wisconsin Vehicle Carry Case: A Chance to Validate Open Carry Constitutionality

    • Bro, I just spent a week in Door County and I’m from Cook County, Illinois. It’s like night and day. I can say, without humor, that being in Wisconsin just MAKES YOU A BETTER PERSON. I have never been in a place where people were more respectful and honest.

  1. Hard core statist pistol packing positivists generally occupy government kourts. I suspect the petitioner will fail. The truth is no defense in the empire of lies. We shall see.

  2. … I expect the jury to find Smith not guilty. Then I expect the Assistant District Attorney … to appeal.

    How in the Hell can the prosecution “appeal” if a jury finds the defendant not guilty? Last time I read the constitution, it said, “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb …” (U.S. Constitution, Amendment 5).

    As I have stated countless time, the Second Amendment is simply the “canary in the coal mine” of rights: governments that are willing to violate the Second Amendment are more than willing to violate the other Amendments — specifically the Fifth Amendment in this particular case.

    • Hey uncommon,

      So I am a defense attorney working in Kenosha County where this is taking place. And I think Dean’s article somewhat misstates where this case is at right now.

      The Court has ordered briefing on the issues raised by defense counsel in this case. If, after briefing, the Court dismisses the charges, then ADA Binger plans on appealing the issue (likely via the Wisconsin Department of Justice/AG’s office)

      If the defense loses the pre-trial issues, Judge Schroeder does not dismiss the case, but then Mr. Smith is found NG at jury trial, the State cannot appeal that verdict.

      However, Judge Schroeder is by far the best judge in Kenosha county for this kind of issue. He is well known for issuing pro-2A decisions and has repeatedly dismissed weapons cases, including violations of CCW laws for carrying knives, and felony charges of possession of an electric weapon on constitutional grounds. Judge Schroeder also issues his decisions based on what he thinks is correct and does not particularly care whether he gets appealed or overturned. So it would absolutely not surprise me to see him dismiss this case pre-trial.

      Kenosha County defense bar has been very proactive in challenging Wisconsin’s confusing and needlessly burdensome weapons laws and I’m glad to see it getting some attention on TTAG!

      Keep fighting the good fight.

      • ^This, from Kenosha Defense^ is exactly what is wrong. It is not the law that is flawed, it is the Lawyers. If the dictionary was used to interpret the Law we’d be OK.

        Kenosha Defense has explained it quite well – it is what judges think and feel instead of what the written Law says that often wins out.

        Furthermore,we’d need a lot fewer laws – in most cases those enumerated in the Constitution would do just fine.

      • The prosecutor could not appeal the guilty verdict, but couldn’t they appeal the judges ruling on the law? Perhaps the appeal would have to happen before a jury trial, but isn’t it possible for prosecutors to appeal if they believe the judge misstated or misinterpreted a statute?

        • If a judge is found by an appellate court to have ruled in error on an interpretation of law during the trial that can be used as a reason for the reversal of a guilty verdict but not the reversal of an acquittal. If a judge rules a law unconstitutional the prosecution can appeal that. It’s possible for the prosecution to appeal the dismissal of charges (FYI Dean that’s not the same thing as a not guilty verdict) by a judge for misinterpretation of the law in rulings on pre-trial motions but the key words there are PRE-trial.

          Dean I understand you claim to be a former LEO. All this is rudimentary constitutional law, criminal procedure, and legal principles any rookie fresh out of the academy should know. I find hard to believe anyone with actual LE training and experience would not know or could forget something so basic and simple.

  3. You say you expect the prosecutor to appeal a not guilty verdict. That’s not possible — prosecutors can’t appeal jury not guilty verdicts, as that would violate double jeopardy.

  4. How can the courts uphold all these stupid “must transport your firearm unloaded in the trunk” laws that clearly violate state and federal constitutional protections to keep and bear arms for defense of self and state?

    I see no qualifiers in the Second Amendment nor state analogs which allow governments to ban loaded handguns or long guns in vehicle passenger compartments … nor do I see any qualifiers that allow states to require any sort of license (as in concealed carry licenses) to bear loaded handguns or long guns in vehicle passenger compartments.

    THIS should be the basis of the defendant’s defense and any appeals.

    • A really clever defense attorney would put a law professor on the stand and ask:

      “Professor, please read out loud for the jury the [Second Amendment analog] of the [your state] Constitution.”

      (Professor reads the right of the people to keep and bear arms.)

      “Professor, please tell the jury what it means to bear arms.”

      (Professor says that it means possessing loaded functional firearms on your person.)

      “Professor, please read out loud for the jury the section of the [your state] Constitution which overrides the [Second Amendment analog] of the [your state] Constitution and allows [your state] to ban bearing arms in the passenger compartment of vehicles.”

      (Professor says that there is no such wording.)

      “The defense rests.”

      • The defense rests and the prosecutor, judge, jury, grand jury, and justice can pack their sh_t and go the F home where they can F off if they do it quietly, never seeking another government job.

        • Wow… is there any room left for others in that cozy little fantasy world you live in? Seems like a nice place to be!

          On second thought, no thanks – I’ll stay here in the real world.

  5. This is almost certainly another instance of “the process is the punishment”. The cop, the DA and the politicians all
    KNOW that no crime was committed. They DO NOT CARE. They have the power to file charges and FORCE the citizen to defend themselves in court at GREAT EXPENSE and effort. Even though the outcome of Not Guilty is a
    virtual certainty they don’t care. The citizen will still have suffered grievous harm from the process….and THAT IS THE GOAL. They seek to make the costs of exercising a right simply too expensive and painful so that people will give up that right rather than risk being targeted for “lawfare” by the system. This happens because of the insanity that is called “qualified immunity” where cops and political office holders can do virtually ANYTHING to ANYONE with ZERO RISK of suffering any personal consequences. As long as this insanity persists these abuses will persist.

    • Let’s see. How did the cops know he had a gun? Oh! They SAW it. What did they do then? Charged him with carrying a CONCEALED weapon? Are they smart enough to remember to breathe, or are they on respirators?

  6. I also hail from Wisconsin and I will follow this closely. Thanks for the news Dean, please keep us updated if possible.

  7. Prosecutors like this are among the strongest reason to pass Constitutional carry everywhere. You can bet this Democrat prosecutor is looking for a political appointment from the next Democrat in the White House. In the mean time, he needs to be unemployed.

    • I’d prefer to bring death penalty charges of treason against politicians and prosecutors who act to undermine the Second Amendment and force them to literally fight for their lives in court. Infringements would end overnight after the first few public executions. Allow Some of the Citizen Militia or some of us 3%ers to do it. I’d happily volunteer.

      • You really need to study up on the definition of “treason” before posting such an embarrassingly ignorant rant.

        • Ted Unlis,

          What else do you call the actions of the police and prosecutors to arrest and try someone for EXERCISING A CONSTITUTIONALLY ENUMERATED RIGHT?

          What else do you call the actions of the police and prosecutors to disarm the populace and make them vulnerable to violent criminals?

          What else do you call the actions of the police and prosecutors to disarm the populace and make them vulnerable to foreign invasion?

          When you look at those three results, it is clearly evident that police and prosecutors (and judges for that matter) who arrest, try, and convict people for keeping and bearing arms have betrayed their country. That is treason.

        • You’re dumb@$$ can call it whatever you’d like but it’s still not treason. Treason as defined by the U.S. Constitution is so short and to the point that you’d think that even the most ignorant and simple minded could comprehend the meaning if they actually ever read it. Here you go, give it a try:

          Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

          ARTICLE III, SECTION 3, CLAUSE 1

        • Mmm-hmmm, and these cops and DAs are doing exactly that. They are giving aid and comfort to the enemy – DEMOCRAT POLITICIANS! Although it’s been many years, I clearly remember that the oath I took required us to defend the United States against ALL enemies, foreign and DOMESTIC!

          Y’know, I began typing that last paragraph mostly tongue-in-cheek… but the more I think about it, the more truth I see in it. Gun grabbers are literally domestic enemies of the Constitution, and hence enemies of the nation. If that’s not treason, perhaps you can explain why?

        • Absolutely unbelievable. Equating the ability to read and comprehend the short and simple legal definition of treason to gun grabbers and Democrats really exemplifies the imbeciles that are for some reason attracted to this site like flies to $#it. Morons like True, un_, & Shall play right into the bogus narratives and propaganda of the anti-gun left that attempts to characterize pro gun advocates as ignorant and stupid. Makes you wonder if True, un_, & Shall are real people who are actually that ignorant and stupid, or are in fact liberal trolls posing as ridiculous caricatures of the most incredibly ignorant and stupid people anti gun liberals imagine supporters of the 2nd amendment to be.

        • I see… well, I suppose civil, rational discourse is simply asking too much. Since your entire argument consists of juvenile name-calling and insults, you obviously HAVE no argument. Hence I see absolutely no reason to continue interacting with such an immature example of the American education system.

          Have a nice day! … and the horse you rode in on. 🙂

      • Ted’s right that the Constitution defines treason in a way so that they can’t be charged with treason.

        Now if treason was defined as betraying the sovereign, then their actions would fit.

    • Prosecutors? Why the flaming hell did a prosecutor ever even hear about this, the COP should be fined, and then fired.

  8. My bet? It’ll get dismissed with prejudice.
    This way the anti-gun DDA can regroup and refile, cause he knows he’s screwed on the “unless it’s a handgun” deal.

  9. After the US Constitution was ratified, states began creating their own constitutions incorporating practically word for word from the US Constitution, including the amendments.

    Our California Constitution is no different. To take it a step further, in my case, The California Constitution requires Members of the Legislature, and all public officers and employees, to take and subscribe a specified oath of office or affirmation. … Existing law, in the case of particular officers, requires the oath, after being administered, to be filed in designated offices.

    OATH OF OFFICE
    I, _________________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter and during such time as I hold the office of
    ______________________________.

    The only way we can take back our rights is by fear. Fear of being prosecuted. Fear of being punished. We need a federal government which will investigate and prosecute states public servants. And if he feds won’t do it, it’s the 1700s all over again.

  10. What about mounting your handgun on the outside of the vehicle, Mad Max-style? Or is that brandishing?

  11. I believe a similar instance of this in AZ occurring is why Constitutional Carry was finally instituted. From what I understand, a cc holder was being held up for a traffic violation of sort, but he had his firearm in the car. When one of the officers saw the firearm in the vehicle with the wife, they cited her for illegally carrying, since she did not have a permit.

    That’s what I was told anyways.

  12. What a convoluted mess of contradictory rules, regulations and laws. All designed to keep the citizen from lawful carry.

  13. The People Have the Right…for security…or any other lawful purpose…

    Doesn’t that pretty much throw out any law that says ‘you can’t have that there or carry it that way’?

    And wouldn’t any honest court have tossed the charge with prejudice at arraignment?

    • Arraignments are not for deciding matters of constitutionality, no matter how obvious it might seem.

      • Hanibal’s right, I meant Preliminary Exam.

        Arraignment is where the defendant is informed of the charges and bail is set.

        If you live where the judges and persecuting attorneys are virtually interchangeable and the charge is obviously bogus, then arraignment is where the bail is set impossibly high, and then the delaying games begin to insure that the defendant serves a longer sentence before being found not guilty at trial than he ever would have served if swiftly convicted.

    • Not really, because the cities (like Kenosha) are still packed with liberals who don’t care what the law says – it’s a GUN! (Oh, the horror!)

      That verbiage from the state constitution, plus this case, are a couple of the reasons why many of us believe that Wisconsin will soon join the ranks of Constitutional Carry states, this year or possibly next.

      With overwhelming majorities in the Senate and Assembly, plus a governor who has already said he will sign a CC bill, it’s probably just a matter of time. (Assuming the RINOs don’t drag things out too long, that is.)

  14. “I expect the jury to find Smith not guilty. Then I expect the Assistant District Attorney Thomas Binger to appeal.”

    You can expect till the cows come home Dean, but you see it’s impossible in Wisconsin or in any of the other 49 states for a prosecutor to appeal a not guiltty jury verdict, can’t happen, won’t happen, never has happened. The U.S. Constitution as well as all State Constitutions prohibit double jeopardy (being tried twice for the same crime).

  15. Even WHEN HR38 is finally passed and National Reciprocity becomes law, you will still be required to follow whichever state’s laws where you are at the moment.
    I live in Kansas and my CCHL is accepted in 39 states plus Illinois sort of honors it. It is as good as a IL FOID for possession, even though I can’t buy ammunition except to shoot on the range where it is sold.
    But when Illinois was forced to pass a gun law by the 7th Circuit, a constitutional law, they did pass a shall issue law for RESIDENTS. They also created what they call a “safe harbor” in your vehicle and on private property.
    A property owner can allow guests to carry concealed on their property. Of course the only friends I have in Illinois is the one place where I feel safe since my friends place is safe as can be .
    But Illinois won’t even allow me to apply for an Illinois CCW since I don’t live in a magical state, despite for the first 1/4 century of my life.
    But once HR 38 becomes law, the states will get together over a few years and the rational states that now honor a Kansas CCHL, 39 states, will force the crime ridden, pro-slavery, [we’re all slaves in their eyes] to adopt policies and freedom.

    • Same way it works right now with LEOSA carry in other states. If I travel to CA, NY, the Peoples Republic of New Jersey or any other anti-gun state I carry either my Kahr CW45 or CM9 to avoid getting jammed up over magazine capacity. All the gun hating liberal states fought tooth and nail against the LEOSA passed back in the Bush admin that allows current or retired LEO’s to carry nationwide. LE agencies in those gun hating states won’t hesitate to arrest someone carrying under LEOSA authority when given the opportunity, even in a best case scenario where criminal charges aren’t filed they’ll likely seize your gun which along with the risk of theft by a airport baggage handler is why I carry one of my Kahr’s instead of my Sig’s. You also have to be aware of all the gun ban zones in cities like NYC that NYPD can use as a reason to arrest someone carrying under LEOSA authority. I personally avoid traveling to those states if at all possible.

  16. Went through this in Missouri about 20 years ago. I the firearm is in “plain view” for search and seizure, it is not concealed. I can provide a cite if you post the request.

    • Doesn’t matter in the slightest, that’s according to Missouri law – not Wisconsin law. (In fact, after 20 years, I’d be willing to bet that Missouri law has changed by now.)

      Prior to the passage of our concealed carry statute in 2011, there existed old case law (State v. Walls) stating that any firearm in a vehicle was considered concealed – even if it was lying on the seat in plain sight. Stupid, but that’s the way it was.

      Since the new laws regarding firearms passed, however, many of us maintain that the old case law was superseded by newer statutes, but this is the first case challenging that old case law. The old status quo has clearly been altered by the recent laws, so this case SHOULD be a slam-dunk, especially from Judge Schroeder.

  17. I’m a trucker. I carry every day, I’m based out of Minnesota, and go to Wisconsin often. I have my MN permit to carry, which enjoys reciprocity with Wisconsin. Truckers do have firearm transport laws. That is covered in the FMCSA, federal motor carrier safety administration. Kind of like the FAA for trucks. The nation wide regulation for carrying in a semi truck is this: https://www.law.cornell.edu/uscode/text/18/926A .

    Note the first line about local law. It basically says that if you follow local law (in this case, he was legally open carrying as Wisconsin allows, then the driver is good to go). If not following local law, refer then to tho federal regulation.

    In my case, I can legally carry because off my permit and reciprocity – open or not. I prefer to conceal because LEOs aren’t always up on their home work in regards to regulations. Or they can startle easily, like in Minneapolis.

  18. …And the P/O’s that conducted the arrest SHOULD Sued and lose their jobs for making a US citizen go through this form of government harassment ! And he SHOULD receive restitution FROM the state and locality from which this occurred….

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