Wisconsin Constitution Gun Rights

Wisconsin Article 1 Sec 25 Wisconsin Constitution 

Right to keep and bear arms. Section 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote Nov. 1998]

The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350.

The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the 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. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state's interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

Under both Hamdan and Cole there are 2 places in which a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen's home or in his or her privately-owned business. It logically and necessarily follows that the individual's interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations. An individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04-2989.

The ban on felons possessing firearms is constitutional and that ban extends to all felons, including nonviolent ones. The governmental objective of public safety is an important one, and the legislature's decision to deprive a nonviolent felon, such as the plaintiff, of the right to possess a firearm is substantially related to this goal. State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894, 11-1035.

Silencers are not “arms” for the purposes of the 2nd amendment. The prohibition on possession of a silencer under s. 941.298 does not impose a burden on conduct falling within the scope of the 2nd amendment's guarantee and therefore is not unconstitutional. State v. Barrett, 2020 WI App 13, 391 Wis. 2d 283, 941 N.W.2d 866, 18-2324.

The most natural reading of “keep arms" in the 2nd amendment is to have weapons. The natural meaning of “bear arms" is to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Putting all textual elements together, the 2nd amendment guarantees the individual right to possess and carry weapons in case of confrontation. However, like most rights, the right secured by the 2nd amendment is not unlimited. District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008).

The 2nd amendment right to bear arms, is fully applicable to the states. The due process clause of the 14th amendment incorporates the 2nd amendment right recognized in Heller. However, incorporation does not imperil every law regulating firearms. McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).

The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court. Ciocchetti. 102 MLR 309 (2018).

Out of the Home and in Plain Sight: Our Evolving Second Amendment and Open Carry in Wisconsin. Duroni. 102 MLR 1305 (2019).

Right to fish, hunt, trap, and take game. Section 26. [As created April 2003] The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003]