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Craig Mastantuono Nov. 29, 2012

Last month, there was a rally in Waukesha County supporting gun rights in Wisconsin; the Milwaukee Journal Sentinel covered the event in an article here. Many of the article’s comments about the rally related to the problems created by Wisconsin’s uniquely restrictive statewide gun laws. Wisconsin is the only State with a complete ban on carrying a concealed weapon; other states either authorize a permit system to carry concealed, or have enacted carry-concealed statutes that contain explicit exceptions for specific locations or circumstances. This outright ban exists despite the fact that Wisconsin’s State Constitution guarantees citizens the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose.

Mastantuono Law Office has extensive experience representing individuals in criminal cases dealing with gun laws, and with petitions for property return to get our clients’ firearms back from the government. These efforts have led to noteworthy success for our clients. For example, Mastantuono Law Office represented a Milwaukee pizza delivery driver who made national headlines for being the unfortunate victim of several robbery attempts while he was working. After using a firearm to defend himself and ward off his attackers, the Milwaukee District Attorney’s Office charged our client with carrying a concealed weapon (CCW), a criminal misdemeanor offense. The State charged our client despite concluding that he acted in lawful self-defense when he discharged his weapon, instead basing a CCW charge on his decision to carry a weapon just prior to being attacked. That’s right – the State decided that he acted in lawful self-defense while using a firearm to defend himself, but that he shouldn’t have had the firearm with him in the first place. Mastantuono Law Office moved to dismiss the CCW charge, asserting that our client acted within his Wisconsin Constitutional privilege to go armed for the purposes of self-defense and security. Link to Journal Sentinel article here. Milwaukee County Circuit Court Judge Daniel Noonan agreed, throwing out the case. Milwaukee Journal Sentinel article: Driver’s Gun Charge Tossed.

Despite having its case thrown out, the State retained possession of our client’s weapon, forcing a contested motion for property return. Milwaukee County Circuit Court Judge Jeffery Kremers denied our client’s request to have his firearm returned, and even denied his request for a hearing on the matter. Link to Journal Sentinel article here. We appealed. The Wisconsin Court of Appeals overturned Judge Kremers, ordering that a hearing be held on the matter. Upon hearing our claim of Constitutional privilege in defense of the property forfeiture, Milwaukee County Circuit Court Judge Kevin Martens agreed that our client had exercised his Constitutional right to bear a firearm, and ordered his property returned.

Throughout these proceedings, the courts focused only on the issue of whether the CCW law was unconstitutional as applied to our client – and ruled that it was. Unsatisfied with this result, Mastantuono Law Office challenged the constitutionality of the CCW statute on its face as applied to all Wisconsin residents in a Petition for Review to the Wisconsin Supreme Court. We moved to have the CCW statute struck down. A link to our Petition is here. The Wisconsin Supreme Court declined to hear our challenge, leaving in limbo clear guidelines for determining when Wisconsin residents can lawfully assert their Constitutional privilege to lawfully carry a firearm. This leaves the authority to make that determination in the hands of the executive branch of government, as exercised by individual prosecutors. Since prosecutors and local policy can vary from county to county, and even within the same county, Wisconsin residents are left in the dark about whether carrying a firearm is lawful or unlawful, until an individualized, after-the-fact determination. The result is the government having all of the power to make these determinations on a case-by-case basis: a dangerous situation for those asserting their Constitutional right to bear arms.

Since the Supreme Court denied our Petition, gun rights issues in Wisconsin clearly remain in the forefront, as evidenced by the rally in Waukesha County, as well as a recent United States Supreme Court oral argument on the Constitutionality of state and local gun control laws, discussed in an article here.

For those seeking a more detailed legal analysis, a portion of our Supreme Court Petition supporting review follows:


This appeal presents substantial questions regarding the reach and effect of Art. I, § 25 of the Wisconsin Constitution (enacted in 1998), the impact of the “fundamental right” created by that provision on Wis. Stat. § 941.23, and the process established by this Court in Hamdan, by which the trial courts are to determine on a case-by-case basis whether an individual has exercised his or her “fundamental right” or committed a crime. This appeal asks the Court to revisit HamdanCole, and their limited progeny, with the benefit of over five and a half-years of judicial experience in applying the Hamdan framework in individual cases.

The Hamdan decision concludes with the following advice to the legislative branch and the recognition that there would exist “a continuing dilemma until the legislature acts to clarify the law”:

We urge the legislature to thoughtfully examine Wis. Stat. § 941.23 in the wake of the amendment and to consider the possibility of a licensing or permit system for persons who have a good reason to carry a concealed weapon. We happily concede that the legislature is better able than this court to determine public policy on firearms and other weapons.

In the meantime, we must give effect to the constitutional right embodied in Article I, Section 25.

Hamdan at 85, 86. The legislature has yet to address the “dilemma” perceived by the Court.

Petitioner respectfully contends that his case demonstrates that the Hamdan framework has not proven amendable to knowable, consistent, non-arbitrary, and objectively reviewable administration. In making it impossible for one to know whether carrying a concealed firearm for legitimate self-defense and security purposes is the exercise of a fundamental right or a crime until after the conclusion of substantial, typically criminal, litigation, the framework has fallen short of the Court’s goal of giving meaningful effect to Art. I, § 25. It has also compromised basic principles of due process and fair notice. Hamdan does not provide meaningful guidance for the trial courts and bar, leaving them to struggle anew in each case.

Specifically noting that in this very case, different judges came to different conclusions on largely identical sets of facts, Judge Martens expressed the ongoing dilemma facing the bench, the bar, and would-be defendants:

[I] do wonder whether ultimately it’s fair to individuals who have a genuine interest in security to essentially subject them to prosecution and then have a court after the fact be the Monday morning quarterback with the attorney’s help and decide, well, in your case it’s okay but in someone else’s case maybe the cashier next to you, it’s not, so I have real concerns about that.

R.19 (Pet. App. 153-154).

Over five and a half years since Hamdan’s call for legislative action to resolve this “continuing dilemma,” Judge Martens concludes this passage by reiterating that “legislative guidance would be extremely helpful and valuable.” Id.

Petitioner suggests that Hamdan has likely had the unintended consequence of inhibiting needed legislative guidance by diluting both the urgency of the need for such guidance and the legislative branch’s ultimate responsibility for providing it.

This case exemplifies that experience over the intervening years has shown that Hamdan has failed to effectively serve its purpose. It has had unintended consequences, is burdensome to the bench and bar, to defendants, and to those who desire to exercise a fundamental constitutional right without fear and uncertainty.

For these reasons, Petitioner suggests that this case meets the criteria for review and should not be deemed moot.

In addition to work described above, Mastantuono Law Office has handled numerous other cases dealing with the right to bear arms. Our Office currently represents a Minneapolis firefighter who shot and killed a man who broke into our client’s home in rural Burnett County, Wisconsin. Despite our client’s strong claim of self-defense, the State charged him with Second-degree Intentional homicide, alleging that he had a real, but unreasonable belief that he was in grave danger when he fired his gun. All charges were ultimately dismissed after our Office successfully argued that the State violated our client’s Constitutional Due Process rights when it lost key evidence supporting our client’s innocence.