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Carrying firearm not grounds for disorderly conduct
Wisconsin law does not address openly possessing weapon
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Wisconsin citizens are legally allowed to carry firearms openly, Attorney General J.B. Van Hollen said in a memo to the state’s district attorneys Monday.
Currently, Wisconsin and Illinois are the only two states with laws preventing the carrying of concealed weapons. However, according to Van Hollen, there is nothing in state law regarding citizens who openly carry weapons.
“The Department (of Justice) believes that mere open carry of a firearm — absent additional facts and circumstances — should not result in a disorderly conduct charge,” Van Hollen wrote.
The memo came after various state district attorneys requested further information from the attorney general’s office regarding the relationship between the state’s statute allowing the open carry of firearms and the state’s disorderly conduct law.
In the memo, the attorney general cited a West Allis case in February, where a citizen wearing a holstered handgun on his property while doing lawn work was charged with disorderly conduct. According to Van Hollen, the man should not have faced a disorderly conduct charge.
Van Hollen did say, however, that the police may stop and question citizens who openly carry weapons if the officer has “reasonable suspicion based on articulable facts of criminal activity,” based on the individual circumstance.
Officers can also stop citizens even though they may not have any “basis to question the individual,” and can ask questions or verify a citizens’ identification, although the citizen being questioned does not have to answer, Van Hollen added.
“Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality,” Van Hollen wrote.
According to University of Wisconsin political science professor Howard Schweber, the ruling is not common.
“I have to confess that’s an unusual rule. I am not familiar of another example of a state that has adopted a public carry law,” Schweber said.
On a federal level, the Second Amendment of the U.S. Constitution applies only to national laws, Schweber said, adding a recent Supreme Court decision ruled citizens could own a gun in their home, but said nothing about carrying a gun in public.
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Wisconsin does not have a statute that specifically allows open carry. Open carry is allowed by default. The Wisconsin Supreme Court ruled in a 2003 case that there are two manners of firearm carry, visible and hidden, and that Article I section 25 of the Wisconsin constitution “The people have the right to keep and bear arms for securiy, defense, hunting, recreation or any other lawful purpose”. demands that the State must allow a manner of carry. State statute 941.23 strickly prohibits the carry of concealed weapons by all but the police therefore because of Article I section 25 open carry becomes constitutional by default.
My name is John Pierce and I am the Co-Founder of OpenCarry.org which is an online social networking hub and legal resource for open carry information across the United States.
I am amazed at how uninformed and simply incorrect the comments are from Professor Schweber.
First, the memorandum from AG Van Hollen simply clarifies the legal and constitution environment currently in place in Wisconsin, it does NOT “adopt a public carry law”. An attorney general’s opinion cannot create law and a political science professor should know that!
Second, it is amazing that Professor Schweber is unaware of any state where open carry is legal since in 29 of the 50 states, citizens who may legally possess firearms may carry them openly without government permission or sanction and it is very common. See the maps at www.opencarry.org for more information.
Thank you.
John Pierce www.opencarry.org
I also take issue with Proffesor Schweber’s ingnorance on the matter. Many of the problems facing rights advocates (not only 2nd amendment) are caused by such ignorance along with disinformation.
To the author of this article: Here is a link to the University of Wisconsin LAW school faculty directory. http://www.law.wisc.edu/faculty/directory.php?iListing=Faculty&iType=group Maybe you could ask one of them instead of a political science professor?
The following statement is not correct: “Officers can also stop citizens even though they may not have any “basis to question the individual,” and can ask questions or verify a citizens’ identification, although the citizen being questioned does not have to answer, Van Hollen added.”
The AG did not say this at all - police cannot “stop” citizens absent at least reasonable suspicion of crime - this newspaper item needs better editing.
The police can do whatever they want - they can shoot you down like a dog and lie about the reason later.
They can charge you with disorderly conduct if you look at them cross-eyed and make up some story to justify it.
Face it - we are just subjects, slaves of the state, no longer free citizens.
“On a federal level, the Second Amendment of the U.S. Constitution applies only to national laws” … I guess this “University of Wisconsin political science professor” hasn’t heard that the 9th Circuit Court of Appeals “incorporated” the Heller decision late last week. The 10 western states under the ninth’s jurisdiction now enjoy the restoration of their second amendment rights that have been incorporated under the 14th amendment by the ninth. The rest of the appelate districts will soon follow … Surprising that a “political science professor” wouldn’t be aware of the latest federal court happenings … go figure …
Two points:
The gist of all this is that open carry, per se, cannot be disorderly conduct nor provide reasonable, articulatable suspicion of a crime.
A law enforcement officer may approach anyone, for any reason or none. However absent a reasonable, articulatable suspicion of criminal activity, he may not detain you (in other words, you are free to walk away).
who said wisconsin was a free state,maybe to people like gov.doyle and the people who are his lackies and lapdogs.but not to people who think for themselves.