Court misconstrues right to bear arms
By RICK ESENBERG

Posted: May 24, 2006
Iam not what is called, in the thoughtful and civilized circles of the liberal salon, a "gun nut." I don't own one, and I last fired one almost 40 years ago. My recollection is that I aimed at a bottle sitting at the bottom of a quarry and skimmed the quarry's ledge, missing the target by what my 10-year-old reckoning figured to be a quarter-mile or so. I concluded that, while guns may not kill people, my poor aim might be lethal.

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So I have little personal stake in the battle over the right to bear arms. I'm happy to have that right but exercise it about as frequently as I exercise my right to have liver for dinner.

However, I do have an interest in the manner in which courts interpret our laws. Call it an occupational hazard. While guns may not be important to me, they are of somewhat greater interest to my fellow citizens.

Several years ago, the voters of our state amended the Wisconsin Constitution to state that the "people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

To the unsophisticated, that might seem pretty broad and fairly absolute. You might think that this language, which is now the supreme law of our state and trumps any statute that the Legislature might pass, pretty much means that you get to have a gun as long as you are using it for the specified reasons or any other lawful purpose.

You might think that - unless your taste for a straightforward and plain reading of the English language has been ruined by an expensive legal education. As our state Supreme Court has made clear, that's not what it means at all.

Last week, the court held that a tavern owner can be prosecuted for carrying a firearm in his vehicle, notwithstanding his claim that he did so for security because he regularly transported large quantities of cash generated by his business.

While the court has said that a store owner in a very dangerous area who had been the victim of crime in the past can keep a weapon in his store, the court also has ruled that an individual could be prosecuted for carrying a gun on his person, notwithstanding his uncontradicted statement that he did so to protect himself from violent crime.

Given our constitution's guarantee of the right to keep and bear arms, you might ask, how can this be?

The answer lies in the creativity of clever lawyers, with which our judiciary is well populated. Rather than give full force and effect to the constitution's recognition of a right to bear arms for "any other lawful purpose," a majority of the justices have read the litany of specific reasons for the right to bear arms (i.e., for "security, defense," etc.) as restrictions on the right.

In other words, you have the right to bear arms (or, more specifically, to carry a concealed weapon) but only if you actually do need it for security. More significantly, the court has announced that it will be the judge of your security. Not only must you need your gun to protect yourself, you must really need it. Badly.

The threshold for the reasonable need of a concealed weapon for security purposes seems very high. The court hasn't said that you basically have to be a store owner in Little Beirut with the convocation of street gangs from the 1979 street noir classic "The Warriors" being re-enacted outside your window, but one does get the sense that unless you've recently had a drive-by, you are not yet in enough danger.

The point here is not whether allowing people to own and carry guns is a good idea. In amending the state's constitution, the people of this state have already decided that it is. Nor do I mean to suggest that there can be no restrictions on gun ownership consistent with this right to bear arms.

What I am suggesting is that the state Supreme Court has taken what is specified in our constitution as a right and turned it into a privilege. It has not done so by a technical application of lawyerly skills that only trained professionals could understand (and of which, therefore, can be the only critics) but by a cramped and less than obvious reading of a fairly simple English sentence.

You can understand that.

Rick Esenberg of Mequon is an attorney and adjunct professor at Marquette University Law School. His e-mail address is resenberg@wi.rr.com