concluding that when there is an application or interpretation of the statute that is constitutional, the statute is not unconstitutional on its face
How later courts described this case
- concluding that when there is an application or interpretation of the statute that is constitutional, the statute is not unconstitutional on its face
- stating that an as-applied constitutional challenge may be waived or forfeited
- presuming that a concealed weapons law implicating the fundamental right to bear arms was constitutional
- ascertaining the constitutionality of statutes presents a question of law
Written by the judges who cited it.
The opinion
SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE
¶ 51. (concurring). I join Justice Prosser's concurrence except that part of his concurrence in which he states that he "strongly support[s] much of the majority opinion." 1 I have reservations about parts of the majority opinion.
*559 ¶ 52. For example, it does not make sense to me that the majority opinion gives a statute that predates a constitutional amendment the presumption of constitutionality under the later-enacted constitutional amendment. 2 The presumption of constitutionality is based on the reasonable belief that a legislature intends to enact laws that are valid under the Constitution at the time they are enacted, not the unreasonable assumption that a legislature can anticipate all future constitutional amendments and draft constitutionally immortal statutes.
¶ 53. Furthermore, I am not persuaded that there is any difference between rational basis test and the majority opinion's "reasonable exercise of police power" test. 3 The exercise of police power must always be reasonable, that is reasonably and rationally related to a legitimate government interest. 4 The concealed weapons statute is constitutional if it represents a reasonable exercise of the State's police power and does not eviscerate the constitutional right to keep and bear arms. 5
¶ 54. For the reasons set forth, I write separately.
See majority op., ¶¶ 12, 17.
See majority op., ¶ 26.
See Noranda Exploration, Inc. v. Ostrom, 113 Wis. 2d 612, 626 , 335 N.W.2d 596 (1983).
See State v. Hamdan, 2003 WI 113, ¶ 115 , 264 Wis. 2d 433 , 665 N.W.2d 785 (Abrahamson, C.J., dissenting), for further explanation of my views about the appropriate test to be applied.