# State v. Cole > Wisconsin Supreme Court · July 15, 2003 · 264 Wis. 2d 520 URL: https://www.frixlaw.com/law-library/cases/9703629 ## Case - **Full name:** State of Wisconsin, Plaintiff-Respondent, v. Phillip Cole, Defendant-Appellant - **Court:** Wisconsin Supreme Court - **Decided:** July 15, 2003 - **Citations:** 264 Wis. 2d 520; 665 N.W.2d 328; 2003 WI 112; 2003 Wisc. LEXIS 613 - **Precedential status:** Published - **Opinion:** Concurrence by Prosser - **Judges:** Wilcox, Abrahamson, Crooks, Prosser, Bradley - **Cited by:** 100 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703629 ## How later opinions describe it (automated extraction) - 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 ## Opinion text *561 DAVID T. PROSSER, J. ¶ 60. (concurring). This case represents the court's initial effort to interpret Article I, Section 25 of the Wisconsin Constitution. The majority opinion holds that the new provision grants a fundamental, individual right to keep and bear’arms. The majority states several times that the right is "fundamental," majority op., ¶¶ 20, 26, 29, and it expresses agreement with the parties "that Article I, Section 25 . . . grants an individual, rather than a collective, right." Id., ¶ 29. Although I strongly support much of the majority opinion, I write separately to explain why the amendment deserves a more nuanced interpretation. ¶ 61. Article I, Section 25 originated in the 1995 legislative session. The amendment was one of several reactions to municipal initiatives to ban handguns. 1 For instance, in April 1993 voters in Madison narrowly defeated an advisory referendum to ban handguns 2 championed by Madison Mayor Paul Soglin. 3 When the referendum failed, the Madison City Council began work on several ordinances that were more restrictive *562 on firearms than state law. 4 These ordinances were adopted by the Council on December 7, 1994. 5 Mayor Soglin cast the tie-breaking vote on two of the four ordinances. 6 ¶ 62. Milwaukee and Kenosha 7 placed gun control referenda on the November 1994 election ballot. 8 These referenda were not advisory; they were mandatory. 9 The Milwaukee referendum asked voters whether all handguns with barrels less than 10 inches should be banned in Milwaukee. 10 Commenting on the Milwaukee referendum, the Los Angeles Times reported that "no U.S. city has ever adopted such a strict gun-control measure. Chicago and Washington, D.C., outlaw the sale of handguns, but neither has tried to eliminate the hundreds of thousands of pistols residents already own." 11 The article went on: *563 Under the handgun ban proposal, nearly 300 federally licensed gun dealers (there are no gun shops in Milwaukee — most dealers sell out of their homes) would be restricted to selling only shotguns, rifles and the few pistols that have barrels longer than 10 inches. Residents who own handguns would be urged to turn them over to city police, who would catalog and then destroy the weapons. When handguns turn up during arrests, traffic stops and other police contacts, residents could face misdemeanor convictions punishable by $100 fines and $200 for repeated convictions. All firearms would be confiscated. Stephen Braun, Vote Puts Milwaukee Under the Gun, Cap. Times, Nov. 2, 1994, at 3A. ¶ 63. Both referenda were defeated. 12 However, the effect of the initiatives in Madison, Milwaukee, and Kenosha was to spur the newly elected legislature to consider legislation preempting local firearms ordinances that went beyond state law. 13 ¶ 64. Representative DuWayne Johnsrud announced that he would introduce legislation to preempt municipalities from enacting gun control ordinances that were stricter than state law. Representative Johnsrud stated: "Cities like Madison are creating á patchwork of regulations across the state. ... I want to make sure that individuals have the law-given ability to *564 own a firearm if they feel it is necessary." 14 Johnsrud introduced 1995 Assembly Bill 69 on January 30, 1995. After intense controversy and debate, it became 1995 Wis. Act. 72 in November 1995. Cf. Wis. Stat. § 66.0409 (2001-02). ¶ 65. In the meantime, Senator David Zien introduced a constitutional amendment to keep and bear arms. 1995 Senate Joint Resolution 7 (introduced February 14, 1995). Senator Zien explained that the measure had been introduced because of "pressure on law-abiding gun-owning citizens" by "anti-gun forces." 15 "People from all over the state have come to me, concerned about attempts to limit their right to own a gun," Zien said in a statement. 16 He added that "law-abiding citizens" should not be forced to give up their "ability to defend" themselves, their families, and their property. 17 ¶ 66. On September 1, 1995, Assembly Majority Leader Scott R. Jensen introduced an identical constitutional amendment in the Assembly. 1995 Assembly Joint Resolution 53. More than half of the members of the Assembly co-authored Jensen's amendment, and they were joined by 16 senators. This was the joint resolution that ultimately passed. ¶ 67. The Zien/Jensen constitutional amendment, as originally proposed, read as follows: Every individual, except an individual restricted in accordance with federal law, has the right to keep and bear arms for any lawful purpose including for security *565 or defense, for hunting and for recreational use, but the manner of bearing arms may be regulated as authorized by the legislature by law. 1995 Assembly Joint Resolution 53. ¶ 68. Representative Jensen's joint resolution was referred to the Assembly Committee on Elections and Constitutional Law, which conducted a public hearing on it only six days after its introduction. 18 On October 19, 1995, the Committee introduced two amendments to the resolution. 19 On November 29 the Committee adopted the two amendments and recommended the joint resolution for passage. 20 Incorporating the two amendments into the text, the proposed constitutional amendment at this point read: "Every individual has the right to keep and bear arms for any lawful purpose, including for security or defense, for hunting and recreational use." 21 ¶ 69. When the joint resolution came out of the Committee on Elections and Constitutional Law, it was referred to a second committee, the Assembly Committee on Criminal Justice and Corrections. 22 This was unusual. Normally a legislative proposal that has been recommended for passage and does not involve the expenditure of money is put on a calendar for debate. In this case, the Committee on Criminal Justice and Corrections received the resolution and held it until *566 February 15, 1996, when it was given a public hearing. 23 At this hearing, a representative of the Department of Justice, Andrew Cohn, testified against the amendment. 24 Cohn echoed the views of Attorney General James Doyle who had previously called the amendment "an extremely radical proposal." 25 Doyle alleged that the amendment as worded could nullify laws prohibiting concealed weapons and possession of machine guns and sawed-off shotguns. 26 ¶ 70. On March 22, 1996, the Committee on Criminal Justice and Corrections approved a substitute amendment, 27 which revised the proposed text of the constitutional amendment to read as follows: "The people have the right to keep and bear arms for security, defense, hunting, recreation and any other lawful purpose." ¶ 71. This text was approved by the Assembly on March 26, approved by the Senate on May 8, approved by the legislature at its next session, and ultimately ratified by the people of Wisconsin. During the first debate in the Assembly, the amendment was referred to as "the Soglin amendment." 28 *567 ¶ 72. The majority opinion overlooks most of the historical background as well as the legislative dynamics in the amendment's approval. It confines discussion of the critical change in text to a footnote. Majority op., ¶ 29 n.10. In fact, for the proposition that the amendment "was intended to grant a 'fundamental individual' right," the majority opinion relies on a 1995 memorandum issued by the Legislative Council before any amendments to the Assembly Joint Resolution were introduced. Majority op., ¶ 20 (citing Shaun Haas, Senior Staff Attorney, Wis. Legislative Council, Analysis of 1995 Assembly Joint Resolution 53 and 1995 Senate Joint Resolution 7, Relating to the right to Keep and Bear Arms (First Consideration) to Wisconsin State Representative David Travis and Interested Legislators, at 6 (Oct. 11,1995)). In reality, the various amendments altering 1995 Assembly Joint Resolution 53 appear to be a direct response to concerns raised in the Shaun Haas Legislative Council memorandum. ¶ 73. Footnote 10 of the majority opinion quotes from a 1997 Legislative Council Memorandum containing Shaun Haas's explanation of the textual change: Assembly Substitute Amendment 1 substituted the phrase "The people" for the phrase "Every individual" in order to avoid a possible construction of the constitutional amendment that would preclude the Legislature, in the exercise of its inherent police power to enact laws that limit or infringe upon the right to keep and bear arms, from restricting the possession and use of arms by certain individuals (e.g., convicted felons) in the interest of protecting the health, safety or welfare of the public. Majority op., ¶ 29 n.10 (quoting Memorandum from Shaun Haas, Senior Staff Attorney, Explanation of 1997 Assembly Joint Resolution 11, Relating to the Right to *568 Keep and Bear Arms (Second Consideration) to Interested Legislators, at 2 (January 22, 1997)). 29 ¶ 74. Having quoted this Legislative Council analysis, the majority opinion disregards its importance. If the change in constitutional text was intended to permit restriction of the possession and use of firearms by certain individuals — actually, substantial classifications of individuals — the amendment cannot be described as creating a "fundamental" right. Convicted felons are not the only persons restricted or prohibited from possessing or using firearms. See Wis. Stat. §§ 29.304 , 941.29, 948.60(2). The same 1995 legislature that gave initial approval to the constitutional amendment also passed legislation prohibiting a person from possessing a firearm if he or she is subject to a domestic abuse, child abuse, or harassment injunction. 30 ¶ 75. In his law review comment on the right to bear arms amendment, Jeffrey Monks recognized and discussed the final change in constitutional text. He wrote: In right to bear arms amendments, the use of the phrase "the people" to describe those to whom the right has been conferred has sometimes been interpreted as indicating a collective rather than an individual right because "people" refers to an aggregate of citizens. Particularly because the Second Amendment, which is generally interpreted as granting a collective right, also uses the phrase "the people" in its language, one could *569 argue this choice of language implies a similar interpretation for the Wisconsin amendment. Furthermore, the language of the proposed amendment originally included "every individual" and was changed to "the people" later. In a memorandum commenting on the amendment's original language, the [Legislative Council Staff] concluded that the purpose of the amendment was to create an individual right based partially on the fact that the term "individual" had been chosen. The fact that "individual" is no longer used undercuts this conclusion. If interpreted as a collective right, the amendment's effect as a limit on gun control legislation would be severely curtailed, as gun control laws are generally directed at individuals. Jeffrey Monks, Comment, The End of Gun Control or Protection Against Tyranny ?: The Impact of the New Wisconsin Constitutional Right to Bear Arms on State Gun Control Laws, 2001 Wis. L. Rev. 249 , 268. Curiously, the majority opinion does not report this passage. Instead, it quotes later passages that attempt to explain away any significance to the textual change. Majority op., ¶ 29 n.10 (quoting Monks, supra, at 268-69). ¶ 76. In retrospect, there are at least two reasons why the legislature changed the text of the proposed amendment from "Every individual" to "The people." ¶ 77. First, although the legislature wanted to establish a right that would benefit hundreds of thousands of individual gun owners, it wanted to deempha-size the "individual" nature of this right. The original amendment provided that "Every individual, except an individual restricted in accordance with federal law, has the right to keep and bear arms . . . but the manner of bearing arms may be regulated...." (Emphasis added.) This draft could have been read to limit the police power to regulate firearms, permitting the legislature to regulate the manner of bearing arms but *570 denying it authority to restrict firearms ownership or possession, except "in accordance with federal law." By removing this limiting clutter from the draft, the legislature removed any impediment to a reasonable exercise of the police power. By shifting the right from "Every individual" to "The people," the amendment underlined the fact that the police power in Wisconsin may reasonably restrict specific individuals and classifications of people (e.g., domestic abusers, minors) in ways that it may not restrict the people as a whole. 31 ¶ 78. Second, the legislature wanted to underscore that the people have a right to reasonably regulated gun ownership that cannot be denied to them en masse by state legislation or local ordinance. ¶ 79. The constitutional right to keep and bear arms in Wisconsin is an important right and a valuable right, and it must be protected. But it is not a fundamental right in the same sense that freedom of speech, freedom of worship, the right to remain silent, and the right to jury trial are fundamental rights. The right is subject to reasonable regulation under the police power. Recognizing the limits to this important right up front will avoid a deluge of frivolous litigation. ¶ 80. I am authorized to state that JUSTICE ANN WALSH BRADLEY joins this concurrence. Christopher R. McFadden, The Wisconsin Bear Arms Amendment and the Case Against an Absolute Prohibition on Carrying Concealed Weapons, 19 N. Ill. U. L. Rev. 709 , 713-16 (1999). James Rowen, Madison Victory at Polls Bolsters Gun Supporters, Mil. J., Apr. 8, 1993, at B5. All cited newspaper clippings are from the state editions of Milwaukee newspapers on file at the Wisconsin Legislative Reference Bureau, Madison, Wisconsin. Id.; Daniel Bice, Fendry Vows War on Gun Ordinances, Mil. Sentinel, Dec. 8, 1994, at 6B. Joel Broadway, City Officials Propose Ban on Assault Weapons, Wis. State J., Apr. 19,1994, at 1A; Joel Broadway, City Council to Vote Tonight on Gun Control Proposals, Wis. State J., Dec. 6, 1994, at 1A. Joel Broadway, Gun Ban, Wis. State J., Dec. 7,1994, at 1A; Bice, Fendry Vows War on Gun Ordinances, Mil. Sentinel, Dec. 8, 1994, at 6B. Id. The Kenosha referendum question read: "Shall the possession of handguns be banned in the city subject to certain enumerated exceptions?" Tom Held, Handgun Ban Shot Down, Mil. Sentinel, Nov. 9, 1994, at 1A. Tom Held, NRA Contributed $133,449 to Fight City Handgun Ban, Mil. Sentinel, Nov. 1, 1994, at 1A. Id. Id. Stephen Braun, Vote Puts Milwaukee Under the Gun, Cap. Times, Nov. 2, 1994, at 3A. [reprinted from Los Angeles Times article]. Tom Held, Handgun Ban Shot Down, Mil. Sentinel, Nov. 9, 1994, at 1A. Jack Norman, Pro-gun Forces Mm for State Ban on Bans, Mil. J., Nov. 10, 1994, at Bl; Daniel Bice, Fendry Vows War on Gun Ordinances, Mil. Sentinel, Dec. 8, 1994, at 6B; David Callender, City's Gun Laws May Fall, Cap. Times, Dec. 9. 1994, at 1A. Gun Rule Shootout, Cap. Times, Dec. 16, 1994, at 10A. Steve Walters, Zien Seeks Guarantees on Ownership of Guns, Mil. Sentinel, Jan. 20, 1995, at 4A. Id. Id Assembly Bulletin of the Proceedings of the Wisconsin Legislature, 1995 A.J.R. 53, 1995-96 Sess., 394. Id. Id. Id.; Sharon Thelmer, Gun Legislation Considered, Wis. State J., Jan. 22, 1996, at 1A. Assembly Bulletin of the Proceedings of the Wisconsin Legislature, 1995 A.J.R. 53, 1995-96 Sess., 394. Id. Record of Committee Proceedings: Public Hearing on A.J.R. 53 Before the Committee on Criminal Justice and Corrections, 1995-96 Leg. Sess. (Wis., Feb. 15, 1996) 1. Sharon Thelmer, Gun Legislation Considered, Wis. State J., Jan. 22, 1996, at 1A. Id. Assembly Bulletin of the Proceedings of the Wisconsin Legislature, 1995 A.J.R. 53, 1995-96 Sess., 394. Daniel Bice, Assembly Backs Amendment Affirming Right to Own Guns, Mil. J. Sentinel, Mar. 27, 1996, at 7B; Daniel Bice, Assembly Supports Right to Bear Arms, Wis. State J., Mar. 27, 1996, at 3B. Shaun Haas wrote the exact same words in a March 25, 1996, memorandum to Representative Robert G. Goetsch and other interested legislators, explaining Assembly Substitute Amendment 1. See 1995 Wis. Act 71; Wis. Stat. §§813.12 , 813.122, 813.125. Christopher McFadden correctly concluded that the amendment "evinces a hostility to inflexible, blanket gun control laws. While citizens may have agreed that less restrictive limitations on bearing arms were necessary and perhaps even desirable, they adamantly opposed total prohibitions." McFadden, supra, at 716. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703629. Public record. Not legal advice.