I have not yet had a chance to blog on Judge Sarah Evans Barker’s intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not “make sense” or is “unworkable.” I don’t say that it can never be done (as Justice Scalia has said, “I, too, am a sinner”), but it is a principle with no readily defined stopping point.

So what, you may ask, does this have to do with Attorney General Van Hollen’s Advisory Memorandum stating that there is a constitutional right to openly carry firearms?  Well, there is a history.  In 1998, the voters amended the Wisconsin Constitution to create an very broad right to “keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”  This is, to put it mildly, in tension with Wisconsin’s extraordinarily broad prohibition of concealed carry.  There are virtually no exceptions, and there is no provision for the issuance of permits.

When first faced with this conflict, the Wisconsin Supreme Court observed that it was “anomalous.” One might have expected that the anomaly would have been eliminated by declaring the statute to be unconstitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.

Rather, it decided to proceed on a case-by-case basis, deciding when the need for security was compelling enough to result in constitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high-crime area, but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.

In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.