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.
I previously expressed my hope that many will join us at the Law Alumni Awards ceremony, which will occur this Thursday, April 23, 5:30 p.m., at the Alumni Memorial Union. I write again so that I may add that there will be a unique opportunity, before the reception, for anyone interested to place his or her name on Eckstein Hall. That may seem a little odd, for Eckstein Hall is rising several blocks away from the AMU. But we will have available on April 23 outside the AMU the final steel beam that will be placed in Eckstein Hall some weeks from now—and plenty of permanent markers with which folks can sign it. So, whether you are coming to the awards ceremony or not, feel free this Thursday to write your name into the future of Marquette University Law School. The beam will be available under a tent in Parking Lot A (corner of 16th and Wells) from 11 a.m. to 7 p.m.
