WI District Attorney issues statement of intent relying on broad view of McDonald and 2nd Amendment

Thanks to Instapundit and the Volokh Conspiracy we see this press release (PDF) from the Jackson County, WI District Attorney’s office. This is an interesting development resulting from the recently decided McDonald case. Says DA Gerald R. Fox:

Yesterday, in a resounding victory for all freedom-loving Americans, the United States Supreme Court confirmed that the Second Amendment’s protection of our right to keep and bear arms applies everywhere in America, and serves as a rampart against state infringement of this fundamental individual liberty. In its ruling, the Court declared that the right to keep and bear arms is a fundamental right, and that self-defense is at the core of the freedoms protected by the amendment.

This Supreme Court ruling is binding on all states and local governments, and immediately renders some of Wisconsin’s current laws unconstitutional. Therefore, in keeping with my oath to uphold and defend the Constitution, I hereby declare that this office will no longer accept law enforcement referrals for violations of the following statutes:

Section 167.31, prohibiting uncased or loaded firearms in vehicles;
Section 941.23, prohibiting the carrying of concealed weapons, including firearms;
Section 941.235, prohibiting the possession of firearms in public buildings;
Section 941.237, prohibiting the possession of firearms in establishments where alcohol may be sold or served; and,
Section 941.24, prohibiting the possession of knives that open with a button, or by gravity, or thrust, or movement.

All of these statutes constitute unjustifiable infringements on the fundamental right of every law-abiding American to arm themselves for self-defense and the defense of their loved ones, co-workers, homes and communities. This change also invalidates Jackson County Ordinance Sections 9.01 (firearms in public buildings) and 9.29 (CCW).

Check out the link to the Volokh Conspiracy for the whole memo and for Eugene Volokh’s comments about it. He believes that this stance by DA Fox is an overreading of McDonald and Heller. As much as I am a proponent of advancing the protections of Americans’ 2nd Amendment rights, I must agree. I fully support Fox’s refusal to enforce laws that are, in his professional judgment, unconstitutional. His reference to the statutes prohibiting uncased or loaded firearms in vehicles and in public buildings are precisely the kinds of laws that I consider to be invalidated by McDonald. (It’s the blanket nature of the “public buildings” statute that runs afoul of the 2nd Amendment, in my opinion.) I also think that the one about the knives is just, frankly, dumb and I am glad to see someone applying the McDonald decision to it.

As you know if you’ve read this blog before, we have just concluded our fight in Virginia to lift the prohibition on carrying concealed weapons into establishments that serve alcohol  but it has always been legal to carry them openly. I applaud DA Fox’s stance on the matter of possessing firearms in such places. (He explicitly states later in the release that he will still vigorously prosecute those who go armed while intoxicated, and I also approve of that.)

However, if you read the McDonald decision, you see the Justices explicitly left open the matter of regulating concealed carry. While I personally approve of permitting concealed carry for a variety of reasons, there’s no denying that the 2nd Amendment is silent on the matter. Considering the McDonald and Heller decisions along with that fact, I think the matter of concealed carry is one that is and should be controlled by legislation in the locality concerned – in this case, Wisconsin. In fact, they’ve actually passed concealed carry legislation for a few years, now, but it keeps getting vetoed by the governor. (It was a close thing on the override last year – 1 vote, I heard.) To suggest that his office won’t enforce prohibitions on concealed carry on the strength of the McDonald decision is an overreach by Fox, however well-intentioned I might view it.

Kudos to Mr. Fox for proactively changing his office’s priorities and enforcement stances on the basis of this decision, however. I would love to see this general stance replicated throughout the nation. District Attorneys’ offices nationwide would be better served prosecuting criminals than in pursuing bogus law enforcement actions against citizens doing nothing more than exercising their rights.

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