Author: Attorney Marcus Berghahn

Phone: (608) 257-0945

Email: mberghahn@hbslawfirm.com

The state and federal constitutions protect the right of citizens to bear firearms. While Wisconsin law creates a license that authorizes the individual to whom it is issued to carry a handgun concealed on their person, no license is required to possess a firearm. Problems arise when the owner of a gun (who is not a licensed to carry a concealed firearm) transports his firearm in a car and comes into contact with police.

With certain limited exceptions, a person is guilty of carrying a concealed weapon if he or she “goes armed with” a concealed and dangerous weapon. Wis. Stat. § 941.23(1)(ag). A person is guilty of carrying a concealed weapon in an automobile when the weapon is located inside a vehicle and is within the defendant’s reach; the defendant is aware of the presence of the weapon; and the weapon is concealed, or hidden from ordinary view-meaning it is indiscernible from the ordinary observation of a person located outside and within the immediate vicinity of the vehicle.

In State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, the Wisconsin Supreme Court held that only in extraordinary circumstances will an individual carrying a concealed weapon in a vehicle be able to demonstrate that his interest in the state constitutional right to keep and bear arms for security substantially outweighs the state’s interest in prohibiting that individual from carrying a concealed weapon in his motor vehicle. Thus the individual’s right to possess a firearm under the state and federal constitutions is not violated when the State prosecutes an individual for carrying such a firearm when it is concealed in their car.

But another statute, known as the safe transport statute expressly permits the transportation of a firearm in a vehicle, so long as the firearm is either unloaded or is a handgun. Wis. Stat. § 167.31(2)(b)1. This statute provides that “no person may place, possess, or transport a firearm … in or on a vehicle, unless … The firearm is unloaded or is a handgun.”

In State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994), the court recognized (but did not hold) that the transportation of a firearm in a vehicle, in full compliance with the safe transport statute does not constitute going armed with a concealed weapon.

Thus conduct authorized by the safe transport statute—transporting a handgun, for example—appears to be prohibited by the statute banning the carrying of a concealed weapon. This apparent conflict raises a significant question as to whether the carrying a concealed weapon statute actually provides fair notice of its prohibitions to an ordinary person who transports a firearm inside a vehicle.

On March 13, 2017, the Wisconsin Supreme Court, accepted a Petition for Review in State v. Brian Grandberry, 2016AP173-CR, which addresses this issue precisely. In the trial court, Grandberry was charged with carrying a concealed weapon after police stopped the car he was driving and found a loaded pistol in the glove compartment. He argued that the state cannot prove that he was “going armed” with the gun because the safe transport statute permitted him to have a gun in the glove box. The court of appeals disagreed, holding that Grandberry needed a concealed carry permit in order to transport the gun. The case will be scheduled for an oral argument before the Wisconsin Supreme Court and one can expect a decision later this year.