This article is the first in a series that will look into the relationship between our right to keep and bear arms and the legislatures' ability to regulate this right.
What does the Right to Keep and Bear Arms amendment in Wisconsin Constitution serve to accomplish?
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. Art. I, § 25 (enacted 1998)
Some argue that this Amendment protects an absolute, unrestricted God given right to keep (own) and bear (carry) arms (guns). They say that to regulate this right in any manner, would unjustly infringe upon the rights that are being protected by the Constitution. For example, no training should be required; there should be no background checks to screen out the undesirables and absolutely no lists of who is carrying a gun. Why stop there? There should be no government regulation of the rights which are protected by the State and Federal Constitutions at all!
To understand what the legislature can and can not do to regulate this right, it would be useful to look a little closer at the several meanings and uses of the word “right”.
Natural rights versus Legal rights
Certain rights are derived from God or Nature and they are called Natural rights. They are universal rights and do not depend on the laws of a specific society. These rights exist necessarily and can not ever be taken away. Natural rights may also be called moral rights or inalienable rights. Our founding fathers described them as life, liberty and the pursuit of happiness.
Legal rights on the other hand are based on a society's customs, laws or statutes and may be created and therefore regulated, by the legislature. The right to vote is an example of a legal right possessed by citizens. Voting is done on election day,not when ever you are ready to toss out an elected official. Even on election day, you may only vote once and during the times when the polls are open. Voting is a right that is also regulated. Citizenship itself is often considered as the basis for having legal rights, and has been defined as the "right to have rights". Although even this basis for enjoying rights has been extended to aliens and to even illegal aliens and now even to our country's enemy’s. Legal rights are also called civil rights or statutory rights and they are culturally and politically interrelated because legal rights depend on a specific societal context to give them a meaning.
People who may fundamentally agree on our protected right to keep and bear arms, often clash over their “right” to do so or more specifically the governments’ ability to regulate this right, because they mix and match what are really legal rights with natural rights. The legislature may not regulate our natural rights or inalienable rights because they to not originate from the legislature as do our legal rights.
Let me leave you with an excerpt from the Wisconsin Supreme Court in the case of
"Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25. The State must be especially vigilant in circumstances where a person's need to exercise the right is the most pronounced. If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained."
To be continued…