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Rights versus regulation - part one

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.

So in Wisconsin citizens have the legal authority created by the legislature to go openly armed (Wis. Stat.941.23) which is protected as a right by the state constitution (Art. I, Sec 25). This authority and legal right was created by and will continue to be regulated by the legislature. There are limits however and the State may not regulate this right in a manner that creates the destruction of a person’s ability to exercise their right (State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986). Put another way, restricting the possession or manner of carrying personal weapons are valid "if the aim of public safety does not frustrate the guarantees of the state constitution" (State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983).  

 Let me leave you with an excerpt from the Wisconsin Supreme Court in the case of State of Wisconsin v. Hamden:

 

"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…

Comments

  • Sean C. Young 4 years ago

    Gene - Wisconsin Gun Privilege Examiner

    Are you saying that the right to keep bear arms is given to citizens by the government? Wouldn't that make the "right" a privilege? All the government would have to do is change its mind.

    I would think that you could find a better way to justify your required training stance.

    I tend to think that "shall not be infringed" means exactly what it says.

  • Tom Bosworth 4 years ago

    >>I tend to think that "shall not be infringed" means exactly what it says.<<

    I agree. While I am strongly in favor of getting training, lack of training does not deprive a person of their natural right to self defense. Therefor I oppose mandatory training. It works in Vermont.

    Concealed carry: There is no reasonable way to carry openly in Wisconsin in the winter: Are we supposed to wear a pistol on a lanyard slung around our neck, over our parka? Banning concealed carry is unreasonable.

    Banning loaded guns in cars says we give up our right to self defense whenever we are driving or riding in a car, and forces us to unholster publicly whenever we enter a car and reload/reholster when exiting.

    I voted for that state constitutional amendment, and I think mandatory training, prohiition of concealed carry, and of loaded guns in cars are blatantly unconstitutional.

  • CIDGofOne 4 years ago

    “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)

    Those who would argue the provision as citied protects anything would unarguably be in error.
    In essence and at best--it’s no more than a casually-noted observation by whomever made it, transposed into the form of printed words.

  • d.w.hudson 4 years ago

    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)

    except, of course, when the legislature, some cop, judge, appointed schmuck or bureaucrat says you have no right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. So go forth, free sovereign American citizen, and exercise your "right". "Your" government dares you.

  • leemcgee 4 years ago

    Wisconsin's statists are not the first to attempt to rein-in liberty. Such word-parsing nonsense has been attempted since very early in our nation's history. A major problem for liberty is there are more "word-parsing parasites" (i.e. lawyers) living in the U.S. today, than the total number of lawyers which have existed throughout all of history.
    "The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle, A view of the Constitution, 125-6 (2nd. ed 1829)

  • Walter Lee 4 years ago

    You miss the point of Constitutional governance. THe question is where does legitimate authority come from. The "old world" said if was from the king. Our constitutional system said it was from the people. Constitutions are the means by which governments (executive, legislative, judicial) receive their legitimacy to do what they do. The legislature has zero (legitimate) authority to regulate, give, limit, do anything at all that does not come to the people through the constitution. To look at it some other way is to say that the government is "the king" and can do anything it wishes. Where does this power of the legislature, of which you speak, derive? Only from the people! And legititmately, that comes through the constitution

  • Straight Shooter 4 years ago

    Absolute, unadulterated, monderist, non-historically correct . . . crap!

    One could only hope that the state of Wisconsin's gun owners could find a much more Constitutionally informed "gun rights examiner" than German; someone who will actually stand up for our rights instead of helping the statists tear them down.

    SS

  • Virtue 4 years ago

    If you have to get permission its not a right.

    If you have to do X its not a right.

    Freedom of speech....absolute right .....you require no permission to speak your mind.

    Carry a gun?

    Do you need permission? Yes....Then its not a right....or the right has been infringed upon.

  • kldimond 4 years ago

    Gene, looks like you have some resistance here. I agree with them. "...shall not be infringed" is mighty strong language, all-inclusive (clearly applies against the states, for people who believe the words and recognize that the Constitution, including the Bill of Rights, was written by some of the most articulate of all Americans ever), and doesn't leave much wiggle room for those who want to limit any aspect of arms: whether it be guns, knives, clubs, whatever. Only the misuse can legally (constitutionally) be forbidden, and misuse can only be defined by the legitimate rights of others.

  • rk 4 years ago

    You make a distinction between "natural" rights and "legal" or "civil" rights, one subject to some degree of regulation, the other not. Fair enough.

    "So in Wisconsin citizens have the legal authority created by the legislature to go openly armed (Wis. Stat.941.23) which is protected as a right by the state constitution (Art. I, Sec 25). This authority and legal right was created by and will continue to be regulated by the legislature."

    Your argument seems to be "If a legislature adopts language recognizing or creating a right, then it's a legal and not a natural right".

    That might be true in many cases but there's actually nothing stopping a legislature from passing a law about a right that is already a natural right. If the existence of legislation were adequate to prove a natural right didn't exist, they would thus have downgraded the status of the right.

    To prove that a given right is only a "legal" right, you must first show why it isn't a natural right.

  • LouisCipher777 4 years ago

    @gene

    where do you get the audacity to write an article about natural rights vs granted privileges when you obviously don't know the difference?

    I have the right at all times to defend myself to the best of my ability, which includes the ability to use personal arms, in any and all situations.

  • LouisCipher777 4 years ago

    regardless of whether or not the State has made a law against it.

    THAT is a natural law.

  • LouisCipher777 4 years ago

    All in All, Gene, I don't think this is the right job for you. You obviously don't understand the concept of the job of "Gun Rights Examiner".

    Your idea that if the State makes a law about it it stops being a natural right is way off base, and really shows that you are nothing more than one of the statists. I don't know about you (oh wait, yes I do, you just wrote a whole article about it), but my true rights do not change just because some government decides to change them.

  • GregB 4 years ago

    The words 'reasonable regulations' seem to be the subject of wide meaning depending on agenda of the legislator.
    Keep up the good work of keeping us informed and ignor the negative comments as they do not contribute to good discussion of how we attempt to get our rights back without getting arrested.

  • rk 4 years ago

    "Keep up the good work of keeping us informed and ignor the negative comments as they do not contribute to good discussion of how we attempt to get our rights back without getting arrested."

    Without some degree of disagreement, it's not a discussion. It's a bunch of guys standing around patting one another on the back. Besides, did you even READ the "negative comments"?

  • Rukiddingme 3 years ago

    We don't need no stinkin' permission to exercise our rights. We need to exercise our rights whether the government wants us to or not. Contrary to gun control supporters, the Second Amendment is meant to empower individuals to protect themselves from anyone who would unlawfully infringe upon their life, liberty or property. And that includes an overreaching or tyrannical government. Just like the one that we now have !!

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