State Right to Bear Arms in Wisconsin

Posted on Tuesday, July 7th, 2015

Last Updated July 7, 2015

Article I, § 25 of the Wisconsin Constitution, adopted in 1998, states: “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”1

Although the Supreme Court of Wisconsin has found that the state right to bear arms is a fundamental right, it has also held that the right is subject to reasonable regulation. In State v. Cole, the court upheld a law prohibiting the carrying of concealed weapons because the law was “a reasonable regulation on the time, place, and manner in which the right to bear arms may be exercised.”2

However, in  State v. Hamdan, a companion case to Cole, the supreme court carved out an exception to this law and reaffirmed the constitutional right to bear arms for the purpose of security.3 The court emphasized that the state may regulate firearms under its police power, noting that “only if the public benefit in . . . exercise of the police power [to regulate firearms] is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional as applied.”4

Following an extensive review of statutory and case law from other jurisdictions pertaining to both the carrying of concealed weapons and the right to “bear arms,” the court found that the defendant had a constitutional right under Article I, Section 25 to “keep and bear arms for the lawful purpose of security at the time he carried his concealed weapon . . . .” and reversed the defendant’s conviction.5

The court noted that “[i]f the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.”6

In determining if an Article I, § 25 challenge to a concealed weapons prosecution may be raised, however, the court held that a defendant will be required to affirmatively answer whether: 1) under the circumstances, the defendant’s interest in concealing a firearm to “facilitate exercise of his or her right to keep and bear arms” substantially outweighed the state’s interest in enforcing the concealed weapons statute; and 2) the defendant concealed the firearm because concealment was “the only reasonable means under the circumstances to exercise his or her right to bear arms.”7

Following the principles of Cole and Hamdan , the Supreme Court of Wisconsin dismissed another constitutional challenge to a concealed weapons prosecution under § 941.23 in State v. Fisher.8 The defendant, a tavern owner, argued that he kept a loaded gun in the center console of his car for security purposes because he routinely transported large amounts of cash generated by his business. The supreme court balanced the defendant’s interest in exercising his right to bear arms by concealing a firearm for purposes of security against the state’s interest in enforcing the concealed weapons statute, and concluded that “carrying a concealed and dangerous weapon in a vehicle will generally be contrary to the state’s interest in protecting the health, safety, and welfare of Wisconsin citizens.”9 The court upheld the defendant’s concealed weapons conviction and noted that this state regulation generally will not present any constitutional challenge, “except in extraordinary circumstances.”1011

  1. Wis. Const. art I, § 25. []
  2. State v. Cole, 2003 WI 112, ¶ 28, 264 Wis. 2d 520, ¶ 28, 665 N.W.2d 328, ¶ 28. []
  3. 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785 (2003). []
  4. State v. Hamdan, 2003 WI 113, ¶ 46, 264 Wis. 2d 433, ¶ 46, 665 N.W.2d 785, ¶ 46. []
  5. Id. at ¶ 46 (emphasis added). []
  6. Id. at ¶ 68. []
  7. Id. at ¶ 86. []
  8. 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495. []
  9. Id. at 148-49. []
  10. Id. at 149. []
  11. See also State v. Thomas, 2004 WI App 115, ¶¶ 8-12, 274 Wis. 2d 513, ¶¶ 8-12, 683 N.W.2d 497, ¶¶ 8-12 (2004) (rejecting an Art. I, § 25 challenge to Wis. Stat. § 941.29, which prohibits a felon from possessing a weapon, on the ground that the legislative history of the constitutional provision indicates both an intent to preserve pre-existing firearm regulations and the legislature’s authority to restrict firearm possession by felons). []

State Right to Bear Arms in Alabama

Posted on Tuesday, July 7th, 2015

Last Updated July 7, 2015

Article I, § 26 of the Alabama Constitution sets forth the right of a private individual to bear arms. In 2014, voters approved a radical amendment to this provision making it easier to challenge state and local gun laws in court. Article I, § 26 now reads:

“(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state.  Any restriction on this right shall be subject to strict scrutiny.

(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.”1

The 2014 amendment forces state courts to review gun laws under the technical and confusing judicial standard known as “strict scrutiny.” Laws evaluated under strict scrutiny—the toughest form of judicial review—are struck down more frequently by the courts because the standard is so high.

Very few courts in the nation apply this level of review to cases challenging gun laws. Using this standard, the court asks whether the law furthers a compelling government interest using the most narrowly tailored means to achieve that interest.

In the limited number of cases in which courts have applied strict scrutiny review to gun laws, the laws are most often struck down. Since the 2014 amendment, Alabama courts have yet to review a challenge to a gun law. Examples of measures outside of Alabama that have been invalidated under this standard include laws that:

  • ban transporting or possessing firearms outside of the home during a state of emergency2
  • ban guns in bars and other establishments where alcohol is sold or consumed on the premises3
  • ban possession of guns by individuals previously convicted of misdemeanor gun possession4
  • require that a person be a U.S. citizen to be eligible for a firearms license5
  • ban the sale or transfer of firearms within city limits6
  • ban the operation of shooting ranges within city limits7

Prior to the 2014 amendment, the Supreme Court of Alabama had long taken the position that the right to “bear arms” under the Alabama Constitution may be regulated by the state. In 1840, in State v. Reid, the court rejected an Article I, § 26 challenge to a statute authorizing criminal penalties for individuals convicted of carrying a concealed weapon.8 The court concluded, “The Constitution, in declaring that ‘every citizen has the right to bear arms in defense of himself and the state,’ has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne.”9

The Alabama Supreme Court has also rejected other Article I, § 26 challenges to state firearms statutes.10 However, whether those decisions will be followed in light of the 2014 amendment is an open question.

  1. Ala. Const., § 26. []
  2. Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012). []
  3. Taylor v. City of Baton Rouge, 2014 U.S. Dist. LEXIS 117919 (M.D. La., Aug. 25, 2014). []
  4. Gowder v. City of Chicago, 923 F. Supp. 2d 1110 (N.D. Ill. 2012). []
  5. Fletcher v. Haas, 851 F. Supp. 2d 287 (D. Mass. 2012). []
  6. Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014). []
  7. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). []
  8. 1 Ala. 612 (Ala. 1840). []
  9. Reid, 1 Ala. at 616 []
  10. See Isaiah v. State, 58 So. 53 (Ala. 1911) (rejecting an Article I, § 26 challenge to a statute [Ala. Code § 13A-11-52] prohibiting a person from openly carrying a pistol while on another’s premises); Davenport v. State, 20 So. 971 (Ala. 1895) (rejecting an Article I, § 26 challenge to a state law barring any person from pointing a loaded or unloaded firearm at another person). See also Bristow v. State, 418 So. 2d 927 (Ala. Crim. App. 1982) (rejecting an Article I, § 26 challenge to a statute [Alabama Code § 13A-11-72(a)] prohibiting a person previously convicted of a violent crime from possessing a pistol); Dickerson v. State, 517 So. 2d 625 (Ala. Crim. App. 1986) (rejecting another Article I, § 26 challenge to Alabama Code § 13A-11-72(a), rev’d on other grounds by Ex parte Dickerson, 517 So. 2d 628 (Ala. 1987). []

Large Capacity Ammunition Magazines in Colorado

Posted on Monday, July 6th, 2015

Colorado prohibits the sale, transfer and possession of a “large-capacity magazine.”1

“Large-capacity magazine” means:

  • A fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than 15 rounds of ammunition;
  • A fixed, tubular shotgun magazine that holds more than 28 inches of shotgun shells, including any extension device that is attached to the magazine and holds additional shotgun shells; or
  • A nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than eight shotgun shells when combined with a fixed magazine.2

“Large-capacity magazine” does not include:

  • A feeding device that has been permanently altered so that it cannot accommodate more than fifteen rounds of ammunition;
  • An attached tubular device designed to accept, and capable of operating only with, .22 rimfire ammunition; or
  • A tubular magazine that is contained in a lever-action firearm.3

A large-capacity magazine that is manufactured in Colorado after July 1, 2013, must include a permanent stamp or marking indicating that the large-capacity magazine was manufactured or assembled after July 1, 2013.  The stamp or marking must be legibly and conspicuously engraved or cast upon the outer surface of the large-capacity magazine.  The Colorado Bureau of Investigation may create rules for implementing this requirement, including additional identification information on each large-capacity magazine.4

Exceptions – A person may possess a large-capacity magazine if they owned the large-capacity magazine on or prior to July 1, 2013, and maintain continuous possession of the magazine.5  When a person charged with illegal possession of a large-capacity magazine claims to fall under this exception, the burden of proof is on the prosecution to prove otherwise.6

The large-capacity magazine ban does not apply to military or police agents that carry a firearm in the course of their official duties.  The ban also does not apply to an entity or employee of an entity engaged in the manufacture of large-capacity magazines within Colorado solely for transfer to any licensed gun dealer that sells large-capacity magazines exclusively to the armed forces, government agencies, a retailer operating outside of the state of Colorado, or a foreign national government approved by the U.S. for such transfers.7

See our Large Capacity Ammunition Magazines policy summary for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 18-12-302(1)(a). A violation of this prohibition will be punishable as a Class 2 misdemeanor, and it is a Class 6 felony to possess a large-capacity magazine during the commission of a felony or crime of violence. Colo. Rev. Stat. § 18-12-302(1)(a), (c). []
  2. Colo. Rev. Stat. § 18-12-301(2)(a). []
  3. Colo. Rev. Stat. § 18-12-301(2)(b). []
  4. Colo. Rev. Stat. § 18-12-303. []
  5. Colo. Rev. Stat. § 18-12-302(2)(a). []
  6. Colo. Rev. Stat. § 18-12-302(2)(b). []
  7. Colo. Rev. Stat. § 18-12-302(3). []

Prohibited Purchasers Generally in Colorado

Posted on Monday, July 6th, 2015

See our Prohibited Purchasers policy summary for a comprehensive discussion of this issue.

Federal law prohibits certain persons from purchasing or possessing firearms, such as felons, certain domestic abusers, and certain people with a history of mental illness.

The Colorado Bureau of Investigation (CBI) is required to deny the transfer of a firearm when:

  • The transfer would violate federal law;
  • The transfer would violate Colorado law;
  • The transferee has been arrested for or charged with a crime that would prohibit him or her from purchasing, receiving or possessing a firearm under state or federal law, and there has been no final disposition of the case or the final disposition has not been noted in the databases searched by CBI during a firearm transferee’s background check; or
  • The transferee is the subject of an indictment, information or a felony complaint alleging that the prospective transferee has committed a crime punishable by imprisonment for a term exceeding one year as defined by federal law.1

Colorado prohibits any person from knowingly possessing, using, or carrying upon his or her person a firearm subsequent to:

  • The person’s conviction for a felony, or an attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law; or
  • The person’s adjudication for an act which, if committed by an adult, would constitute a felony, or an attempt or conspiracy to commit a felony, under Colorado or any other state’s law or under federal law.2

For provisions prohibiting domestic abusers from possessing guns, see Domestic Violence and Firearms in Colorado.

Firearm transfers by unlicensed sellers (non-firearms dealers) are subject to background checks in Colorado. See the  Universal Background Checks in Colorado section.

  1. Colo. Rev. Stat. § 24-33.5-424(3)(a), (b). []
  2. Colo. Rev. Stat. § 18-12-108(1), (3). []

Alabama State Law Summary

Posted on Monday, July 6th, 2015

alabama

alabama

While Alabama does require handgun dealers to obtain a state license, this requirement does not apply to dealers who only sell rifles and shotguns. In addition, Alabama does not:

Local governments in Alabama generally lack authority to regulate firearms or ammunition.

In 2013, Alabama had the sixth highest number of gun deaths per capita among the states. In addition, based on data published by Mayors Against Illegal Guns (“MAIG”), in 2009 Alabama ranked fifth among the states in the rate of crime gun exports – guns originally purchased in that state that were recovered after being used in a crime in another state. Alabama exports crime guns at a rate that is more than double the national average, and more than double the rate at which it imports crime guns from other states.
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Minimum Age to Purchase & Possess in Colorado

Posted on Sunday, July 5th, 2015

In Colorado, any person under age 18 may not knowingly possess a handgun, except:

  • When in attendance at a hunter’s or firearms safety course;
  • During lawful firearm or target shooting;
  • During certain organized competitions or performances;
  • When hunting or trapping with a valid state license;
  • When traveling to or from such activities as previously noted;
  • When on property under the control of the person’s parent, legal guardian or grandparent with the permission of such person’s parent, legal guardian or grandparent; or
  • When at the person’s residence, with the permission of the person’s parent or legal guardian, for the purpose of lawful self-defense.1

Colorado does not provide a minimum age to possess rifles or shotguns. Colorado also provides no minimum age for the purchase of a handgun or a long gun, although federal age restrictions still apply.

For additional age-related restrictions, see the Colorado Child Access Prevention section.

See our Minimum Age to Purchase & Possess Firearms policy summary for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 18-12-108.5(1), (2). []

Disarming Prohibited Persons in Colorado

Posted on Sunday, July 5th, 2015

Colorado enacted a law in 2013 to remove guns from the hands of domestic abusers. See Domestic Violence and Firearms in Colorado for more information about that law.

Colorado has no law requiring the removal of firearms from other persons who have become prohibited from possessing them. However, Colorado law provides that, upon the discharge of any inmate from the custody of the Colorado Department of Corrections, the Department must provide a written advisement to the inmate that it is a crime if the person knowingly possesses, uses, or carries upon his or her person a firearm subsequent to the person’s conviction for a felony, or an attempt or conspiracy to commit a felony. Any written stipulation for a deferred judgment and sentence must contain the same written advisement.1

  1. Colo. Rev. Stat. § 18-12-108. []

Mental Health Reporting in Colorado

Posted on Sunday, July 5th, 2015

See our Mental Health Reporting policy summary for a comprehensive discussion of this issue. Federal law prohibits possession of a firearm or ammunition by any person who has been “adjudicated as a mental defective” or involuntarily “committed to any mental institution.”1 No federal law, however, requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.

In 2013, Colorado clarified its mental health reporting requirements, as part of the same bill that requires background checks before unlicensed firearms sales.  The State Court Administrator must now send electronically to the Colorado Bureau of Investigation (CBI)  the name of each person determined by the court to be:

  • incapacitated by court order;
  • committed to the custody of the Colorado Department of Human Services that administers behavioral health programs including those related to mental health and substance abuse;
  • ordered for involuntary certification for short-term treatment of mental illness;
  • ordered for extended certification for treatment of mental illness; or
  • ordered for long-term care and treatment for mental illness.

The State Court Administrator must make such a report not more than 48 hours after receiving notification of a person who meets the above descriptions.  However, the State Court Administrator must take all necessary steps to cancel a record in the NICS system if:

  • The person to whom the record pertains makes a written request to the State Court Administrator; and
  • No less than three years before the date of the written request:
    • The period of commitment of the most recent order of commitment expired; or
    • A court entered an order terminating the person’s incapacity or discharging the person from commitment in the nature of habeas corpus, if the record in the NICS system is based on an order of commitment to the custody of the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse.2

The State Court Administrator must not cancel any record pertaining to a person with respect to whom two recommitment orders have been entered or who was discharged from treatment on the grounds that further treatment will not likely bring about significant improvement in the person’s condition.3 If a court becomes aware that the basis upon which a record reported by the State Court Administrator to CBI does not apply or no longer applies, the court must:

  • Update, correct, modify, or remove the record from any database that the federal or state government maintains and makes available to NICS, consistent with rules pertaining to the database; and
  • Notify the Attorney General that such basis does not apply or no longer applies.4

The 2013 law set forth a judicial procedure for restoring a person’s gun eligibility after being subject to the federal firearm prohibitions for the dangerously mentally ill, pursuant to the federal NICS Act of 2007.5

Colorado specifically authorizes the obtaining, accessing, use or disclosure of relevant medical records or medical information for firearm purchaser background checks purposes by CBI, the clerk of the court of any judicial district, the clerk of the probate court of the city and county of Denver, or by any of their employees, as well as accessing such records and information through the NICS system.6 For general information on the background check process and categories of prohibited purchasers or possessors, see the Colorado Background Checks section and the section entitled Colorado Prohibited Purchasers Generally.

  1. 18 U.S.C. § 922(d)(4). []
  2. Colo. Rev. Stat. §§ 13-5-142(1)-(3); 13-9-123(1)-(3). []
  3. Colo. Rev. Stat. §§ 13-5-142(3)(b)(II); 13-9-123(3)(b)(II). []
  4. Colo. Rev. Stat. §§ 13-5-142(4); 13-9-123(4). []
  5. See Colo. Rev. Stat. § 13-5-142.5; 13-9-124. []
  6. Colo. Rev. Stat. § 18-4-412(4). []

Multiple Purchases & Sales of Firearms in Colorado

Posted on Sunday, July 5th, 2015

Colorado has no law restricting sales or purchases of multiple firearms.

See our  Multiple Purchases & Sales of Firearms for a comprehensive discussion of this issue.

Retention of Sales & Background Check Records in Colorado

Posted on Sunday, July 5th, 2015

In 2013, Colorado began requiring unlicensed transfers of firearms to be preceded by a background check processed by a licensed dealer.  The dealer is required to comply with all state and federal laws as if he or she were transferring the firearm from his or her inventory to the prospective transferee.  Consequently, the federal law requiring dealers to maintain records of sales applies.1  Colorado law adds that the dealer must provide a copy of the results of the background check to both the unlicensed seller making the firearm transfer, and the party receiving the firearm.2

Colorado law also requires any person or entity engaged in the retail sale of firearms to record each handgun transfer, including the purchaser’s or transferee’s name, age, occupation and address; the make, caliber, finish, and serial number of the handgun; and the date and the name of the transferring employee. These records must be available for inspection by law enforcement “at all times.”3 The time period for retention of these records is unspecified.

An administrative regulation of the Colorado Bureau of Identification (CBI) provides that any information pertaining to an approved individual that is collected or created pursuant to a background check for a firearm transfer must be destroyed within 24 hours of the issuance of the approval. CBI must maintain the transaction number, the date and time of its issuance, and the firearms dealer to whom it was relayed.4

See our Retention of Firearm Sales & Background Check Records policy summary for a comprehensive discussion of this issue.

  1. Colo. Rev. Stat. § 18-12-112(2). []
  2. Colo. Rev. Stat. § 18-12-112(2)(b), (c).  See the  Universal Background Checks in Colorado section for further information. []
  3. Colo. Rev. Stat. § 12-26-102. []
  4. 8 Colo. Code Regs. § 1507-20. []