Opinion
No. 01-2181-CR.
Opinion Released: July 29, 2003. Opinion Filed: July 29, 2003.
APPEAL from judgment and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Jarrell L. Henry appeals from the judgment of conviction for carrying a concealed weapon, following his guilty plea, and from the order denying his motion for postconviction relief. He argues that Wis. Stat. § 941.23 (1999-2000) is unconstitutional. Consistent with the Wisconsin Supreme Court's decisions in State v. Cole , 2003 WI 112, ___ Wis.2d ___, ___ N.W.2d ___, and State v. Hamdan , 2003 WI 113, ___ Wis.2d ___, ___ N.W.2d ___, this court affirms.
Henry also was convicted of fleeing an officer but he does not challenge that conviction on appeal.
¶ 2. This appeal, received by this court in 2001, was placed on hold pending the supreme court's resolution of appeals involving constitutional challenges to Wis. Stat. § 941.23. Given the long pendency of this appeal, and given that, as the parties must realize, the supreme court's decisions effectively dispose of the issues involved here, this court now will expeditiously address this appeal.
¶ 3. According to the factual summary in Henry's brief to this court:
The record reflects that Mr. Henry was arrested [on September 27, 2000] after the police were dispatched to the 4800 block of North 40th Street because an individual had been seen displaying a handgun. When the police attempted to effect a traffic stop of the vehicle driven by Mr. Henry, he did not respond and drove away. He eventually did stop several blocks away after he was pursued by the police and was arrested. A black .45 caliber semi-automatic pistol was found on the driver's seat of the vehicle.
(Citation omitted.)
¶ 4. Henry presents two facial challenges to Wis. Stat. § 941.23. He contends:
First, because the plain language of [art. I, § 25 of the Wisconsin Constitution] is inconsistent with the statutory restriction, the amendment supercedes and effectively repeals the statute. Second, the prohibition on carrying a concealed weapon is an unconstitutional exercise of the state's police power because it is not narrowly tailored to serve its purpose but, instead, sweeps so broadly so as to severely impinge on the fundamental right to bear arms guaranteed by the amendment.
¶ 5. In Cole , the supreme court essentially rejected these arguments and concluded "that the CCW statute is not effectively repealed by the right to bear arms amendment and that such a prohibition is a reasonable time, place, and manner restriction upon the right." Cole , ___ Wis.2d ___, ¶ 35.
¶ 6. Henry presents no "as applied" challenge. His circumstances are not akin to those presented in Hamdan and, therefore, they would not allow for any tenable defense that the application of the statute "unreasonably impair[ed his] right to keep and bear arms." See Hamdan , ___ Wis.2d ___, ¶ 41.
By the Court. — Judgment and order affirmed.