All Is Forbidden

Via Volokh, the 7th Circuit opinion on open carry: Gonzalez vs. West Milwaukee.

I'm not especially upset by this decision, since as the judges readily admit, the substantive issue has been superceded legislatively. Wisconsin passed a constitutional amendment in 1998 securing the right to keep and bear arms. Late last year, it also implemented CCW regime and, significantly, clarified the "disorderly conduct" statute specifically excluding the carrying of firearms from its scope. It was on this latter charge that Gonzalez was arrested twice, in 2008 and 2009.

Gonzalez is hardly the ideal poster child for the 2nd Amendment, as his subsequent conviction for negligent homicide demonstrates. The right to open carry should be asserted by all with the courage to do so; however, simultaneously dressing like a character from The Matrix trilogy, as Gonzalez did, is probably not the best approach.

What's interesting to me about the opinion is its window into the way judges think when they choose to: everything is forbidden. There was no law in Wisconsin against the open carry of a firearm, but the district court believed that “'[n]o reasonable person would dispute' that openly carrying a firearm in a retail store 'is highly disruptive conduct' and 'virtually certain to create a disturbance.'” So daren't actually exercise the freedom.

The 7th Circuit agrees with this, but for the state constitutional affirmative right. But then it writes,

At the time of Gonzalez’s arrest, the legality of open carrying was debatable and had in fact been debated in two cases in the state supreme court testing the scope of Wisconsin’s recently adopted constitutional provision guaranteeing an individual right to bear arms.

So the people of Wisconsin pass a constitutional right, and this merely makes it debatable whether it supercedes a mere statute, and one as broad and ill-defined as "disorderly conduct"?

Ultimately, Gonzalez was never charged. This case was brought by Gonzalez for "declarative relief", which I think means that he wanted it established that he shouldn't be arrested anymore. But for some reason, perhaps because he wasn't charged, Gonzalez' Fouth Amendment claim was against the individual officers, and on this the court gave the officers "qualified immunity".

Now, I'm not a lawyer, so maybe one of my readers can explain this to me. I'll admit that I'm a bit uncomfortable holding police officers individually liable for actions that don't obviously contravene their department's policy. It's the policy that's the appropriate target here. But it seems that the standard set forth by the 7th Circuit, were it to be applied broadly, would make it pretty dang difficult to assert any right at all. Ultimately, while it's nice to not be prosecuted, giving police officers "qualified immunity" for molesting citizens guarantees that few people with, you know, jobs and mortgages are going to actually exercise any of the freedoms they theoretically retain.

Happily, the people of Wisconsin seemed to have finally made it clear to the courts that the right to keep and bear arms means exactly what it says. But . . . what about Christians in Dearborn, Michigan, routinely harrassed by police for exercising their rights of speech and assembly? This is obviously illegal, and the police know it, but that alone doesn't stop them.

UPDATE: More disorderly conduct nonsense.