¶ 99. (concurringI dissenting). For the reasons set forth below, I respectfully concur/dissent, since I agree with the majority's result that Hamdan's conviction should be reversed, but I dissent on the majority's action in remanding this matter.
¶ 100. The majority in this case improperly reads exceptions into Wis. Stat. § 941.23 in order to hold that it is constitutional. Such exceptions to the statute should not be made by this court, but by the legislature. Looking at the statute itself, I conclude that Wis. Stat. § 941.23 has become unconstitutional with the passage of Article I, Section 25 of the Wisconsin Constitution. I agree with Chief Justice Abrahamson's dissent that the majority erroneously assigns to a court, rather than a jury, the task of determining factual issues involving whether a defense to a charge of carrying a concealed weapon is available to a defendant.
¶ 101. I agree with her dissent that this court should not attempt to engraft exceptions onto Wis. Stat. § 941.23, in order to try to make it conform to constitutional strictures. Chief Justice Abrahamson's dissent, ¶ 115. If the statute does not conform to the Wisconsin Constitution, as amended, then the statute is unconstitutional. See State v. Zarnke, 224 Wis. 2d 116, 139-140, 569 N.W.2d 370 (1999); State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997).
¶ 102. I strongly disagree, however, with Chief Justice Abrahamson's conclusion that the statute survives the constitutional amendment and remains constitutional. In light of Article I, Section 25 of the Wisconsin Constitution, I conclude that Wis. Stat. § 941.23 is unconstitutional because it is unnecessarily broad and rigid now and provides no exceptions as it is written. The statute is not a reasonable exercise of the *495state's police power. If the majority were to refrain from attempting to find exceptions in the statute where none exist, it too would presumably find it unconstitutional.
¶ 103. The breadth of the statute is incompatible with the broad constitutional right to bear arms. Its prohibition extends to anyone at any time and, therefore, improperly and unnecessarily impinges on a person's right to bear arms "for security, defense, hunting, recreation or any other lawful purpose."1 The-statute has been held to prohibit a gun placed on the front seat of a car,2 in a glove compartment,3 or on a shelf behind the driver's seat.4 One "goes armed" even when going nowhere with the concealed weapon.5
¶ 104. It may be argued that Wis. Stat. § 941.23 withstands the constitutional test, as a reasonable exercise of the state's police power. A state may permissibly exercise its police power in order to promote the general welfare. Reginald D. v. State, 193 Wis. 2d 299, 308, 533 N.W.2d 181 (1995). However, the state's police power is subject to limitations, and is not to be used in an unreasonable or excessive fashion, and, as such, is limited by the state and federal constitutions. State v. Interstate Blood Bank, Inc., 65 Wis. 2d 482, 490, 222 N.W.2d 912 (1974). Other Wisconsin weapons laws have *496been more narrowly tailored, and, thus, do not suffer the same constitutional vulnerability as the one at hand here.6 The state's police power cannot save a prohibition that sweeps as broadly as Wis. Stat. § 941.23.
¶ 105. Notwithstanding the majority's exceptions engrafted onto the statute, it logically extends to such a wide variety of scenarios that it leaves no " 'open ample alternative channels by which the citizen may exercise the right at issue.'" Brandmiller v. Arreola, 199 Wis. 2d 528, 541, 544 N.W.2d 894 (1996) (quoting Lutz v. City of York, Pennsylvania, 899 F.2d 255 (3d Cir.1990)). Logically extended, as the State conceded at oral argument, it prohibits a gun owner from storing his weapons out of plain sight, such as in a gun cabinet, closet, or drawer in his home. If such reasonable actions are foreclosed by the statute, owners of firearms and other dangerous weapons have been effectively, and significantly, deprived of the means by which they may exercise the constitutional right to bear arms for any lawful purpose.
¶ 106. Since, in my opinion, the statute is unconstitutional in light of the constitutional amendment, then making changes to it, so that the statute will be constitutional in the future, is the province of the legislature. Policy decisions affecting the statute's constitutionality should be made in typical legislative fashion. Public hearings and vigorous debate by members of the legislature are appropriate methods to employ when developing a law that is appropriate for the citizens of Wisconsin and within constitutional mandates. By its *497approach of attempting to engraft its exceptions onto the statute, the majority squelches this process.
¶ 107. The majority is correct in pointing out that among the six states that have a constitutional provision guaranteeing the right to bear arms, but do not allow any class of citizens to carry concealed weapons legally, Wisconsin is unique in the strictness of its prohibition. Majority op., ¶ 50. Wisconsin's carrying concealed weapons (CCW) law contains no exceptions. The other five states mentioned above have CCW laws that contain significant exceptions, the most common exception being for one's home or place of business.7 The constitutional approach in Wisconsin that is proposed by the majority, rewriting the Wisconsin CCW law by this court, is not the way to adopt exceptions that allow Wisconsin citizens to exercise their rights reasonably.
¶ 108. Other state courts have recognized the state's police power to regulate the constitutional right to bear arms, but have also held that "the legitimate *498governmental purpose in regulating the right to bear arms cannot be pursued by means that broadly stifle the exercise of this right where the governmental purpose can be more narrowly tailored." City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988). In many cases, courts have held a CCW statute or ordinance to be unconstitutional because it was unnecessarily broad. See, e.g., City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) (holding ordinance that prohibited possession or carrying of dangerous weapon violated right to bear arms); Junction City v. Mevis, 601 P.2d 1145 (Kan. 1979) (striking down gun-carrying ordinance as too broad); State v. Delgado, 298 Or. 395, 404, 692 P.2d 610, 614 (1984) (holding statute prohibiting the carrying of a switchblade too broad); State v. Kessler, 614 P.2d 94 (Or. 1980) (holding possession of a billy club in defendant's home protected by state constitution); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928) (holding ordinance prohibiting carrying of pistol unconstitutional).
¶ 109. As an examination of other jurisdictions facing the same question shows, Wisconsin must modify its statutes in order that it does not, in effect, bar its citizens from legally exercising their right to bear arms, as described in Article I, Section 25 of our state constitution. This might be done by either: (1) Creating a licensing system by which certain qualified individuals are certified to carry concealed weapons; or (2) creating exceptions to Wis. Stat. § 941.23 that narrow the scope of the law to cover only certain reasonable time, manner and place restrictions on the carrying of concealed weapons. Only then will Wisconsin's CCW statute be insulated from the legitimate constitutional attack that it is too broad.
*499¶ 110. If this court were to strike down the current Wisconsin CCW statute, there would be legitimate concerns about the state of the law in this state during the interim, until the legislature could amend the statute to conform with the Wisconsin Constitution, as amended. However, the effective date of such a decision could be delayed, in order to provide the legislature sufficient time to enact the necessary amendments to the present law. See Dep't of Corr. v. Kliesmet, 211 Wis. 2d 254, 267, 564 N.W.2d 742 (1997) (delaying, for one year, the effective date of this court's decision limiting the authority of the Wisconsin Department of Corrections to house inmates in county jails over sheriffs' objections); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 42, 115 N.W.2d 618 (1962) (delaying, for 40 days, the effective date of this court's decision abrogating the doctrine of governmental tort immunity).
¶ 111. The decision in the companion to this case, State v. Cole,8 also includes a constitutional analysis of Wis. Stat. § 941.23, concluding that the statute is constitutional. I join the majority in that case, but only as to the mandate. I conclude that in Cole, the constitutional analysis is unnecessary because the defendant knowingly and intelligently entered a plea of guilty, thus waiving any claim of a constitutional violation. Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980); Edwards v. State, 51 Wis. 2d 231, 186 N.W.2d 193 (1971); State v. Biastock, 42 Wis. 2d 525, 532, 167 N.W.2d 231 (1969). Thus, there was no need to consider the constitutional issue because of the waiver. State v. Thomas, 2000 WI 13, ¶ 16, 232 Wis. 2d 714, 726, 605 N.W.2d 836 (2000). See also, State v. Bangert, 131 Wis. *5002d 246, 389 N.W.2d 12. See also State v. Minniescheske, 127 Wis. 2d 234, 378 N.W.2d 283 (1985).
¶ 112. Lastly, I agree, also, with Chief Justice Abrahamson's determination that the majority improperly gives factual determinations to the judge to decide, as a matter of law, and not to the jury, concerning whether a defense is available to a defendant in a concealed weapon case. Majority op., ¶ 85, and Chief Justice Abrahamson's dissent, ¶ 132. It is for a jury to determine whether to believe defendant's version of events. State v. Coleman, 206 Wis. 2d 199, 214, 556 N.W.2d 701 (1996). The majority here requires the court, inappropriately, to weigh the evidence and make factual decisions relating to a constitutional defense against a CCW charge.
¶ 113. The majority in this case erroneously reads exceptions into Wis. Stat. § 941.23 rather than allowing the legislature to determine how to make the statute conform to the requirements of the constitution, as amended. I conclude that Wis. Stat. § 941.23 is unconstitutional now, because of the constitutional amendment adopted by Wisconsin's citizens. I would, in a delayed holding allowing time for the legislature to act, find the present statute unconstitutional, and, therefore, I respectfully concur since I agree with the majority's result that Hamdan's conviction should be reversed. However, I dissent on the majority's action in remanding this matter.
Wis. Const, art. I, § 25.
State v. Walls, 190 Wis. 2d 65, 73, 526 N.W.2d 765 (Ct. App. 1994).
State v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986).
Mularky v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930).
State v. Keith, 175 Wis. 2d 75, 79, 498 N.W.2d 865 (Ct. App. 1993) (holding that the elements of the offense do not "requir[e] that a person actually go somewhere, and, therefore, carrying a concealed weapon 'does not necessarily import the idea of locomotion.'") (citing 94 C.J.S. Weapons sec. 8a (1956)); Majority op, ¶ 24.
Wis. Stat. §§ 941.26 (machine guns), 941.28 (short-barreled shotguns and rifles), 941.29 (possession by a felon), 948.60 (possession by a minor), and 948.605 (possession in a school zone).
Ill. Comp. Stat. Ann. 5/24r-l(a)(4) (2000) ("... except when on his land or in his own abode or fixed place of business . . . ."); Kan. Stat. Ann. § 21-4201(a)(4) (1995) ("... except when on the person's land or in the person's abode or fixed place of business."); Mo. Ann. Stat. § 571.030(3) (1995) (". . . in his dwelling unit or upon business premises over which the actor has possession ...."); Neb. Rev. Stat. § 28-1202(2) (1995) (providing exception for when "the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family."); Ohio Rev. Code Ann. § 2923.12(C) (1997) (providing exception for "going to or from the actors lawful business or occupation" and "while in the actor's own home.").
State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328.