¶ 114. (dissenting). I conclude that Wis. Stat. § 941.23, prohibiting people from going armed with a concealed weapon, is constitutional as written and as applied. The Wisconsin constitution provides that "[t]he *501people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."1 I therefore dissent.
¶ 115. The court should not rewrite Wis. Stat. § 941.23 to include exceptions for owners of "privately operated businesses" and persons in their "private residences."2 If Wis. Stat. § 941.23 is unconstitutional because it is too broad, needing exceptions to render it constitutional, the court should strike the statute down and allow the legislature to enact a more narrow prohibition. We have often said that "courts cannot go beyond the province of legitimate construction to save [a statute], and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.3 Moreover, *502"defining the contours of laws subjecting a violator to criminal penalty is a legislative, not a judicial, function."4
¶ 116. The first part of this dissent explains that Wis. Stat. § 941.23 is constitutional as applied to the defendant here because it is a reasonable exercise of the State's police power, and it does not eviscerate the defendant's right to keep and bear arms for security. The second part of this dissent explains why the majority opinion errs when it gives courts the authority to determine, as a matter of law, that a given defendant may have a valid constitutional defense to a charge of carrying a concealed weapon, subject to a determination of lawful purpose by the finder of fact. Finally, I comment on the majority opinion's failure to appreciate the extent to which it has frustrated the ability of the legislature to set public policy on concealed weapons in Wisconsin.
I — H
¶ 117. Under State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, we are to presume that Wis. Stat. § 941.23 is constitutional, and we impose the heavy burden of proving that it is unconstitutional on *503the challenger, the defendant in this case.5 Any reasonable doubts about the statute must be resolved in favor of constitutionality.6
¶ 118. Furthermore, because the statute is an exercise of the State's police power, judicial review is limited to whether the exercise of that power is reasonable.7 In reviewing the reasonableness of the statute, it is not for this court to pass judgment on the wisdom of the legislation. "Where legislative action is within the scope of the police power, fairly debatable questions as to reasonableness, wisdom, and propriety of action, are not for the determination of the court but for the legislative body."8
¶ 119. To determine whether Wis. Stat. § 941.23 is constitutional on the facts of this case we must ask two questions. The first question is whether the regulation on concealed weapons is a reasonable exercise of the police power, namely, does the statute promote public safety, health, or welfare and bear a reasonable *504relation to accomplishing those purposes.9 The second question is whether the reasonable exercise of the state's police power eviscerates the constitutional right to bear arms.
¶ 120. No one disputes that the prohibition on carrying a concealed weapon is a reasonable exercise of the State's police power.10 Wisconsin Stat. § 941.23 promotes public safety. The primary justification for the prohibition on carrying concealed weapons is that it protects the public by preventing an individual from having a deadly weapon on hand of which the public (including a law enforcement officer) is unaware, which may be used in the sudden heat of passion.11 The public is safer, the argument goes, if it is able to take notice of those people who are carrying weapons and proceed accordingly. Indeed, in a case similar to the present case, State v. Mata, 199 Wis. 2d 315, 321, 544 N.W.2d 578 (Ct. App. 1996), the court of appeals concluded that a persuasive argument can be made that "a tavern owner's display of a handgun may deter crime while concealment of the gun probably would not."12
*505¶ 121. Moreover, by making it a misdemeanor to carry a concealed weapon, Wis. Stat. § 941.23 bears a reasonable and substantial relationship to the end of promoting public safety. Criminalizing conduct stigmatizes conduct and deters people from doing it, a conclusion the majority opinion agrees with as well.13
¶ 122. The second question in the present case is whether the reasonable exercise of the State's police power eviscerates the constitutional right to bear arms.14 As the majority opinion explains, an otherwise reasonable exercise of police power cannot be invoked in a way that "eviscerates," "destroys," "frustrates," or "nullifies" the constitutional right to bear arms.15 Short of that, however, as the majority opinion further explains, the right to bear arms is not absolute and is subject to reasonable regulation.16
¶ 123. In order to determine whether a statute eviscerates a constitutional right or merely reasonably regulates a constitutional right we must examine the "degree" to which the regulation frustrates the purpose of the constitutional right.17 For example, in City of Seattle v. Montana, 919 P.2d 1218 (Wash. 1996), the *506Washington Supreme Court upheld a city ordinance regulating the carrying and possession of "dangerous knives" in the face of a constitutional amendment granting the right to bear arms. The court reasoned that the police power was reasonably exercised to "promote public safety and good order," and that the city did not enact a "complete prohibition on possession and carrying knives" but merely "regulated the carrying, transport, and use of knives."18 Therefore, the statute was constitutional.19
¶ 124. Wisconsin Stat. § 941.23 is similarly constitutional when applied to the defendant because it does not eliminate the right of an owner of a privately operated business to bear arms for security or defense but simply limits the manner in which he or she may exercise the right to bear arms. That is, § 941.23 does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes. *507Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed.20 The gist of the offense is the concealment. Thus, nothing about Wis. Stat. § 941.23 comes close to eviscerating, destroying, frustrating, or nullifying the right to bear arms in Wisconsin for the defendant here or any other person. The right to bear arms "is not impaired by requiring individuals to carry weapons openly."21
¶ 125. The majority opinion reaches a different answer to this second question. The majority opinion concludes that prohibiting an owner of a privately operated business from carrying concealed weapons for purposes of security renders meaningless the right to bear arms.22
¶ 126. The majority opinion's contrary conclusion results from the fact that it goes beyond an examination of the degree to which the right is restricted and instead weighs the merits of the policy supporting Wis. Stat. § 941.23 as a reasonable exercise of the State's police power when applied to the owner of a privately operated business. The majority opinion concludes, for *508example, that a person is less likely to "act on impulse" or in the heat of passion "in a familiar setting in which the safety and satisfaction of customers is paramount and the liability for mistake is nearly certain."23 The majority also concludes that "[a] shopkeeper is not likely to use a concealed weapon to facilitate his own crime of violence in his own store."24 Finally, the majority opinion asserts that there is less need in these circumstances for innocent customers to be notified that the owner of a business possesses a weapon— anyone who enters a business premises "should presume that the owner possesses a weapon, even if the weapon is not visible."25
¶ 127. In short, the majority opinion engages in its own consideration of public policy and promulgates its own views of human psychology to reach its conclusion that Wis. Stat. § 941.23 is unconstitutional as applied to an owner of a privately operated business without the benefit of any facts or reasoned debate on the matter or giving credence to the legislature's determination of public policy or views about human psychology.26
¶ 128. The majority opinion's consideration of policy and psychology is in error. First, the majority's conclusions are unpersuasive. It seems equally plausible to argue that a person will act less rationally and more impulsively in defending his or her own privately *509owned business (a familiar place) because the person's interest in security is so strong and the feeling of violation from any breach in that security is so great. Likewise, there is no evidence that a crime of violence is less likely for a shop owner in his own store. A shop owner who has a gun and is frightened, intimidated, or threatened is more likely to use it, and as the Wyoming Supreme Court concluded in upholding its own concealed weapon law, "it is not always necessary, nor is it always lawful, to use deadly force in one's own defense."27 Finally, it is equally plausible to conclude that the privately operated business is a "public place," that customers will be exposed to the danger of a concealed weapon in public places, and a business owner's right to carry a concealed weapon for security is outweighed by the needs of public safety.28
¶ 129. Second, and more importantly, the majority's dubious conclusions are irrelevant. The stat*510ute is presumed constitutional and the burden on the challenger is heavy. By enacting the statute the legislature has determined that public safety is advanced when owners of privately operated businesses, like all other individuals, are required to carry their guns openly. Although the majority opinion has set forth counter-arguments to the legislature's determination that concealed weapons are hazardous to public safety, neither the majority opinion nor the challenger has carried the heavy burden of demonstrating that the legislative determination is unconstitutional because the degree to which it restricts the right to bear arms for owners of privately operated businesses eviscerates the constitutional right.
II
¶ 130. While I conclude that Wis. Stat. § 941.23 is constitutional as applied, I write further because I believe that the majority also errs when it parcels out between judge and jury the questions necessary for determining whether its newly created constitutional defense to a charge of carrying a concealed weapon is available to a defendant.
¶ 131. The majority opinion concludes that a defendant who challenges a prosecution for carrying a concealed weapon on constitutional grounds will be required to secure affirmative answers to two "legal questions" for the circuit court before he is entitled to raise a constitutional defense and one question of fact for the fact finder at trial before he may prevail.29 The two legal questions for the circuit court are: (1) did the defendant's interest in concealing the weapon substantially outweigh the State's interest in enforcing the *511concealed weapons statute; and (2) was concealment the only reasonable means under the circumstances to carry the gun.30 Then, according to the majority opinion, if the defendant receives affirmative answers to these two questions the trier of fact must determine by means of a separate verdict question whether the defendant had a lawful purpose for carrying the weapon.31
¶ 132. It is unclear to me why the questions are so divided. First, it is well established in Wisconsin law that a court commits error by refusing to give a theory of defense instruction to the jury when a defendant presents sufficient evidence in support of the defense. When deciding whether a defendant is entitled to assert a defense, a court does not weigh the evidence. It asks only whether a reasonable construction of the evidence, viewed most favorably to the defendant supports the alleged defense. A court may refuse the defendant's request for an instruction only when there is no evidence to support it.
¶ 133. Moreover, in cases involving claims that a criminal prosecution impermissibly infringes upon a constitutionally protected right, it is typically the jury that determines whether the constitutional defense is available to the defendant. For example, a person is prosecuted under Wis. Stat. § 944.21(4) (1995-96) for distributing obscene materials. The statute defines obscene material to exclude materials protected by the First Amendment. The court instructs the jury, defining *512what is protected First Amendment free speech, and the jury decides whether the constitutional defense is available.32
¶ 134. In addition, Wis. Stat. § 940.203(2) (1997-98) penalizes a person who threatens a judge. To render the statute constitutional against a First Amendment challenge, the court defined the threat in the statute to cover only "true threats" in order to render the statute constitutional. A jury is instructed regarding the definition of "true threat" so that the jury can decide whether the facts fall within the statute or the prosecution is barred by the First Amendment.33
¶ 135. On the basis of these cases, which are, in my opinion, substantially similar to the case at bar, I question the majority opinion's excluding the jury from decision-making regarding guilt in the present case. Here we have a statute prohibiting the carrying of a concealed weapon. The court has read in a constitutional limitation. The majority opinion appears to turn our precedent on its head when it permits a court, not the jury, to reach substantive conclusions about the merits of a defendant's constitutional defense to a charge of carrying a concealed weapon when reasonable people might disagree. It seems to me that the majority opinion reverses well-established law when it concludes that a defendant must persuade a court as a matter of law that his defense is meritorious before his defense is presented to the jury. Under the majority opinion, when reasonable people could differ about the availability of *513the defense on the basis of the facts presented, a court is able to bar a defendant's defense.
¶ 136. A court may direct only an acquittal as a matter of law. Indeed, this court determines in the present case not just that the defendant was entitled to raise a constitutional defense in the present case but that he prevails in his defense as a matter of law. The majority opinion concludes that the defendant's conviction was unconstitutional and must be reversed unless the State can prove that the defendant carried a concealed weapon for an unlawful purpose.34
¶ 137. Second, assuming for the sake of argument that these two questions are properly questions of law for the court, it is unclear why the remaining question of lawful purpose is left to the jury.35 The majority opinion concludes that whether a defendant has an unlawful purpose for bearing a concealed weapon is a question of fact because "it may involve a state of mind for which competing evidence is necessary."36 Will there not be competing evidence going to the defendant's interest in concealing the weapon, the State's interest *514in enforcing the statute,37 or whether concealment was the only reasonable means under the circumstances to carry the gun? I recognize that a person's state of mind is typically a factual determination, but so is reasonableness. The majority opinion does not explain why lawful purpose (question three) is for the jury but not whether there is a reasonable alternative to concealing the weapon (question two).38
¶ 138. As an aside, I am puzzled about where the majority finds the requirement in the constitutional amendment that the purpose be lawful if the individual satisfies the circuit court that he had the weapon for security purposes. The majority opinion reads the constitutional amendment as requiring a person to carry the concealed weapon for security and for a lawful purpose. In so doing, the majority opinion is using the catchall in the constitution, "and any other lawful purpose" to restrict the word "security" preceding it. This requirement of "lawful purpose" seems to unduly restrict the constitutional amendment's application contrary to its terms. "There is no purpose for the presence of [the catchall phrase] except to expand the list of potential qualifying" purposes.39
*515¶ 139. Third, a court's determinations that the defendant's interest in concealing a weapon substantially outweighs the State's interest in enforcing the concealed weapons statute (question one) and that concealment is the only reasonable means under the circumstances to carry a weapon (question two) are necessarily intertwined with a determination that the defendant carried a concealed weapon for a lawful purpose. Thus, when a court determines that a constitutional defense may be raised it effectively nullifies the remaining question that the majority opinion reserves for a jury.
¶ 140. In the present case, for example, the court's conclusion that the defendant's interest in maintaining a concealed weapon substantially outweighs the State's interest in prohibiting concealed weapons is expressly premised on the fact that the defendant possessed and carried his weapon "for purposes of security."40 The majority opinion holds: "If the constitutional right to 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."41 A jury finding that the defendant carried a concealed weapon for an unlawful purpose plainly contradicts the applicability of this legal conclusion to the present case.
*516III. COMMENTARY
¶ 141. The majority opinion suggests that the legislature needs to "clarify the law" on carrying concealed weapons in light of the new constitutional right to keep and bear arms for security, defense, hunting, recreation, and any other lawful purpose.42 At the same time, it adopts principles of constitutional law for courts to use in determining whether a person has a constitutional defense to a charge of carrying a concealed weapon "until the legislature takes further action."43
¶ 142. In so doing, the majority opinion fails to. appreciate two important points.
¶ 143. First, the legislature's intent in the statute to prohibit the carrying of concealed weapons in all places is clear. The history of the constitutional amendment is replete with evidence that the amendment was not intended to abrogate existing statutory regulation of firearms. As this court acknowledged in Cole, the legislative history behind the constitutional amendment granting the right to bear arms in Wisconsin "clearly suggests that the legislature did not intend to repeal reasonable gun laws such as the CCW statute."44
¶ 144. The intent of the amendment was to prevent further erosion of the rights of gun owners, referring to local ordinances regulating guns.45 In addition, according to a public opinion poll at the time of *517the amendment, almost 80% of Wisconsinites opposed legalizing the carrying of concealed weapons.46
¶ 145. Second, the majority opinion has erected constitutional roadblocks to any further action the legislature might take to determine public policy on concealing firearms and other weapons. The constitutional right to bear arms in Wisconsin now includes a right not only for all owners of privately owned and operated businesses and persons in their private residences to carry concealed weapons for purposes of security, but for many others as well. The majority not only concludes that for the right to bear arms to mean anything it must mean that a person can conceal arms to "maintain the security of his private residence or privately operated business,"47 but also that the constitutional right to bear arms in Wisconsin further protects the right of any other person to carry a concealed weapon if a court determines that the person's interest in carrying a concealed weapon "substantially outweighs" the State's interest in enforcing the concealed *518weapons statute.48 The number of individuals who can fit under the umbrella is large.
¶ 146. More importantly, when any court concludes that an individual is exempted from the prohibition on carrying a concealed weapon under this "substantially outweighs" test, the court is determining that the constitution demands the exception. The legislature may not undo the court's determination absent another constitutional amendment.
¶ 147. The majority opinion concludes, "We happily concede that the legislature is better able than this court to determine public policy on firearms and other *519weapons."49 Unfortunately, the majority's recognition of its inferior ability did not dissuade it from reading two exceptions into the carrying concealed weapons statute and setting forth criteria for reading additional exceptions into the statute, effectively blocking the legislature from determining public policy concerning concealed weapons.
¶ 148. For the foregoing reasons, I dissent. «
Wis. Const, art. I, § 25.
Majority op., ¶ 68.
State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997). As this court has explained:
[WJere we to rewrite a statute whenever it failed constitutional muster in order to save it, using any means possible, the legislature would soon realize that it need not he concerned with constitutional limitations: the judiciary could always be relied upon to mend and mold its language to fit within constitutional constraints.
"While a statute should be held valid whenever by any fair interpretation it may be construed to serve a constitutional purpose, courts cannot go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative." It is well-established that "[wjhere the language used in a statute is plain, the court cannot read words into it that are not found.. . even to save its constitutionality, because this would he legislation and not construction.”
Finally, " '[ajlthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not *502and will not carry this to the point of. .judicially rewriting it". “Otherwise, there would be no such thing as an unconstitutional statute."
State v. Zarnke, 224 Wis. 2d 116, 139-140, 589 N.W.2d 370 (1999) (citations omitted).
State v. Popanz, 112 Wis. 2d 166, 177, 332 N.W.2d 750 (1983).
See State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328.1 disagree with this court's conclusion in Cole that a statute enjoys a presumption of constitutionality when it is enacted before adoption of the constitutional amendment in issue. Cole, 264 Wis. 2d 520, ¶ 52 (Abrahamson, C.J., concurring). I would say instead that no presumption of constitutionality applies and the defendant in this case carries the burden of showing that the statute is inconsistent with the constitutional amendment.
Nankin v. Village of Shorewood, 2001 WI 92, ¶ 10, 245 Wis. 2d 86, 630 N.W.2d 141 (citing Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 613 N.W.2d 849).
State v. Jackman, 60 Wis. 2d 700, 705, 211 N.W.2d 480 (1973).
State v. Dried Milk Prods. Co-op, 16 Wis. 2d 357, 363, 114 N.W.2d 412 (1962).
In Interest of Reginald D., 193 Wis. 2d 299, 308, 533 N.W.2d 181 (1995).
As the majority opinion explains, Wisconsin's prohibition of the carrying of concealed weapons is not only a reasonable exercise of police power but also serves many valuable purposes in promoting public safety. Majority op., ¶ 53.
Majority op. ¶¶ 54-56; see also State v. McAdams, 714 P.2d 1236, 1238 (Wyo. 1986).
The majority opinion dismisses this analysis as suspect in light of Article I, Section 25, see majority op., ¶ 72 n.32, yet nothing about the constitutional amendment changes the reasonableness or persuasiveness of the bald argument that openly displaying a handgun may deter crime while concealment probably would not.
Majority op., ¶ 56.
Majority op., ¶ 39.
Majority op., ¶¶ 40-41.
Majority op., ¶ 45.
City of Seattle v. Montana, 919 P.2d 1218, 1224 (Wash. 1996) (citing Second Amendment Found. v. City of Renton, 668 P.2d 596 (Wash. Ct. App. 1983)); see also State v. Boyce, 658 P.2d 577, 579 (Or. Ct. App. 1983) (regulation requiring people on a public street or in a public place to remove ammunition from their firearms is constitutional because it only regulates manner and does not unreasonably hinder right to bear arms); State v. Kessler, 614 P.2d 94, 99-100 (Or. 1980) (total prohibition on possession of billy clubs in all places is unconstitutional).
Seattle, 919 P.2d at 1225.
Similarly, in People v. Blue, 544 P.2d 385 (Colo. 1975), the Colorado Supreme Court concluded that a statute making it a felony for ex-offenders to possess, use, or carry a weapon was a reasonable exercise of the State's police power despite a state constitutional right to bear arms. The Court explained: (1) the statute is a legitimate exercise of the police power; (2) the legislature cannot enact laws in the name of police powers that "render nugatory [the] Bill of Rights and other constitutional protections"; but (3) a statute that "simply limits the possession of guns and other weapons by persons who are likely to abuse such possession" does not eviscerate a constitutional protection. Id. at 391.
See also Arnold v. Cleveland, 616 N.E.2d 163, 173 (Ohio 1993) (legislation survived constitutional scrutiny because the regulation achieved its goal of protecting the public by "limit[ing] the accessibility of certain generally recognized dangerous firearms").
See majority op., ¶ 46.
Dano v. Collins, 802 P.2d 1021, 1022-23 (Ariz. Ct. App. 1990).
See also Cole, 264 Wis. 2d 520, ¶ 49 ("[T]he right to bear arms is clearly not rendered illusory by prohibiting an individual from keeping a loaded weapon hidden either in the glove compartment or under the front seat in a vehicle."). The distinction between as applied and facial challenges is a difficult one to make. The distinction apparently arose in First Amendment cases, and its usefulness in other cases has troubled courts and scholars. See Schultz v. Natwick, 2002 WI 125, ¶ 20 n.19, 257 Wis. 2d 19, 653 N.W.2d 266.
Majority op., ¶ 68.
Majority op., ¶ 57.
Id.
Id.
See majority op., ¶ 74 ("Requiring a storeowner to openly display weapons as the only available means of exercising the right to keep and bear arms for security is impractical, unsettling, and possibly dangerous.").
McAdams, 714 P.2d at 1238 (quoting Garcia v. State, 667 P.2d 1148 (Wyo. 1983)) (emphasis added).
See majority op., ¶ 63 (quoting Ruby B. Weeks, Annotation, Scope and Effect of Exception, in- Statute Forbidding Carrying of Weapons, as to Person on His Own Premises or at His Place of Business, 57 A.L.R. 3d 938, § 2(a) (1974) (recognizing the danger of a concealed weapon in place where there is contact with the public)).
The majority opinion's conclusion that everyone should presume an owner of a privately operated business is carrying a concealed weapon is also dubious in the face of the majority opinion's contrary conclusion that carrying a gun openly is unreasonable since it "would alert criminals to the presence of the weapon and frighten friends and customers." Majority op., ¶ 73. Why is it reasonable and not frightening for customers to presume that all owners of a privately operated business are carrying a concealed weapon but frightening and unreasonable to permit the owner to carry that weapon openly?
Majority op., ¶ 86.
Id.
Id., ¶¶ 78, 86-87.
See County of Kenosha v. C&S Mgmt., Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999); see also McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 137, 121 N.W.2d 545 (1963) (a jury trial on issue of obscenity under the statute).
State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.
Majority op., ¶ 84.
It is also unclear what it means to have a lawful purpose. The majority opinion explains that "carrying a concealed weapon for an unlawful purpose means carrying a concealed weapon in furtherance of the commission of a crime. Majority op., ¶ 77. What if there are two purposes for a person to conceal his weapon, one criminal and the other "for security"? What if the purpose is lawful but some other fact makes the concealment unlawful, such as the fact that the weapon carrier is an ex-felon?
Majority op., ¶ 76.
The majority opinion never addresses whether the State's interests in enforcing the statute are established conclusively by this opinion or will vary from case to case.
Justice Bablitch's concurrence analogizes the circuit court's role under the majority opinion's framework to the circuit court's role in determining constitutional facts under a Fourth Amendment case. Justice Bablitch's concurrence, ¶ 96. In the Fourth Amendment context, however, as the concurrence admits, all questions regarding reasonableness are for the court.
State v. Peters, 2003 WI 88, ¶ 23, 263 Wis. 2d 475, 665 N.W.2d 171.
Majority op., ¶ 67. In the same vein, the majority recites the facts of the case as follows: "As a result of these general and specific concerns for the safety of himself, his family, and his customers, and for the security of his property, [the defendant] kept a handgun under the store's front counter next to the cash register during store hours." Majority op., ¶ 9.
Majority op., ¶ 68 (emphasis added).
Majority op., ¶ 85.
Majority op., ¶ 89.
Cole, 264 Wis. 2d 520, ¶ 39.
Cole, 264 Wis. 2d 520, ¶ 64 (Prosser, J., concurring).
Cole, 264 Wis. 2d 520, ¶ 44 (citing Jeffrey Monks, The End of Gun Control or Protection Against Tyranny ?: The Impact of the New Wisconsin Constitutional Right To Bear Arms on State Gun Control Laws, 2001 Wis. L. Rev. 249, 284).
Majority op., ¶ 68. Despite its attempts to limit the present holding to the defendant's precise circumstances, the language in the majority opinion is much broader. For example, the majority opinion concludes, "[I]f the State prosecutes a storeowner for having a concealed weapon within easy reach, it is strongly discouraging the use of firearms for security and is practically nullifying the right to do so." Majority op., ¶ 74. This language is hardly limited to the facts of this case.
The two questions the majority opinion establishes for determining whether a constitutional defense is available are broad sweeping and potentially apply to countless individuals under any number of circumstances.
For example, an owner of a privately operated business caught carrying a concealed weapon while walking to deposit the store's earnings in a bank can certainly argue that he is exercising his right to keep and bear arms under circumstances in which the need to exercise the right is substantial and that concealment, while walking to and upon entering the bank, is the only reasonable means for exercising the right to bear arms under the circumstances. So too can a store manager in charge for an absentee owner argue that she is exercising her right to keep and bear arms under circumstances in which the need to exercise the right is substantial and that concealment is the only reasonable means for exercising the right. Indeed, what is to stop any person from claiming this right in his or her workplace?
Similarly, anyone who must walk home from a bus stop every night after work through a high crime neighborhood can surely argue that his or her need to exercise the right to bear arms is high, concealment is necessary, and that his or her interests in self-protection substantially outweigh the State's interest in regulating concealed weapons.
Majority op., ¶ 85.