Silencers are not “arms” for the purposes of the 2nd amendment. The prohibition on possession of a silencer under s. 941.298 does not impose a burden on conduct falling within the scope of the 2nd amendment's guarantee and therefore is not unconstitutional. State v. Barrett, 2020 WI App 13
, 391 Wis. 2d 283
, 941 N.W.2d 866
The most natural reading of “keep arms" in the 2nd amendment is to have weapons. The natural meaning of “bear arms" is to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Putting all textual elements together, the 2nd amendment guarantees the individual right to possess and carry weapons in case of confrontation. However, like most rights, the right secured by the 2nd amendment is not unlimited. District of Columbia v. Heller, 554 U.S. 570
, 171 L. Ed. 2d 637
, 128 S. Ct. 2783
The 2nd amendment right to bear arms,
is fully applicable to the states. The due process clause of the 14th amendment incorporates the 2nd amendment right recognized in Heller
. However, incorporation does not imperil every law regulating firearms. McDonald v. Chicago, 561 U.S. 742
, 130 S. Ct. 3020
, 177 L. Ed. 2d 894
The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court. Ciocchetti. 102 MLR 309 (2018).
Out of the Home and in Plain Sight: Our Evolving Second Amendment and Open Carry in Wisconsin. Duroni. 102 MLR 1305 (2019).
Right to fish, hunt, trap, and take game.
26. [As created April 2003
] The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003
It is hereby ordained and declared that the state of Wisconsin doth consent and accept of the boundaries prescribed in the act of congress entitled “An act to enable the people of Wisconsin territory to form a constitution and state government, and for the admission of such state into the Union," approved August sixth, one thousand eight hundred and forty-six, to wit: Beginning at the northeast corner of the state of Illinois — that is to say, at a point in the center of Lake Michigan where the line of forty-two degrees and thirty minutes of north latitude crosses the same; thence running with the boundary line of the state of Michigan, through Lake Michigan, Green Bay, to the mouth of the Menominee river; thence up the channel of the said river to the Brule river; thence up said last-mentioned river to Lake Brule; thence along the southern shore of Lake Brule in a direct line to the center of the channel between Middle and South Islands, in the Lake of the Desert; thence in a direct line to the head waters of the Montreal river, as marked upon the survey made by Captain Cramm; thence down the main channel of the Montreal river to the middle of Lake Superior; thence through the center of Lake Superior to the mouth of the St. Louis river; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet's map; thence due south to the main branch of the river St. Croix; thence down the main channel of said river to the Mississippi; thence down the center of the main channel of that river to the northwest corner of the state of Illinois; thence due east with the northern boundary of the state of Illinois to the place of beginning, as established by “An act to enable the people of the Illinois territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states," approved April 18th, 1818.
The Mississippi River is an inland water of Wisconsin and the boat toilet law may be enforced on the entire width of the Mississippi bordering Minnesota and up to the center of the main channel bordering Iowa. 61 Atty. Gen. 167.
Enabling act accepted.
[As amended April 1951
] The propositions contained in the act of congress are hereby accepted, ratified and confirmed, and shall remain irrevocable without the consent of the United States; and it is hereby ordained that this state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to bona fide purchasers thereof; and in no case shall nonresident proprietors be taxed higher than residents. Provided, that nothing in this constitution, or in the act of congress aforesaid, shall in any manner prejudice or affect the right of the state of Wisconsin to 500,000 acres of land granted to said state, and to be hereafter selected and located by and under the act of congress entitled “An act to appropriate the proceeds of the sales of the public lands, and grant pre-emption rights," approved September fourth, one thousand eight hundred and forty-one. [1949 J.R. 11, 1951 J.R. 7, vote April 1951
[Amended Nov. 1882, Nov. 1908, and Nov. 1934; repealed April 1986; as created April 1986
] Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district. [1881 J.R. 26 A, 1882 J.R. 5, 1882 c. 272, vote Nov. 1882; 1905 J.R. 15, 1907 J.R. 25, 1907 c. 661, vote Nov. 1908; 1931 J.R. 91, 1933 J.R. 76, vote Nov. 1934; 1983 J.R. 30, 1985 J.R. 14, vote April 1986
It is clearly within the legislature's province to require any person offering to vote to furnish such proof as it deems requisite that he or she is a qualified elector. Requiring a potential voter to identify himself or herself as a qualified elector through acceptable photo identification does not impose an elector qualification in addition to those set out in this section. League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97
, 357 Wis. 2d 360
, 851 N.W.2d 302
The legislature can amend the current election statutes, without referendum, so as to make the statutes conform with the 26th amendment
to the U.S. Constitution. 61 Atty. Gen. 89.
A proposal to amend a statute to allow nonresident property owners to vote on metropolitan sewerage district bonds, in addition to electors, probably would require the proposal to be submitted to a vote of the electorate under sec. 1. 63 Atty. Gen. 391.
Constitutional law: residency requirements. 53 MLR 439.
[Repealed April 1986; as created April 1986
] Laws may be enacted:
Providing for registration of electors.
Providing for absentee voting.
Excluding from the right of suffrage persons:
Convicted of a felony, unless restored to civil rights.
) Adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.
Subject to ratification by the people at a general election, extending the right of suffrage to additional classes. [1983 J.R. 30, 1985 J.R. 14, vote April 1986
The requirement to present acceptable photo identification comes within the legislature's authority to enact laws providing for the registration of electors under this section because acceptable photo identification is the mode by which election officials verify that a potential voter is the elector listed on the registration list. League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97
, 357 Wis. 2d 360
, 851 N.W.2d 302
Even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious. An Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government did not violate constitutional standards. Crawford v. Marion County Election Board, 553 U.S. 181
, 128 S. Ct. 1610
, 170 L. Ed. 2d 574
3. [Repealed April 1986; as created April 1986
] All votes shall be by secret ballot. [1983 J.R. 30, 1985 J.R. 14, vote April 1986
4. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.
Military stationing does not confer residence. Section
5. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.
Exclusion from suffrage. Section
6. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.
1. The legislative power shall be vested in a senate and assembly.
An act validating existing sewerage districts previously held to be unconstitutionally organized is within the power of the legislature. Madison Metropolitan Sewerage Dist. v. Stein, 47 Wis. 2d 349
, 177 N.W.2d 131
The power given vocational district boards to levy taxes does not violate this section. The manner of appointing board members is constitutional. West Milwaukee v. Area Bd. Vocational, T. & A. Ed., 51 Wis. 2d 356
, 187 N.W.2d 387
One legislature cannot dictate action by a future legislature or a future legislative committee. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391
, 208 N.W.2d 780
The legislature may constitutionally prescribe a criminal penalty for violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705
, 247 N.W.2d 714
Provisions of s. 144.07 (1m) [now s. 281.34 (1m)], that void a DNR sewerage connection order if electors in the affected town area reject annexation to the city ordered to extend sewerage service, represents a valid legislative balancing and accommodation of 2 statewide concerns: urban development and pollution control. City of Beloit v. Kallas, 76 Wis. 2d 61
, 250 N.W.2d 342
Mediation - arbitration under s. 111.70 (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. District Council 48, 109 Wis. 2d 14
, 325 N.W.2d 350
(Ct. App. 1982).
The court will invalidate legislation only for constitutional violations. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358
, 338 N.W.2d 684
Reference in a statute to a general federal law, as amended, necessarily references the current federal law where the act named in the statute is repealed and the law rewritten in another act. Because reference is stated as part of a contingency, it does not constitute unlawful delegation of legislative authority to U.S. Congress. Dane County Hospital & Home v. LIRC, 125 Wis. 2d 308
, 371 N.W.2d 815
(Ct. App. 1985).
The supreme court declined to review the validity of the procedure used to give notice of a joint legislative committee on conference alleged to violate the state open meetings law. The court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments and will not intermeddle in what it views, in the absence of constitutional directives to the contrary, to be purely legislative concerns. Ozanne v. Fitzgerald, 2011 WI 43
, 334 Wis. 2d 70
, 798 N.W.2d 436
When administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute. Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature. It follows that the legislature may place limitations and conditions on an agency's exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules. Koschkee v. Taylor, 2019 WI 76
, 387 Wis. 2d 552
, 929 N.W.2d 600
The legislature may enact the laws the executive is duty-bound to execute, but it may not control his knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there was no set of facts pursuant to which 2017 Wis. Act 369's restrictions on guidance documents would not impermissibly interfere with the executive's exercise of his core constitutional power, they were in that respect facially unconstitutional. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67
, 393 Wis. 2d 38
, 946 N.W.2d 35
Proposed amendments to bills creating variable obscenity laws that would exempt motion picture films shown at theaters that comply with the film ratings of the motion picture association of America constitute an unconstitutional delegation of legislative power. 58 Atty. Gen. 36.
The one man-one vote principle is inapplicable to legislative committees since that principle applies only to the exercise of legislative powers and such powers cannot constitutionally be delegated to these committees. There has been no such unconstitutional delegation as to the joint committee on finance, the board on government operations, the joint legislative council or the committee to visit state properties. Legislative oversight of administrative rules discussed. 63 Atty. Gen. 173.
Legislature, how constituted. Section
The number of the members of the assembly shall never be less than fifty-four nor more than one hundred. The senate shall consist of a number not more than one-third nor less than one-fourth of the number of the members of the assembly.
[As amended Nov. 1910, Nov. 1962, and Nov. 1982
] At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants. [1907 J.R. 30, 1909 J.R. 55, 1909 c. 478, vote Nov. 1910; 1959 J.R. 30, 1961 J.R. 32, vote Nov. 1962; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982
The phrase “according to the number of inhabitants" in this section was intended to secure the preexisting right to proportionate representation and apportionment as nearly equal as practicable among the several counties for the election of members of the legislature. This section gives the legislature the duty to enact a redistricting plan after each federal census to prevent one person's vote in an underpopulated district from having more weight than another's in an overly populated district. Johnson v. Wisconsin Elections Commission, 2021 WI 87
, 399 Wis. 2d 623
, 967 N.W.2d 469
Unlike the Wisconsin Constitution's Declaration of Rights, article IV, sections 3
, and 5
, of the Wisconsin Constitution express a series of discrete requirements governing redistricting. These are the only Wisconsin constitutional limits the supreme court has ever recognized on the legislature's discretion to redistrict. Johnson v. Wisconsin Elections Commission, 2021 WI 87
, 399 Wis. 2d 623
, 967 N.W.2d 469
The Wisconsin Constitution requires the legislature—a political body—to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body. Nothing in the constitution empowers the supreme court to second-guess those policy choices, and nothing in the constitution vests the court with the power of the legislature to enact new maps. Johnson v. Wisconsin Elections Commission, 2021 WI 87
, 399 Wis. 2d 623
, 967 N.W.2d 469
In this state's constitutional order, redistricting remains the legislature's duty. Any remedy the court may impose would be in effect only until such time as the legislature and governor have enacted a valid legislative apportionment plan. Johnson v. Wisconsin Elections Commission, 2021 WI 87
, 399 Wis. 2d 623
, 967 N.W.2d 469
Institutional populations, as well as other populations that may include persons disenfranchised for some reason, may not be disregarded for redistricting purposes. 70 Atty. Gen. 80.
When drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them: preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. When the maximum population deviation between the largest and smallest district is less than ten percent, a state or local legislative map presumptively complies with the one-person, one-vote rule. The equal protection clause does not mandate use of the voter-eligible population. It is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts. Evenwel v. Abbott, 578 U.S. 54
, 136 S. Ct. 1120
, 194 L. Ed. 2d 291
Those attacking a state-approved plan must show that it is more probable than not that a population deviation from absolute equality of districts of less than 10 percent reflects the predominance of illegitimate reapportionment factors rather than the legitimate considerations. Harris v. Arizona Independent Redistricting Commission, 578 U.S. 253
, 136 S. Ct. 1301
, 194 L. Ed. 2d 497
Representatives to the assembly, how chosen. Section
[As amended Nov. 1881 and Nov. 1982
] The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November in even-numbered years, by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982
Under this section, assembly districts must be bounded by county, precinct, town, or ward lines. Given federal one person, one vote requirements, bounding every assembly district by county, precinct, town, and ward lines may not be possible. However, this section must be given full effect to the extent it does not conflict with federal law. The court is particularly skeptical of town and ward splits because the smaller the political subdivision, the easier it may be to preserve its boundaries. Johnson v. Wisconsin Elections Commission, 2022 WI 19
, 401 Wis. 2d 198
, 972 N.W.2d 559
U.S. Supreme Court decisions requiring almost absolute equality of population among electoral districts render nugatory the state court's construction of art. IV, sec. 4, as prohibiting assembly districts from dividing counties except where a county is entitled to more than one assembly member. 58 Atty. Gen. 88.
Senators, how chosen.
[As amended Nov. 1881 and Nov. 1982
] The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen; and no assembly district shall be divided in the formation of a senate district. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts for the term of 4 years. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982
Qualifications of legislators. Section
No person shall be eligible to the legislature who shall not have resided one year within the state, and be a qualified elector in the district which he may be chosen to represent.
A candidate for election to Congress need not be a resident of the district at the time he or she files nomination papers and executes the declaration of intent to accept the office if elected. A candidate for congress must be an inhabitant of the state at the time of election. 61 Atty. Gen. 155.
Organization of legislature; quorum; compulsory attendance. Section
Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.
Rules; contempts; expulsion. Section
Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two-thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause.
Courts have no jurisdiction to review legislative rules of proceeding, which are those rules having “to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members." Milwaukee Journal Sentinel v. DOA, 2009 WI 79
, 319 Wis. 2d 439
, 768 N.W.2d 700
The legislature cannot sentence a person to confinement for contempt without notice and without giving an opportunity to respond to the charge. Groppi v. Leslie, 404 U.S. 496
[As amended April 1979 and Nov. 2014
Each house shall choose its presiding officers from its own members.
The legislature shall provide by law for the establishment of a department of transportation and a transportation fund. [1977 J.R. 32, 1979 J.R. 3, vote April 1979; 2011 J.R. 4, 2013 J.R. 1, vote Nov. 2014
Journals; open doors; adjournments. Section
Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open except when the public welfare shall require secrecy. Neither house shall, without consent of the other, adjourn for more than three days.
Meeting of legislature. Section
As amended Nov. 1881 and April 1968
] The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1965 J.R. 57, 1967 J.R. 48, vote April 1968
How the legislature meets, when it meets, and what descriptive titles the legislature assigns to those meetings or their operating procedures constitute parts of the legislative process with which the judicial branch has no jurisdiction or right to interfere. League of Women Voters v. Evers, 2019 WI 75
, 387 Wis. 2d 511
, 929 N.W.2d 209
Ineligibility of legislators to office. Section
No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.
A legislator may be elected to a constitutional or statutory state elective office even though the emoluments of the office were raised during his or her legislative term. If so elected, the legislator is limited by 13.04 (1) to the emoluments of the office prior to the increase. A legislator is not eligible, however, for appointment to an office created during his or her term or to an office the emoluments of which appointive office were raised during his or her legislative term. 63 Atty. Gen. 127.
Ineligibility of federal officers. Section
[As amended April 1966
] No person being a member of congress, or holding any military or civil office under the United States, shall be eligible to a seat in the legislature; and if any person shall, after his election as a member of the legislature, be elected to congress, or be appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat. This restriction shall not prohibit a legislator from accepting short periods of active duty as a member of the reserve or from serving in the armed forces during any emergency declared by the executive. [1963 J.R. 34, 1965 J.R. 14, vote April 1966
The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature.
Exemption from arrest and civil process. Section
Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.
The privilege under this section can be invoked by a legislator only if the legislator is subpoenaed, not if an aide is subpoenaed. State v. Beno, 116 Wis. 2d 122
, 341 N.W.2d 668
The members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included article IV, section 15 in the Wisconsin Constitution. The phrase “treason, felony and breach of the peace" in that section was intended to mean all crimes. State v. Burke, 2002 WI App 291
, 258 Wis. 2d 832
, 653 N.W.2d 922
Privilege in debate.
No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.
The sphere of legislative action protected under this section is broader than floor deliberations. A legislator may invoke the privilege under this section to immunize an aide from a subpoena to testify as to an investigation conducted by the aide at the legislator's request. State v. Beno, 116 Wis. 2d 122
, 341 N.W.2d 668
Not all activities of a legislator are protected by this section insofar as that activity is not an integral part of the deliberative and communicative processes. While legislative acts are protected by the speech and debate clause, political acts are not. Hiring, directing, and managing legislative caucus staff to oversee political campaigns is not protected. By its very nature, engaging in campaign activity is political. State v. Chvala, 2004 WI App 53
, 271 Wis. 2d 115
, 678 N.W.2d 880
This section provides only immunity from prosecution based on use of communications, and not secrecy for communications of government officials and employees. Legislative Technical Services Bureau Custodian of Records v. State, 2004 WI 65
, 272 Wis. 2d 208
, 680 N.W.2d 792
In a federal criminal prosecution against a state legislator there is no legislative privilege barring introduction of evidence of the legislator's legislative acts. United States v. Gillock, 445 U.S. 360