                                                                2018 WI 29

                  SUPREME COURT                 OF    WISCONSIN
CASE NO.:                 2016AP173-CR
COMPLETE TITLE:           State of Wisconsin,
                                    Plaintiff-Respondent,
                               v.
                          Brian Grandberry,
                                    Defendant-Appellant-Petitioner.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 372 Wis. 2d 834, 890 N.W.2d 49
                                         (2016 – Unpublished)

OPINION FILED:            April 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            September 20, 2017

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Milwaukee
   JUDGE:                 Janet C. Protasiewicz

JUSTICES:
   CONCURRED:             KELLY, J. concurs (opinion filed).
   DISSENTED:             R.G. BRADLEY, J. dissents (opinion filed).
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
and an oral argument by Leon W. Todd, assistant state public
defender.


       For the plaintiff-respondent, there was a brief and oral
argument by Jeffrey J. Kassel, assistant attorney general, with
whom on the brief was Brad D. Schimel, attorney general.


       Amici        curiae    briefs   were   filed   on   behalf   of   Wisconsin
Carry,       Inc.    by    John   R.   Monroe   and   John   Monroe   Law,   P.C.,
Roswell, Georgia.
                                                                              2018 WI 29
                                                                       NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2016AP173-CR
(L.C. No.    2014CM4581)

STATE OF WISCONSIN                                :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                        FILED
      v.
                                                                       APR 10, 2018
Brian Grandberry,
                                                                         Sheila T. Reiff
                                                                      Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                      Affirmed.



      ¶1      MICHAEL      J.   GABLEMAN,    J.   This      is    a     review      of    an

unpublished decision of the court of appeals, which affirmed the

Milwaukee County Circuit Court's1 judgment of conviction against

Brian      Grandberry.          State   v.   Grandberry,         No.     2016AP173-CR,

unpublished slip op., ¶9 (Wis. Ct. App. Nov. 29, 2016).

      ¶2      Grandberry was convicted of carrying a concealed and

dangerous weapon contrary to Wis. Stat. § 941.23(2) (2013-14)2

      1
          The Honorable Janet C. Protasiewicz presiding.
      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
                                                                No.     2016AP173-CR



(the "Concealed Carry Statute"), resulting from an incident in

which police discovered a handgun in the glove compartment of

his motor vehicle during a traffic stop.                    Grandberry appealed

his conviction, arguing that his conduct was in compliance with

Wis. Stat. § 167.31(2)(b), which regulates the transportation of

firearms in motor vehicles (the "Safe Transport Statute"),3                      and

that his compliance with the Safe Transport Statute precluded

his conviction under the Concealed Carry Statute.                     The court of

appeals    affirmed,      holding    that        compliance     with    the     Safe

Transport Statute does not preclude conviction for a violation

of the Concealed Carry Statute.

      ¶3    Grandberry raises two issues.               First, he argues that

there is insufficient evidence to support his conviction.                         He

reaches    this   conclusion    by   asserting       that   a   conflict      exists

between the two statutes that can be resolved only by holding

that persons in compliance with the Safe Transport Statute do

not   violate     the   first   element     of    the   crime    of    carrying    a

concealed and dangerous weapon contrary to the Concealed Carry
Statute.     We hold that the Concealed Carry Statute and Safe

Transport Statute are not in conflict because Grandberry could

have complied with both by either obtaining a license to carry a

      3
       Although we have previously referred to Wis. Stat.
§ 167.31(2)(b) as the "vehicle statute," Wisconsin Carry, Inc.
v. City of Madison, 2017 WI 19, ¶12, 373 Wis. 2d 543, 892
N.W.2d 233, we adopt the term used by the parties and court of
appeals, "Safe Transport Statute," because it hews more closely
to the actual text of the statute, which is entitled "Safe use
and transportation of firearms and bows."


                                       2
                                                                        No.    2016AP173-CR



concealed weapon pursuant to Wis. Stat. § 175.60 (hereinafter

"concealed carry license" or "license") or by placing his loaded

handgun out of reach.

      ¶4     Second,      Grandberry       argues    that    the    Concealed             Carry

Statute is unconstitutionally vague because a person of ordinary

intelligence would reasonably believe that complying with the

Safe Transport Statute is sufficient to lawfully place a loaded,

uncased handgun in the glove compartment of a motor vehicle.                                We

hold that the Concealed Carry Statute is not unconstitutionally

vague because a person of ordinary intelligence has sufficient

notice      that   carrying       a   concealed      and     dangerous         weapon       is

unlawful      unless      one    of   the       enumerated       exceptions          in    the

Concealed Carry Statute applies.

      ¶5     Accordingly, we affirm.

                   I.    FACTUAL AND PROCEDURAL BACKGROUND

      ¶6     Grandberry was charged with one count of carrying a

concealed      and      dangerous      weapon,       contrary       to        Wis.        Stat.

§ 941.23(2).       The charge arose out of a traffic stop in the City
of Milwaukee.        At the bench trial held on the matter, Grandberry

and   the    State      stipulated    to    the    truth    of    the    facts       in     the

criminal complaint.             Accordingly, no testimony was taken.                        The

complaint states, in relevant part:

      On November 9, 2014, [two] City of Milwaukee Police
      Officer[s] . . . conducted a [traffic] stop of a
      vehicle . . . driven by the defendant [on] N. 60th St.
      Upon stopping the vehicle, the defendant identified
      himself by name but stated he did not have his wallet
      [or] identification.    [One officer] then asked the
      defendant if he had any firearms in the car[,] and the

                                            3
                                                          No.    2016AP173-CR


    defendant stated he did[,] in the glove compartment.
    [The officer] then asked the defendant if he had a
    valid [concealed carry license] and the defendant
    stated he did, but did not have it with him. Officers
    then conducted a search of the [license] database and
    discovered that the defendant did not, in fact, have a
    valid [concealed carry license].    Officers then went
    to the glove compartment and discovered a loaded, Hi-
    Point, .45 [caliber], semi-automatic pistol.

    Upon arresting the defendant and conveying him to the
    station, the defendant made unprovoked statements to
    the effect of[:] "The gun in the glove compartment is
    mine, I took the [concealed carry license] class but
    never actually got a [license]."    Additionally, the
    defendant is not a peace officer.
Based upon these facts, the circuit court entered a judgment of

conviction    against   Grandberry.       Grandberry   then   appealed   his

conviction.

    ¶7   The court of appeals affirmed, holding that the Safe

Transport Statute did not apply to Grandberry.4                 Grandberry,

unpublished slip op., ¶9.      The court of appeals then applied the

    4
       The court of appeals concluded that the Safe Transport
Statute "only applies [sic] to those who have passed the
rigorous conditions for obtaining a [concealed carry license]"
because the Safe Transport Statute borrows the definition of
"Handgun" from Wis. Stat. § 175.60, which regulates concealed
carry licenses.      State v. Grandberry, No. 2016AP173-CR,
unpublished slip op., ¶9 (Wis. Ct. App. Nov. 29, 2016).

     We pause briefly to expressly note our disagreement with
this analysis, as it lacks any support in the language of either
of the relevant statutes. Furthermore, merely defining a term by
reference to another statute does not expand or limit the scope
of the original statute. The United States Court of Appeals for
the D.C. Circuit aptly stated this concept when it said "[w]hen
one     statute . . . incorporates     a      definition    from
another . . . it imports only the specified definition and not
the broader purpose of the statute from which it comes." Owens
v. Republic of Sudan, 864 F.3d 751, 776 (D.C. Cir. 2017).


                                      4
                                                                      No.     2016AP173-CR



stipulated facts to the elements of Wis. Stat. § 941.23(2), and

held that the State proved all elements beyond a reasonable

doubt.     Id., ¶11.

      ¶8     As to the second issue, the court of appeals held that

the   Concealed      Carry    Statute       is   not     unconstitutionally        vague

because     Grandberry       had    actual       knowledge     that     he     needed   a

concealed carry license to lawfully carry a concealed handgun in

the   glove      compartment       of     his    motor    vehicle.           Grandberry,

unpublished slip op., ¶19.

      ¶9     Grandberry petitioned this court for review, which we

granted on March 13, 2017.

                             II.    STANDARD OF REVIEW

      ¶10    Grandberry challenges the sufficiency of the State's

evidence    to     support    his    conviction.          "We . . . independently

review whether the evidence was sufficient to sustain a jury

verdict, but in so doing, we view the evidence most favorably to

sustaining the conviction."                State v. Hanson, 2012 WI 4, ¶15,

338 Wis. 2d 243, 808 N.W.2d 390.
      ¶11    The       proper           interpretation         of       Wis.       Stat.

§§ 167.31(2)(b) and 941.23(2) is foundational to Grandberry's

sufficiency-of-the-evidence               challenge;      we   review        issues     of

statutory interpretation de novo.                 Id., ¶15.         "In construing or

interpreting a statute the court is not at liberty to disregard

the plain, clear words of the statute."                    State ex rel. Kalal v.

Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633,

681 N.W.2d 110 (citations omitted).                    We assume that legislative
intent is expressed in the statutory language.                         Id., ¶43.        We
                                            5
                                                                            No.      2016AP173-CR



interpret statutory language in context, "not in isolation but

as part of a whole; in relation to the language of surrounding

or closely-related statutes; and reasonably, to avoid absurd or

unreasonable results. Statutory language is read where possible

to   give     reasonable      effect      to     every      word,    in     order     to     avoid

surplusage."         Id., ¶46 (citations omitted).

       ¶12     This case also requires us to determine whether Wis.

Stat.        § 941.23(2)       is         unconstitutionally                vague.             The

constitutional validity of a statute presents a question of law

that this court reviews de novo.                   State v. Pittman, 174 Wis. 2d

255,    276,    496     N.W.2d      74    (1993).           "It     falls       to   the     party

challenging the constitutionality of a statute to prove that the

statute is unconstitutional beyond a reasonable doubt."                                      State

v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665 N.W.2d 328.                                   The

court indulges "every presumption to sustain the law . . . and

if       any           doubt             exists             about           a         statute's

constitutionality . . . [the court] must resolve that doubt in

favor of constitutionality."                Id.
                                    III.       ANALYSIS

       ¶13     We    begin    our    analysis          by    first     setting         out    the

relevant portions of both the Concealed Carry and Safe Transport

Statutes.       We then address Grandberry's argument that a person

in   compliance        with   the    Safe      Transport          Statute       cannot,      as   a

matter of law, violate the first element of the Concealed Carry

Statute,       which     he    frames       as     a     sufficiency-of-the-evidence

challenge.          Finally, we address Grandberry's argument that the
Concealed Carry Statute is unconstitutionally vague.
                                               6
                                                                 No.     2016AP173-CR



                           A.   Statutory Background

                     1.    The Concealed Carry Statute

    ¶14     The Concealed Carry Statute, with certain exceptions,

criminalizes the carrying of concealed and dangerous weapons.

The Concealed Carry Statute states, in relevant part:

    (2) Any person, other than one of the following, who
    carries a concealed and dangerous weapon is guilty of
    a class A misdemeanor:

            (a)    A peace officer . . .
            (b)    A qualified out-of-state law enforcement
                   officer . . .
            (c)    A former officer . . .
            (d)    A      licensee,       as    defined     in
                   s. 175.60(1)(d)[5] . . .
            (e)    An individual who carries a concealed and
                   dangerous   weapon,    as  defined   in  s.
                   175.60(1)(j),[6] in his or her own dwelling
                   or place of business . . .
Wis. Stat. § 941.23(2).

    ¶15     We    read    the   Concealed    Carry   Statute     as    having    two

parts.     First, we refer to the part that creates the crime of

carrying    a    concealed      and   dangerous   weapon    as     the     "general

prohibition:"       "Any     person . . . who     carries   a     concealed      and




    5
       "Licensee" is defined as "an individual holding a valid
license   to   carry  a   concealed  weapon."      Wis.  Stat.
§ 175.60(1)(d).
    6
       "Weapon"  is   defined  as   "a  handgun,   an   electric
weapon, . . . or a billy club." Wis. Stat. § 175.60(1)(j).


                                         7
                                                               No.     2016AP173-CR



dangerous weapon[7] is guilty of a Class A misdemeanor."                   See id.

In order to convict a defendant of carrying a concealed and

dangerous weapon contrary to Wis. Stat. § 941.23(2), the State

must prove three elements:

      1.     The   defendant   carried  a   dangerous                weapon.
             "Carried" means went armed with.

      2.     The defendant was aware of the presence of the
             weapon.

      3.     The weapon was concealed.
Wis JI——Criminal 1335 (2016).

      ¶16    Almost 90 years ago, we first used the term "within

reach" to describe when a person "goes armed" with a concealed

and   dangerous      weapon   for    purposes      of   the   Concealed      Carry

Statute.         Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76

(1930) ("[T]he driver of an automobile goes armed, within the

meaning     of    [the   Concealed   Carry      Statute],     when    he   has    a

dangerous weapon within reach on a shelf in back of his seat.").

Nearly 50 years later, the definition was subsequently clarified

so that "'going armed' [with a concealed and dangerous weapon]

meant that the weapon was on the defendant's person or that the

weapon [was] within the defendant's reach . . . ."                      State v.

Asfoor,     75    Wis. 2d 411,   433-34,     249   N.W.2d 529    (1977).         We

articulated the current definition of "went armed with" in State

      7
       For purposes of the general prohibition, a "dangerous
weapon" includes "any firearm, whether loaded or unloaded."
Wis. Stat. § 939.22(10).    We note that, for purposes of the
exception   enumerated   in  Wis.   Stat.   § 941.23(2)(e),  the
legislature provided a narrower definition. See supra note 6.


                                       8
                                                                               No.       2016AP173-CR



v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986) (emphasis

added)    ("The       elements       of     the    crime         of   carrying       a    concealed

weapon are:           (1) the defendant had a dangerous weapon on his

person or within his reach . . . ."), overruled on other grounds

by   State      v.        Dearborn,       2010        WI    84,       327    Wis. 2d 252,          786

N.W.2d 97.

     ¶17       The        statute's       second       part       sets      forth        enumerated

exceptions           to     the       general          prohibition.                  Wis.        Stat.

§ 941.23(2)(a)-(e).                These exceptions are affirmative defenses

to a charge of unlawfully carrying a concealed and dangerous

weapon.         State        v.     Williamson,             58    Wis. 2d 514,            524,     206

N.W.2d 613      (1973)           (holding    that          defendants       must     raise       their

status    as    a    peace        officer    as       an    affirmative       defense).            The

enumerated exceptions were expanded in 2011.                                2011 Wis. Act. 35,

§§ 50-56.       Before the 2011 amendment, only peace officers could

lawfully carry a concealed and dangerous weapon.                                         Wis. Stat.

§ 941.23(2) (2009-10).

                            2.    The Safe Transport Statute
     ¶18       The Safe Transport Statute states in relevant part:

     (b) [N]o person may place, possess, or transport a
     firearm[8] . . . in or on a vehicle, unless one of the
     following applies:

               1. The firearm is unloaded or is a handgun.[9]




     8
       "Firearm" is defined as "a weapon that acts by force of
gunpowder." Wis. Stat. § 167.31(1)(c).


                                                  9
                                                               No.    2016AP173-CR



Wis. Stat. § 167.31(2)(b)1.10            This statute was amended in the

same       act    that   created   Wisconsin's     concealed    carry    license

regime.          2011 Wis. Act. 35, § 31.     Prior to the 2011 amendment,

the    Safe       Transport   Statute   required   all   firearms     (including

handguns) that were placed within a motor vehicle to be unloaded

and encased.          Wis. Stat. § 167.31(2)(b) (2009-10).           The current

version of the statute does not include a requirement that any

firearm be encased. § 167.31(2)(b).              Further, though the statute

generally requires firearms be unloaded, it expressly excepts

handguns from this requirement.               § 167.31(2)(b)1.        Therefore,

under the terms of the Safe Transport Statute, handguns in a

motor vehicle may be both loaded and uncased.11             Id.

B.     Grandberry's Conviction is Supported by Sufficient Evidence.

                    1.   The nature of Grandberry's argument




       9
       "Handgun"  is   defined as   "any  weapon   designed   or
redesigned, or made or remade, and intended to be fired while
held in one hand and to use the energy of an explosive to expel
a projectile through a smooth or rifled bore."       Wis. Stat.
§ 167.31(1)(cm) (citing Wis. Stat. § 175.60(1)(bm)).     Machine
guns, short-barreled rifles, and short-barreled shotguns are
specifically excepted from the definition of "handgun."     Wis.
Stat. § 175.60(1)(bm).
       10
       The Safe Transport Statute does not apply "to a firearm
that is placed or possessed on a vehicle that is stationary."
Wis. Stat. § 167.31(4)(ag).
       11
       The State does not contest that Grandberry complied with
the Safe Transport Statute, nor do we find any reason to
conclude he did not.     Thus, we assume without deciding that
Grandberry did comply with its terms.


                                         10
                                                                             No.     2016AP173-CR



    ¶19     Grandberry frames his first issue as a sufficiency-of-

the-evidence challenge; however, Grandberry does not raise the

challenge    in    the      traditional           sense      such    that    he     asks    us    to

review    the     evidence       and    apply           it   to     the    elements        of    the

Concealed Carry Statute in order to determine whether there is

"sufficient evidence" to support his conviction.                                   See State v.

Smith,    2012    WI     91,    ¶41,        342    Wis.      2d     710,    817    N.W.2d       410.

Rather, Grandberry uses his sufficiency of the evidence argument

as the means by which he argues that the relevant statutes are

in conflict.

    ¶20     Grandberry's          argument             consists     of     three    components:

two premises and a conclusion.                         His first premise is that the

two statutes are in conflict because the same conduct——placing a

loaded handgun in a motor vehicle——can comply with the Safe

Transport Statute yet violate the Concealed Carry Statute.                                       His

second    premise      is      that    this       purported         conflict       between       the

statutes must be resolved by a holding from this court that a

person in compliance with the Safe Transport Statute does not
"carry"     for     purposes           of     the        Concealed         Carry      Statute.12
    12
       Grandberry refers to his second premise as a "safe
harbor."   His use of this phrase is an improper inversion of
that term of art, as a safe harbor is defined as "a provision
(as in a statute or regulation) that affords protection from
liability or penalty."    Black's Law Dictionary 1536 (10th ed.
2014). No statute contains a provision affording the protection
Grandberry seeks and we decline to either invent one or to
contort our reading of the plain language of the statutes to
suit Grandberry's purposes.     State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 ("If the meaning of the statute is plain, we
ordinarily stop the inquiry.").
                                                    (continued)
                                                  11
                                                                   No.    2016AP173-CR



Grandberry's     conclusion       is    that     he    complied    with    the     Safe

Transport Statute, and so, as a matter of law, his conduct could

not   violate   the     first    element       ("carry")    of    the     offense    of

carrying    a   concealed       and    dangerous       weapon    contrary    to     the

Concealed Carry Statute.

 2.   The Safe Transport Statute and Concealed Carry Statute are
                         not in conflict.
      ¶21   Grandberry's first premise is false because the two

statutes are not in conflict.                In order for two statutes to be
in conflict, it must be impossible to comply with both.                             See

City News & Novelty, Inc. v. Waukesha, 170 Wis. 2d 14, 22, 487

N.W.2d 316 (Ct. App. 1992).                  The two statutes serve distinct

purposes:         the     Safe         Transport       Statute    regulates         the

transportation    of     firearms       in     motor   vehicles    to     ensure    the

transportation is done safely, see Wis. Stat. § 167.31 (entitled

"Safe use and transportation of firearms and bows."),13 while the


     Grandberry bases his "safe harbor" argument on a footnote
in a court of appeals decision in which the court clarified that
its holding, which concerned whether a firearm was concealed for
purposes of the Concealed Carry Statute, "in no way limits the
lawful    placement,   possession,   or    transportation    of[]
unloaded . . . and   encased[]  firearms . . . in   vehicles   as
permitted by [the Safe Transport Statute]." State v. Walls, 190
Wis. 2d 65, 69 n.2, 526 N.W.2d 765 (Ct. App. 1994) (emphasis in
original).   The "safe harbor" argument is relevant only if the
statutes are in conflict. Thus, we decline to further consider
the merits of Grandberry's reading of Walls because we conclude
the statutes are not in conflict.
      13
       "Although titles are not part of statutes, Wis. Stat.
§ 990.001(6), they may be helpful in interpretation." Aiello v.
Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996).


                                          12
                                                               No.       2016AP173-CR



Concealed    Carry   Statute   regulates        the   carrying      of    concealed

firearms to ensure the safety of the public, see State v. Walls,

190 Wis. 2d 65, 71, 526 Wis. 2d 765 (Ct. App. 1994) (quoting

Williams v. Commonwealth, 261 S.W.2d 807, 807-808 (Ky. 1953)

(governments historically prohibited the carrying of concealed

weapons "because persons becoming suddenly angered and having

such a weapon in their pocket[] would be likely to use it, which

in their sober moments they would not have done, and which could

not   have    been   done   had   not     the    weapon      been    upon     their

person.")).     When a person places a loaded handgun in a motor

vehicle, he can both transport a firearm in that motor vehicle

(an act governed by the terms of the Safe Transport Statute) and

carry a concealed and dangerous weapon (an act governed by the

Concealed Carry Statute).         Contrary to Grandberry's assertions,

compliance    with   both   statutes      is    not   only   possible,       it   is

required.

      ¶22    Grandberry argues that it is impossible to comply with

the Safe Transport Statute without violating the Concealed Carry
Statute.         Grandberry       asserts       that      "Wisconsin         courts

have . . . generally considered firearms located anywhere inside

the interior portion of a vehicle to be within a defendant's

reach and thus 'carried' for purposes of the [Concealed Carry

Statute]."     According to Grandberry, a person who transports a

loaded handgun in a motor vehicle that lacks a trunk separate

from the passenger area (e.g., a minivan, SUV, hatchback, or

station wagon) complies with the Safe Transport Statute yet is
always in violation of the Concealed Carry Statute.                  This is so,
                                     13
                                                                          No.    2016AP173-CR



he says, because the loaded handgun would always, as a matter of

law, be "within reach," and thus "carried" for purposes of the

Concealed Carry Statute.

     ¶23        This would be a compelling argument if it were true.

As it is, however, his assertion is wholly unsupported by any

statute, case law, or regulation.14

     ¶24        Grandberry,        perhaps    recognizing          that     no    Wisconsin

court has ever defined "within reach" as broadly as he does,

seeks     to    bolster      his   reading        of   the   statute      by     drawing   an

analogy        to   search    incident       to    arrest    law    under        the   Fourth

Amendment.          The Fourth Amendment permits warrantless searches

"within 'the area into which an arrestee might reach in order to

grab a weapon or evidentiary [item].'"                       New York v. Belton, 453

     14
       Grandberry cites four cases to support the proposition
that Wisconsin courts consider the entire passenger area "within
reach," as a matter of law, for purposes of the Concealed Carry
Statute.    In two of them, we merely considered whether a
reasonable finder of fact could conclude that the firearm was
"within reach" in the circumstances of each particular case.
State v. Fry, 131 Wis. 2d 153, 182, 388 N.W.2d 565 (1986)
(holding reasonable jury could find handgun in glove compartment
was within reach of driver), overruled on other grounds by State
v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97;
Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)
(concluding a handgun on a shelf behind the driver's seat is
within reach of the driver). The other two were constitutional
challenges to the Concealed Carry Statute, in which the question
of whether the firearm was within reach was not at issue. State
v. Fisher, 2006 WI 44, ¶¶1-2, 290 Wis. 2d 121, 714 N.W.2d 495;
State v. Cole, 2003 WI 112, ¶49, 264 Wis. 2d 520, 665
N.W.2d 328.   Significantly, no decision Grandberry cites——nor
any decision we could find——has reviewed a factual finding that
the trunk or cargo area of a motor vehicle was "within reach"
for purposes of the Concealed Carry Statute. See id.


                                             14
                                                                  No.     2016AP173-CR



U.S. 454, 460 (1981) (quoting Chimel v. California, 395 U.S.

752, 763 (1960)) (alteration in original).                 Grandberry construes

the Court's words in Belton to mean "within reach."                      We are not

so convinced.        Rather, federal courts have described the area

subject    to    a   warrantless    search      incident    to    arrest     as   the

arrestee's "grab area."        See, e.g., United States v. Gandia, 424

F.3d 255, 261 (2d Cir. 2005).15           After equating the grab area of

Fourth Amendment jurisprudence to "within reach" for purposes of

the Concealed Carry Statute, Grandberry goes on to argue that

the terms have the same meaning regardless of the context in

which they are applied.16      They do not.

     ¶25    Grandberry and the concurrence fail to recognize the

important distinctions between these terms.                Both Grandberry and

the concurrence conflate judicial interpretations of the Fourth

Amendment with a factfinder's application of laws to a given set

of facts.       The determination of whether police conduct comports

with Fourth Amendment jurisprudence concerning searches incident

to   arrest     is   a   question   of        law.   State       v.     Harris,   206


     15
       Accordingly, we employ the term "grab area" when
referring to Fourth Amendment jurisprudence concerning searches
incident to arrest and employ the phrase "within reach" for
discussion related to the Concealed Carry Statute.
     16
       The result of Grandberry's argument is that any area
accessible from the passenger compartment (including the cargo
area of minivans, station wagons, SUVs, and the like) is within
reach, as a matter of law, because federal courts consider those
areas to be within the person's "grab area," United States v.
Stegall, 850 F.3d 981, 985 (8th Cir. 2017) (citing United States
v. Mayo, 394 F.3d 1271, 1277 (9th Cir. 2005)).


                                         15
                                                                       No.     2016AP173-CR



Wis. 2d 243, 249-50, 557 N.W.2d 245 (1996).                      On the other hand,

the question of whether a handgun is within reach is one of

fact.17     See McNair v. Coffey, 279 F.3d 463, 476 (7th Cir. 2002)

(Coffey, J., concurring in the judgment and dissenting in part)

("It is a basic premise of our legal system that juries are the

triers of fact only; it is for the judge, not the jury to

interpret the law and to draw the line in the sand separating

conduct      that        is     protected         and    unprotected          under     the

constitution.").

      ¶26    Accordingly, it would be improper for us to set forth

an exhaustive list of nooks and crannies within the various and

sundry configurations of motor vehicles wherein the armed, but

unpermitted,        motorist     may    place      his    dangerous     weapon.         Our

inability is a matter of legal proscription and not lack of

will.       Put     simply,      we    do   not    provide      the    certainty      both

Grandberry        and    the    concurrence       seek    because      our     system    of

criminal justice assigns the task of defining statutory terms to

this court (as we did when we defined "go armed with" to mean
"within reach"), but assigns the task of determining whether a

set   of    facts       fits   that   definition        (in   this    case,    whether    a

      17
       E.g., Fry, 131 Wis. 2d at 182 (affirming jury verdict
that handgun in glove compartment was within driver's reach);
State v. Asfoor, 75 Wis. 2d 411, 435, 249 N.W.2d 529 (1977)
(affirming jury verdict that handgun on floorboard of motor
vehicle was within reach); Mularkey, 201 Wis. at 432 (affirming
jury verdict that handgun on shelf behind front seat was within
reach); State v. Keith, 175 Wis. 2d 75, 79, 498 N.W.2d 865 (Ct.
App. 1993) (affirming jury verdict that handgun in defendant's
purse was within reach).


                                            16
                                                                                 No.     2016AP173-CR



dangerous         weapon     is     "within      reach")       to    the      jury.       State       v.

Leist, 141 Wis. 2d 34, 37-38 & n.2, 414 N.W.2d 45 (Ct. App.

1987) (citing United States v. Goetz, 746 F.2d 705, 708 (11th

Cir. 1984) and State v. Christensen, 100 Wis. 2d 507, 510, 302

N.W.2d 448 (1981)); cf. Curtis v. Montgomery, 552 F.3d 578, 581-

82 (7th Cir. 2009) (quoting People v. Curtis, 820 N.E.2d 1116,

1124    (Ill.        App.     Ct.       2005))       ("whether       a    particular          set    of

circumstances            constitutes           'surveillance'            as     defined       in    the

statute is a question of fact for the jury.").

       ¶27        Next, Grandberry and the concurrence fail to recognize

that     the       two     bodies       of     law     developed         independently.              As

discussed above, we first used the term "within reach" to define

"go armed with" in 1930.                     Mularkey, 201 Wis. at 432; see also

supra, ¶16.          The concept of search incident to arrest originated

in    1914.         Chimel,       395    U.S.     at    755    (citing          Weeks    v.     United

States, 232 U.S. 383 (1914)).                        However, no phrase that resembles

"within reach" or "grab area" was used in the search incident to

arrest       context       before       1969.          Id.    at    763       ("There     is       ample
justification, therefore, for a search of the arrestee's person

and    the     area      'within     his       immediate      control'——construing                  that

phrase       to     mean     the    area       from     within       which       he     might       gain

possession of a weapon or destructible evidence."); see also id.

at 755-762 (recounting development of search incident to arrest

jurisprudence).

       ¶28        This independent development of the two distinct legal

concepts       is     significant         because       we    have       never    conflated         the
concepts       of     grab    area       and    within       reach       when    construing         the
                                                  17
                                                                            No.     2016AP173-CR



Concealed Carry Statute.                  One example of this separateness is

Fry.      Most     of     our    decision        in    that     case       centers     on    our

consideration        of    Fourth         Amendment       jurisprudence             concerning

searches incident to arrest.                 See generally Fry, 131 Wis. 2d at

161-81.        However,         in    a   discreet      part     of    the        opinion,    we

separately considered whether the evidence adduced at trial was

sufficient to uphold the defendant's conviction for carrying a

concealed and dangerous weapon.                      The defendant argued that the

handgun in his glove compartment could not, as a matter of law,

be within reach because he testified at trial that his glove

compartment would not open when the passenger seat was occupied.

Id. at 182.        We rejected his argument because the jury "was free

to discount" his testimony in resolving the factual issue of

whether      his   handgun       was      within      reach.         Id.    (quoted       source

omitted).

       ¶29    In   Fry,    we        properly    treated       the    concepts       of     "grab

area" and "within reach" as entirely separate concepts, as we

have for decades and as we do here.                      Id.     The two areas of law
developed separately, and it is only by coincidence that they

employ similar language.                  Confusion between the two contexts

exists only because Grandberry threw it out like so much chum

upon the waters and the concurrence took the bait hook, line,

and sinker.        To define "within reach" in the same way the United

States Supreme Court defines "grab area" is to:                               (1) assign a

definition to "within reach" that was not and could not have




                                                18
                                                           No.    2016AP173-CR



been intended when the term was first used;18 (2) confuse two

entirely separate and distinct areas of the law; and (3) lead

naturally to the illegal usurpation of the role of the jury.               We

decline       Grandberry's   invitation   to   do    so,   no    matter   how

vociferously the concurrence urges us to accept it.

  3.        Grandberry's argument fails because there is no conflict
                            between the statutes.
       ¶30 We start by observing that no part of a motor vehicle

is, as a matter of law, within reach.               Rather, defining what
areas of a motor vehicle are within reach has been, is now, and

(absent legislative amendment) will continue to be a question to

be resolved on a case-by-case basis by finders of fact and by

courts reviewing the sufficiency of the evidence in particular

cases.        See generally Fry, 131 Wis. 2d at 182.            Citizens who

seek to comply with both statutes have at least two reasonable




       18
       This court had been using "within reach" for purposes of
the Concealed Carry Statute for approximately 39 years before
the United States Supreme Court introduced the phrase "within
his immediate control" to Fourth Amendment jurisprudence.   See
Mularkey, 201 Wis. at 432; Chimel, 395 U.S. at 763.


                                     19
                                                                          No.     2016AP173-CR



means of doing so:               (1) obtaining a concealed carry license;19

or, (2) placing their firearms out of reach.

    ¶31     Grandberry           and     the    amicus     devote         a     considerable

portion     of     their    respective          arguments      within          their    briefs

describing the parade of horribles they claim will result from

our decision to affirm the court of appeals.                              They raise the

specter of promiscuous prosecution of hunters and sport shooters

who will be left struggling to comply with both statutes.                                  The

myriad of hypothetical circumstances that may arise in factual

backgrounds        in     prosecutions         for    carrying        a       concealed    and

dangerous        weapon     render       it    impossible       for       this     court    to

establish a bright-line rule setting forth which parts of a

vehicle   are      and     are    not    within      reach.      Nor      is     it,    absent

legislative directive, our place to do so.                       See Kittias Cty. v.

E. Wash. Groth Mgmt. Hearings Bd., 256 P.3d 1193, ¶23 (Wash.

2011) (rejecting proposed bright-line rule where inquiry is "a

question of fact based on the specific circumstances of each

case").          Nonetheless,           citizens     and      factfinders         can      find



    19
       Grandberry argues that requiring citizens to obtain a
concealed carry license puts an economic barrier on their right
to bear arms.    This argument is rendered moot by our holding
that persons without a concealed carry license can comply with
both statutes by placing their firearms out of reach. Further,
Grandberry raises the economic barrier argument as a bare one-
sentence assertion in a footnote and never develops it. We need
not address this argument, and given its undeveloped state, it
would be imprudent to do so. State v. Gracia, 2013 WI 15, ¶28
n.13, 345 Wis. 2d 488, 826 N.W.2d 87 ("we do not usually address
undeveloped arguments").


                                               20
                                                              No.    2016AP173-CR



guidance20 in our precedent and common sense, and should consider

factors such as the location of the dangerous weapon in the

motor vehicle relative to the location of its possessor, the

motor vehicle's size, and the possessor's ability to reach the

dangerous weapon while in the motor vehicle.

     C. Grandberry Failed to Satisfy His Burden to Prove the
       Concealed Carry Statute is Unconstitutionally Vague.
      ¶32    We next consider whether the Concealed Carry Statute

is   unconstitutionally      vague21    as    applied   to   Grandberry.      He
admits that "[v]iewed separately, the [Concealed Carry Statute]

and the [Safe Transport Statute] appear clear."                     However, he

argues      that    "read   together,        they   create   unconstitutional

vagueness."        This argument is based on the same premise as his

sufficiency-of-the-evidence argument——that the two statutes are

      20
       We resist the invitation of Grandberry and the amicus to
make broad pronouncements based on hypothetical facts.      See
State v. Steffes, 2013 WI 53, ¶27, 347 Wis. 2d 683, 832
N.W.2d 101:

      [T]his court does not issue advisory opinions on how a
      statute could be interpreted to different factual
      scenarios   in   future  cases.   See   Grotenrath   v.
      Grotenrath, 215 Wis. 381, 384, 254 N.W. 631 (1934)
      ("[C]ourts   will   not  ordinarily   render   advisory
      opinions where the questions propounded have not
      arisen and may never arise."). Rather, it is our job
      to adjudicate the dispute in front of us. It is thus
      not necessary for us to resolve the hypotheticals laid
      out by [the Defendant].
      21
       The terms "unconstitutionally vague" and "void for
vagueness" describe the same concept and are thus used
interchangeably.   See State v. McManus, 152 Wis. 2d 113, 135,
447 N.W.2d 654 (1989).


                                        21
                                                                     No.    2016AP173-CR



in conflict——and for the same reasons we hold that the Concealed

Carry      Statute    provides       sufficient     notice   of     what   conduct      is

prohibited.

      ¶33     "[T]he        void-for-vagueness       doctrine     requires       that    a

penal      statute     define       the   criminal    offense       with   sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement."               Beckles v. United States, 137 S.

Ct. 886, 892 (2017) (citing Kolender v. Lawson, 461 U.S. 352,

357 (1983)).          See also State v. Cissell, 127 Wis. 2d 205, 224,

378 N.W.2d 691 (1985) (quoting Kolender for the definition of

void-for-vagueness); Wayne R. LaFave, 1 Substantive Criminal Law

§ 2.3 (2d ed.), Westlaw (database updated Oct. 2017) ("The void-

for-vagueness doctrine . . . require[s] that a criminal statute

be   declared        void    when    it   is   so   vague    that    men    of    common

intelligence must necessarily guess at its meaning and differ to

its application").

      ¶34     Grandberry's          constitutional    challenge      is    as-applied.
In an as-applied challenge, a court assesses the merits of the

constitutional claim by considering the facts of the particular

case, not hypothetical facts in other situations.22                          State v.

Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785.

Thus, in this case, we consider whether a person of ordinary


      22
       This is in contrast to a facial challenge, which requires
the court to determine whether a statute may be constitutionally
applied in any circumstance. Cole, 264 Wis. 2d 520, ¶30.


                                           22
                                                                      No.     2016AP173-CR



intelligence in Grandberry's situation (i.e., placing a loaded

handgun in the glove compartment of a motor vehicle) would have

fair   notice   that     his     conduct       violates      the     Concealed       Carry

Statute.     State v. Hahn, 221 Wis. 2d 670, 679, 586 N.W.2d 5 (Ct.

App. 1998).

       ¶35   Grandberry's argument boils down to a complaint that

the statutes overlap such that placing his loaded handgun in his

glove compartment constitutes both transporting under the Safe

Transport     Statute    and     carrying          under     the     Concealed      Carry

Statute, and thus his conduct can comply with one statute while

simultaneously       violating    the     other.           Grandberry       asks    how   a

person reading the Safe Transport Statute can possibly know that

complying     with    the      terms    of     that    statute        may,     in     some

circumstances, also violate the Concealed Carry Statute.                            Unlike

the bulk of Grandberry's arguments, the answer to his question

is straightforward and elegant in its simplicity:                              read the

Concealed Carry Statute.          Due process does not demand that every

regulation on a certain subject be in the same statute; such a
requirement would be absurd.                 Rather, where multiple statutes

govern   a   defendant's       conduct,      due    process        requires    that    the

terms of the statute under which the defendant was charged be

sufficiently    clear.         Cissell,      127     Wis. 2d at       216-17       (citing

United States v. Batchelder, 442 U.S. 114, 123 (1979)).

       ¶36   The Concealed Carry Statute provides sufficient notice

to a person of ordinary intelligence that carrying a concealed

and dangerous weapon is prohibited unless one of the statutory
exceptions enumerated in Wis. Stat. § 941.23(2)(a)-(e) applies.
                                          23
                                                                       No.     2016AP173-CR



See Asfoor, 75 Wis. 2d at 435 (holding prior version of the

Concealed Carry Statute was not unconstitutionally vague).                              The

statute      clearly       defines    what      conduct     is    prohibited:          "Any

person . . . who       carries        a    concealed      and    dangerous     weapon    is

guilty of a Class A misdemeanor."                       § 941.23(2).         The language

creating the exceptions, "other than one of the following," is

equally clear that the only way a person can lawfully carry a

concealed and dangerous weapon is to fall within one of the

enumerated exceptions.               Id.        Grandberry could not reasonably

believe that placing a firearm in the glovebox of his motor

vehicle is permitted under the terms of the Concealed Carry

Statute23——something          Grandberry         obliquely       acknowledged     at    the

time    of    his    arrest        when    he     told    the     arresting      officers

(untruthfully)        that    he     possessed      a    concealed     carry     license.

Thus, Grandberry's due process challenge fails.

                                     IV.   CONCLUSION

       ¶37    We    hold    that     the   Concealed      Carry     Statute     and    Safe

Transport Statute are not in conflict because Grandberry could
have complied with both by either obtaining a concealed carry


       23
       Because this is an as-applied challenge, see supra ¶32,
our   conclusion   that    the   Concealed    Carry   Statute   is
constitutionally applied to Grandberry does not mean that the
Concealed Carry Statute is constitutionally applied in all
circumstances.   If, for instance, this opinion opens the wide
floodgates to the variety and volume of prosecutions posited by
Grandberry and the amicus, it will be up to the relevant courts
to determine whether the Concealed Carry Statute may be
constitutionally   applied    in   each    of   those   particular
circumstances. See supra ¶29 n.20.


                                             24
                                                                No.      2016AP173-CR



license pursuant to Wis. Stat. § 175.60 or by placing his loaded

handgun out of reach.        Further, we hold that the Concealed Carry

Statute    is    not   unconstitutionally    vague      because      a    person    of

ordinary    intelligence       has   sufficient    notice   that         carrying   a

concealed and dangerous weapon is unlawful unless one of the

enumerated exceptions in the Concealed Carry Statute applies.

For these reasons, we affirm the court of appeals.

    By     the    Court.—The    decision    of    the   court   of       appeals    is

affirmed.




                                       25
                                                              No.   2016AP173-CR.dk




       ¶38     DANIEL KELLY, J.        (concurring).     Mr. Grandberry tells

us he did not "carr[y] a concealed and dangerous weapon" when he

placed a handgun in his vehicle's glove compartment.                     See Wis.

Stat. § 941.23(2).          This is so, he says, because of a statute

that exempts handguns from the type of firearms one may not

place in a vehicle.           Today, the court concludes Mr. Grandberry

was wrong——he did carry a concealed and dangerous weapon, and no

statute excused his actions.            Therefore, his conviction was and

is sound.       And I agree with that.

       ¶39     But   in     reaching     that      conclusion,      we     created

unnecessary ambiguity about what it means to "carry" a weapon.

Whereas that concept bore only one meaning before today, now it

bears two——one for measuring the propriety of vehicle searches

under the constitution, and another for espying a violation of

Wis. Stat. § 941.23(2) (the "Concealed Carry Statute").                    This is

both unnecessary and unwise.

       ¶40     The Concealed Carry Statute's proscription is clear,
and the process of determining whether Mr. Grandberry violated

it    covers    well-travelled       ground.       The   statute    says    "[a]ny

person, other than one of the following, who carries a concealed

and dangerous weapon is guilty of a Class A misdemeanor."                       Wis.

Stat. § 941.23(2).          All agree that Mr. Grandberry did not fit

within any of the exceptions, so we next inquire into what it

means to "carry" a weapon.           The Concealed Carry Statute provides

the    answer:            "'Carry'     has   the    meaning      given     in    s.
175.60(1)(ag)."       § 941.23(1)(ag).          Following this cue, we find

                                         1
                                                                  No.    2016AP173-CR.dk


in the referenced section that                "'[c]arry'        means to go armed

with."    Wis. Stat. § 175.60(1)(ag).

      ¶41   We have a long history with the phrase "to go armed

with" as it relates to the Concealed Carry Statute.                           Nearly a

century ago we decided, as a matter of law, that a person is

armed when he has a firearm "within reach."                     Mularkey v. State,

201   Wis. 429,   432,    230     N.W. 76     (1930)       ("[T]he      driver    of    an

automobile goes armed, within the meaning of                       section 340.69,

Stats.,[1] when he has a dangerous weapon within reach on a shelf

in back of his seat." (citations omitted)).                     We said essentially

the same thing in State v. Asfoor, 75 Wis. 2d 411, 433-34, 249

N.W.2d 529 (1977), stating that "'going armed' meant that the

weapon was on the defendant's person or that the weapon must

have been within the defendant's reach."                        We confirmed this

understanding     of   the    phrase     in       State    v.   Fry,    another    case

involving   a   handgun      in   a   vehicle's       glove     compartment.           131

Wis. 2d 153, 182, 388 N.W.2d 565 (1986) ("The elements of the

crime of carrying a concealed weapon are:                   (1) the defendant had
a dangerous weapon on his person or within his reach . . . ."

(citation   omitted)),       overruled       on    other    grounds      by   State     v.

Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.

      ¶42   We now arrive at the end of the definitional chain in

which "carry" means "go armed with," and "go armed with" means


      1
       This statute was the precursor to the Concealed Carry
Statute, and provided that "[a]ny person who shall go armed with
any concealed and dangerous weapon shall be punished."      Wis.
Stat. § 340.69 (1929-30).


                                         2
                                                                No.    2016AP173-CR.dk


to have a weapon "within reach."             A weapon is "within reach" if

it is in a vehicle's passenger compartment.                    We know this on no

less an authority than the United States Supreme Court.                            In

describing    the     permissible       scope      of    a    warrantless      search

incident to arrest, the Court said:                 "Our reading of the cases

suggests the generalization that articles inside the relatively

narrow compass of the passenger compartment of an automobile are

in fact generally, even if not inevitably, within 'the area into

which an arrestee might reach in order to grab a weapon or

evidentiary ite[m].'"            New York v. Belton, 453 U.S. 454, 460

(1981) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)),

abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 343

(2009).     Some courts include "the hatchback or rear hatch area

of a vehicle" within the meaning of "passenger compartment," so

long as "an occupant could have reached [that] area while inside

the vehicle."        United States v. Stegall, 850 F.3d 981, 985 (8th

Cir. 2017) (quoted source omitted).                 The rear cargo area of an

SUV   may   also   fall     in   that   category.        See    United    States    v.
Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999); see also

United States v. Henning, 906 F.2d 1392, 1396 (10th Cir. 1990)

("Where, . . . the vehicle contains no trunk, the entire inside

of the vehicle constitutes the passenger compartment and may be

lawfully searched.").

      ¶43   This     last    definitional         step   is    where     we    created

ambiguity.      We    said   that   what     is    "within     reach"    for    Fourth

Amendment purposes is something different from what is "within
reach" for purposes of the Concealed Carry Statute.                       The court

                                         3
                                                               No.     2016AP173-CR.dk


offers    two    reasons    for    its   belief    that   these      are   "entirely

separate concepts."        See majority op., ¶29.            First, it says they

are substantively different because the court decides one, while

the jury decides the other.               The second is just a matter of

rhetoric.        Literally.       The court chose synonymous phrases to

describe the same concept and then asserted the synonyms created

a substantive difference.            I'll address each of these reasons in

turn.

    ¶44     "Within reach," the court said, is a question of law

in the Fourth Amendment context, while in the context of the

Concealed Carry Statute it is a question of fact.                          Id., ¶25.

Therefore,       the   court      concluded     they   mean    different      things

because    the    court    decides    the     former   and    juries     decide   the

latter.     See id.     Get it?      I don't.     And I don't think the court

does either.       Whether it is a question of law or a question of

fact, both questions address precisely the same consideration:

Can a person reach the firearm?                The length of a person's arm

doesn't change because a jury measures it instead of a judge.
The only real significance presented by the different contexts

is that one deals with a potentiality and the other with the

resolution of the potentiality.             Here is what I mean.

    ¶45     The lawful scope of a warrantless search incident to

an arrest is defined by a potentiality, to wit, the space into

which a person could conceivably reach to retrieve a weapon.

The purpose of such searches is "'to remove any weapons that

[the arrestee] might seek to use in order to resist arrest or
effect his escape' and the need to prevent the concealment or

                                          4
                                                                           No.    2016AP173-CR.dk


destruction of evidence."                 Belton, 453 U.S. at 457 (quoting

Chimel, 395 U.S. at 763).                  It is the danger created by an

arrestee's      potential       access     to      a    weapon      that         justifies    the

search.      The      Supreme     Court    emphasized          this        justification       in

Arizona v. Gant, in which it rejected a reading of Belton that

allowed    vehicle       searches       even       when    there      was        no   reasonable

chance    the    arrestee       could     access        the    passenger          compartment:

"Accordingly, we reject this reading of Belton and hold that the

Chimel rationale authorizes police to search a vehicle incident

to   a    recent      occupant's     arrest            only    when     the       arrestee     is

unsecured       and     within     reaching            distance       of     the       passenger

compartment at the time of the search."                            Arizona v. Gant, 556

U.S. 332, 343 (2009); accord State v. Dearborn, 2010 WI 84, ¶29,

327 Wis. 2d 252, 786 N.W.2d 97.

     ¶46    The       Supreme    Court's concern is entirely functional,

and is focused on the physical reality that a quick movement

within    the    passenger       compartment           could    put    a     weapon      in   the

suspect's hand.         The Court has decided, as a matter of law, that
the entirety of a vehicle's passenger compartment can be reached

by such a movement.             Presumably, it had a good basis for making

that determination.             If it did not, we would have to conclude

that the Court's understanding of the Fourth Amendment in this

context has its roots in a factual fallacy.                           Nothing suggests we

ought to entertain that possibility, so I must conclude that the

Court    truly     meant    that    a     firearm         in   a    vehicle's          passenger

compartment is within an occupant's reach.



                                               5
                                                                     No.    2016AP173-CR.dk


       ¶47   Now   for    the    court's       rhetorical      distinction         between

"within reach" and "within reach."                   The court says the federal

judiciary "describe[s] the area subject to a warrantless search

incident to arrest as the arrestee's 'grab area,'" majority op.,

¶24 (quoting United States v. Gandia, 424 F.3d 255, 261 (2d Cir.

2005)), whereas our court uses "within reach" to describe the

area subject to the Concealed Carry Statute.                       And then the court

says   "Grandberry       and    the    concurrence         fail    to      recognize     the

important distinctions between these terms."                         Id., ¶25.       Well,

that much is certainly true.                  But I take comfort in the fact

that   the   Belton      court——upon      which      the     court      relies    for    its

rhetorical     distinction——shares             the    same        purported       failure.

Belton said the "the passenger compartment of an automobile" is

subject to search because it is "within 'the area into which an

arrestee might reach in order to grab a weapon or evidentiary

ite[m].'"      Belton, 453        U.S. at 460          (quoted source omitted).

This    is   the   actual       sentence       in    which     the      court     says    it

discovered    a    substantive         difference     between        "grab      area"    and
"within reach."       See majority op., ¶24.

       ¶48   The   problem      with    the    court's      discovery        is   twofold.

First, there is not even a theoretical difference between "grab

area" and an area that is "within reach."                     To conclude otherwise

would be to say that one may grab something beyond one's reach,

or that one may reach something one cannot grab.                              The second

problem is grammatical.           The court reads Belton as using "grab"

to define an area.          That's not what Belton was doing.                      It was
describing what a suspect might do in an already defined area——

                                           6
                                                                   No.    2016AP173-CR.dk


to wit, "grab a weapon or evidentiary ite[m]."                     Belton, 453 U.S.

at 460 (quoted source omitted).                  How did the Belton court define

where that might be done?               It said a weapon might be grabbed

from "within the area into which an arrestee might reach."                               Id.

Or,    with    the    judicious       use    of    one's     editing      pencil,       this

definition can be shortened——without losing a jot or tittle of

meaning——to "within . . . reach."                  So the court's discovery of a

substantive difference between "within reach" and "within reach"

is both illogical and ungrammatical.                  I am confident the Belton

court     would      find    no    "important       distinctions         between    these

terms."       See majority op., ¶25.

       ¶49    The court also faults me (and Mr. Grandberry) for not

substantively distinguishing "within reach" (Fourth Amendment)

from    "within      reach"       (Concealed      Carry    Statute)      based     on   the

separate lines of cases in which the concept has been used.                              See

id., ¶27.          I acknowledge that I find this to be a distinction

without a difference, but I don't think it's a fault.                                   The

Concealed Carry Statute concerns itself with the same physical
reality addressed by Belton and Gant.                      In the Fourth Amendment

context, the concern is whether there could be a weapon within

reach.       In the Concealed Carry Statute context, the concern is

whether there actually was a weapon within reach.

       ¶50    This just means that the jury resolves as a factual

matter       the    potentiality      described       by     our   Fourth     Amendment

jurisprudence.              The     Fourth       Amendment     defines      the     outer

parameters of what could be lawfully within a defendant's reach;
the jury decides whether a specific defendant could actually

                                             7
                                                                      No.   2016AP173-CR.dk


reach that location under the circumstances of a specific case.

If   he   could,    then     the    weapon       was   "within     reach"     within    the

meaning     of      the     Concealed      Carry         Statute.           However,    if

circumstances arise that make it impossible for a defendant to

obtain a weapon from the area described by Belton and Gant, the

jury may acquit.            The defendant attempted this very gambit in

State v. Fry.           He argued that the glove compartment in which he

placed    his     gun     would    not   open     when    the    passenger      seat    was

occupied, so the gun was not within reach.                      See Fry, 131 Wis. 2d

at 176.     The jury convicted him anyway, and we found no error.

Id. at 156.        Nor did we address the concealed-carry question as

anything     other         than    a     particularized          inquiry       into     the

relationship between the weapon and the area described by Belton

and Gant.

      ¶51    Mr. Grandberry's concerns have a good foundation, and

we shouldn't have dismissed them as abruptly as we did.                                The

court     said     that    "[a]ccording          to    Grandberry,      a    person    who

transports a loaded handgun in a motor vehicle that lacks a
trunk separate from the passenger area (e.g., a minivan, SUV,

hatchback, or station wagon) complies with the Safe Transport

Statute     yet    is     always    in   violation        of    the   Concealed       Carry

Statute."        Majority op., ¶22.          We then concluded that this would

be a compelling argument but for the lack of any "statute, case

law, or regulation" to support it.                     Id., ¶23.      But in actuality

we are the ones who lack a statute, opinion, or regulation to

answer Mr. Grandberry's concern.                  No law defines "within reach"
more narrowly in the concealed-carry context than in the Fourth

                                             8
                                                                         No.    2016AP173-CR.dk


Amendment context.              Consequently, if Mr. Grandberry encases a

handgun and puts it in the furthest corner from the driver's

seat in an SUV, he is at risk of prosecution for violating the

Concealed Carry Statute.

       ¶52      Ultimately, the court doesn't finish the job it set

out for itself.              It proposed that the concept of "within reach"

could describe one area for purposes of the Fourth Amendment,

and    a    different         area   for    purposes        of    the    Concealed       Carry

Statute.         But the court went no further than opining on why it

believes the concept should describe different areas.                                  That is

to     say,      the   opinion       doesn't       describe       what    the     difference

actually is.           In fact, we affirmatively refused to say what it

might      be.         Instead,      we    chillingly       advised       the     people    of

Wisconsin to risk criminal liability on multi-factor tests and

common sense:           "[C]itizens and factfinders can find guidance in

our precedent and common sense, and should consider factors such

as the location of the dangerous weapon in the motor vehicle

relative to the location of its possessor, the motor vehicle's
size, and the possessor's ability to reach the dangerous weapon

while      in    the   motor     vehicle."          Id.,    ¶31    (footnote        omitted).

Anent the last clause of this formulation:                        How does "ability to

reach the dangerous weapon while in the motor vehicle" differ

from    "within        the    area   into    which     an    arrestee          might   reach"?

Common sense will utterly exhaust itself trying to find any room

between the two, and we aren't saying what the difference might

be.     And yet, a person placing a firearm in a vehicle hazards



                                               9
                                                                    No.       2016AP173-CR.dk


criminal prosecution if he can't figure out a distinction that

we refuse to describe.

      ¶53    The Concealed Carry Statute is not unconstitutionally

vague, but only because its proscription reaches the entirety of

the   passenger      compartment.           This   is     a     readily-ascertainable

prohibition.      But if criminality depends on a non-exclusive list

of variables like the size of a vehicle, the placement of a

weapon, and "common sense," then we have denied the people of

Wisconsin the ability to identify with any certainty what the

statute prohibits with respect to vehicles.                       So, ironically, in

the    process       of    explaining            why      the     statute           is   not

unconstitutionally vague, we have made it so.                          See Kolender v.

Lawson,     461   U.S. 352,      357    (1983)         ("[T]he     void-for-vagueness

doctrine    requires      that    a    penal      statute       define        the   criminal

offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does

not   encourage       arbitrary        and       discriminatory               enforcement."

(citations omitted)).
                                            *

      ¶54    I    agree    with       the       court's       mandate         because    Mr.

Grandberry could comply with both the Concealed Carry Statute

and Wis. Stat. § 167.31(2)(b) (the "Safe Transport Statute").

As we have described elsewhere, the Safe Transport Statute (as

relevant     here)    simply      exempts        handguns       from      a     prohibition

against placing loaded firearms in a vehicle.                       Wis. Carry, Inc.

v. City of Madison, 2017 WI 19, ¶¶12, 47-51, 373 Wis. 2d 543,
892 N.W.2d 233 (referring to the "Safe Transport Statute" as the

                                            10
                                                                         No.    2016AP173-CR.dk


"Vehicle       Statute").         Nothing       about     its       terms        excuses      the

individual from complying with all other applicable laws.                                     So,

although       Mr.    Grandberry    did     not    violate         the        Safe    Transport

Statute when he placed his handgun in the glove compartment, he

most assuredly violated the Concealed Carry Statute.

       ¶55     And now, a postscript of sorts:                        Given Wisconsin's

proud hunting heritage, it's worth noting the Concealed Carry

Statute's       shockingly      broad     proscriptions.                 In    amending       our

statutes to offer the opportunity to carry concealed handguns,

the    legislature       simultaneously          made    it       unlawful       to    carry    a

concealed       rifle    or    other     long      gun.           This     may       have    been

inadvertent, but we give effect only to what the legislature

does, not what it tried to do.2                        The Concealed Carry Statute

prohibits       an    individual    from    carrying          a    "dangerous          weapon."

Wis. Stat. § 941.23(2).            A "[d]angerous weapon" is, inter alia,

"any       firearm,     whether    loaded         or     unloaded."              Wis.       Stat.

§ 939.22(10).          There is no exception for rifles, shotguns, or

other long guns.           A person can, of course, obtain a permit to
carry      a   concealed      weapon,    but     they     are      available          only    for

handguns,       electric      weapons,     and     billy          clubs.         Wis.       Stat.

§ 941.23(2)(d) (2015-16); Wis. Stat. § 175.60(1)(j) (2015-16).

So if you hunt, you may not put your rifle in a case.                                   And if

you put your rifle in the passenger compartment of a vehicle,

       2
       "We assume that the legislature's intent is expressed in
the statutory language. . . . It is the enacted law, not the
unenacted intent, that is binding on the public." State ex rel.
Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110.


                                            11
                                                                         No.   2016AP173-CR.dk


you must display it in such a way that it is readily observable.

Mularkey,      201    Wis.          at   432    ("If    the     weapon    is   hidden      from

ordinary observation it is concealed.                          Absolute invisibility to

other persons is not indispensable to concealment.                             The test is,

was    it    carried       so       as   not     to    be     discernible      by    ordinary

observation." (citation omitted)).                       The State is aware of this

overbreadth, which is why it instructs game wardens to ignore

the Concealed Carry Statute as it relates to hunters and their

long   guns.         In    the       course     of    arguing    this     case,     the   State

acknowledged that "as a practical matter, the DNR does not treat

rifles in a case as 'concealed.'"

       ¶56   Finally,           a    post      postscript.        The     Concealed       Carry

Statute also puts at risk all those who do not have concealed

carry permits who nonetheless bring their handguns to shooting

ranges.      To comply with the statute, one would have to keep the

handgun uncased at all times, and if placed in the passenger

compartment of a vehicle, it would have to be situated so that

it is readily observable.
       ¶57   Neither        of       these      postscripts,      however,        affect    Mr.

Grandberry,     so        his       conviction       remains     sound.        Therefore,    I

concur and join the court's mandate.




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                                                                            No.    2016AP173-CR.rgb




       ¶58       REBECCA          GRASSL       BRADLEY,         J.     (dissenting).                 The

majority's            interpretation           of   the    carrying         concealed          weapons

statute, Wis. Stat. § 941.23, ("Concealed Carry Statute"), the

license          to    carry       a     concealed        weapon       statute,         Wis.    Stat.

§ 175.60,         (the      "Concealed         Carry     Licensing         Statute"),      and       the

safe use and transportation of firearms and bows statute, Wis.

Stat. § 167.31, ("Safe Transport Statute"), criminalizes hunters

transporting           long       guns    to   hunting         grounds,     domestic       violence

victims transporting handguns to shooting ranges, and archers

transporting crossbows to archeries.                             I instead construe these

statutes          to     enable          citizens        who     lawfully         own     firearms,

crossbows, and bows to safely transport their weapons without

subjecting            themselves         to    criminal        liability.          The     majority

concludes the statutes clearly instruct how to comply with the

law.        I disagree.             The interplay of these statutes does not

provide clear notice or effective direction on how to comply

with       the    law,      and    the    lack      of   clarity       allows     for     selective

enforcement of Wis. Stat. § 941.23 (2013-14).1                               Consequently, the

application            of    the       Concealed         Carry       Statute      and     the       Safe

Transport Statute here is unconstitutional under the void for

vagueness doctrine.                Grandberry's conviction should be reversed.

       ¶59       In a 1930 case, Mularkey v. State, 201 Wis. 429, 432,

230    N.W.       76    (1930),        this    court      adopted      a    definition         of   "go

       1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                    1
                                                                    No.    2016AP173-CR.rgb


armed"    to    mean     "on      the   defendant's       person"     or    "within    the

defendant's reach."              See State v. Asfoor, 75 Wis. 2d 411, 433-

34,   249       N.W.2d 529         (1977)     (reciting       Mularkey's        holding).

Mularkey pulled this definition from Texas cases interpreting

Texas' "unlawfully carrying arms" statute, 1911 Tex. Crim. Stat.

475, which proscribed carrying a weapon "on or about his person,

saddle or in his saddle bags."                     See Wagner v. State, 188 S.W.

1001, 1002 (1916).2            The Mularkey court's reliance on Texas case

law to import "within reach" into Wisconsin's definition of "go

armed"    should       be        overruled     for    three     reasons.           First,

Wisconsin's concealed carry statute never had language similar

to the Texas statute.              Compare Wis. Stat. § 340.69 (1930) ("Any

person    who    shall      go    armed     with    any   concealed       and   dangerous

weapon shall be punished . . .") with Tex. Penal Code Art. 475

(1911) ("[I]f any person in this state shall carry on or about

his person, saddle or in his saddle bags, any [weapon] he shall

      2
       Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)
cited additional cases from Texas purportedly using the "within
reach" terminology: Leonard v. State, 119 S.W. 98 (1909); Hill
v. State, 100 S.W. 384 (1907); Mayfield v. State, 170 S.W. 308
(1914); DeFriend v. State, 153 S.W. 881 (1913); and Garrett v.
State, 25 S.W. 285 (1894).    None of these cases use the term
"within reach."    Defriend comes close to "within reach," but
does not use that wording. It says:

      "[O]n or about his person," as used in our statutes in
      connection with the carrying a pistol, is meant that
      the pistol that is alleged to have been carried must
      have been within easy access of the person carrying
      it; that the pistol could have been secured with
      practically no effort on the part of the person
      charged.

Id., 153 S.W. at 882.


                                              2
                                                             No.   2016AP173-CR.rgb


be punished . . .").           Second, the Texas cases did not interpret

"go armed" or specifically the word "carry"; instead, the Texas

courts focused on the "about his person" language in Texas' law.

Third, the United States Supreme Court's decision in District of

Columbia v. Heller, 554 U.S. 570, 584 (2008) (quoting Muscarello

v. United States, 524 U.S. 125, 143 (1998)), identifies the

"natural      meaning"    of    "bear   arms"    as     to   "wear,      bear,   or

carry . . . upon the person or in the clothing or in a pocket."

Accordingly, this court should abandon Mularkey's "within reach"

expansion of what it means to "go armed."                Doing so would honor

the textual distinction between going "armed with" a concealed

weapon and transporting a weapon in a vehicle, while confining

the Fourth Amendment standard as to what is within a person's

reach or immediately accessible to vehicle searches incident to

arrest.     See State v. Fry, 131 Wis. 2d 153, 181, 388 N.W.2d 565

(1986) (holding that when police search a vehicle incident to an

arrest, "the area in the defendant's reach or presence" within

the vehicle is authorized under the Fourth Amendment).
                           I.     VOID FOR VAGUENESS

      ¶60     Grandberry argues the interplay of Wis. Stat. § 941.23

and Wis. Stat. § 167.31 renders the Concealed Carry Statute void

for vagueness as applied to a person who transports a firearm in

a   vehicle    in   a    manner    consistent    with    the      Safe   Transport

Statute.      Specifically, he contends the ordinary person would

not have fair notice that if he complies with the Safe Transport

Statute,    he   nevertheless       might   be   guilty      of    violating     the
Concealed Carry Statute.          He also points out common scenarios in

                                        3
                                                                      No.   2016AP173-CR.rgb


which it would be impossible to comply with the Concealed Carry

Statute when transporting a firearm.

        A.    Standard of Review & Applicable Principles of Law

       ¶61    Whether a statute is constitutional presents an issue

of law reviewed de novo.                State v. Pittman, 174 Wis. 2d 255,

276,    496   N.W.2d 74    (1993).           Although      statutes         are    generally

presumed      constitutional,      when       the      challenge       is    not    to   the

statute itself, but to how it is applied, no presumption exists.

Soc'y    Ins.    v.    LIRC,    2010    WI    68,      ¶27,     326   Wis. 2d 444,       786

N.W.2d 385 ("While we presume a statute is constitutional, we do

not presume that the State applies statutes in a constitutional

manner.").       "As such, neither the challenger nor the enforcer of

the statute face a presumption in an as-applied challenge."                              Id.

       ¶62    The void for vagueness doctrine protects individuals

from unreasonable prosecution.                The Fourteenth Amendment to the

United States Constitution declares that no state may "deprive

any person of life, liberty, or property, without due process of

law."    U.S. Const. amend. XIV.              This constitutional guarantee is
protected       when   courts    declare          a   statute    invalid      that    would

otherwise violate individual procedural due process.                                Kolender

v. Lawson, 461 U.S. 352, 357 (1983).                          Courts may invalidate

unconstitutional        statutes       by    applying     the     void      for    vagueness

doctrine.        Id.    "[T]he void-for-vagueness doctrine requires a

penal statute to define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement."                Id.

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                                                                             No.    2016AP173-CR.rgb


      ¶63      This court set forth a two-part test in applying the

void-for-vagueness doctrine:                   (1) is the statute "sufficiently

definite to give persons of ordinary intelligence who seek to

avoid    its    penalties       fair      notice       of       the    conduct       required        or

prohibited"? and (2) does the statute "provide standards for

those who enforce the laws and adjudicate guilt" so the statute

can be applied consistently?                   State v. McManus, 152 Wis. 2d 113,

135, 447 N.W.2d 654 (1989).                 "If the statute is so obscure that

people    of    common    intelligence            must      necessarily             guess      at    its

meaning        and     differ        as     to        its        applicability,                it     is

unconstitutional."          City of Oak Creek v. King, 148 Wis. 2d 532,

546, 436 N.W.2d 285 (1989).                 Of particular relevance here, if a

statute lacks adequate notice of what is prohibited, causing

"basic policy matters [being left] to policemen, judges, and

juries for resolution on an ad hoc and subjective basis," it is

unconstitutional.              Dog    Fed'n      of    Wis.,          Inc.    v.     City      of    So.

Milwaukee,       178     Wis. 2d 353,          359-60,           504        N.W.2d       375    (1993)

(quoting       Grayned    v.    City      of     Rockford,            408    U.S.    104,       108-09
(1972)).

      ¶64      In assessing the clarity of a statute, normally only

"a   reasonable        degree    of       clarity"         is    required          for    it    to   be

constitutional;          however,         when       the        statute       infringes         on    a

constitutionally protected right, the law requires more exacting

precision, and "a more stringent vagueness test should apply."

Id. (first quoting Roberts v. United States Jaycees, 468 U.S.

609, 629 (1984); then citing Grayned, 408 U.S. at 110; Vill. of



                                                 5
                                                              No.    2016AP173-CR.rgb


Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 499 (1982)).3

                                  B.    Application

       ¶65     The Concealed Carry Statute makes it a crime to carry

"a concealed and dangerous weapon" unless an exception applies.

Wis.       Stat.    § 941.23.    The    exception     at   issue    here   covers   a

"licensee" who obtained a license under Wis. Stat. § 175.60.

Wis. Stat. § 941.23(2)(d).              Section 175.60 allows a person who

owns a handgun, electric weapon, or billy club to get a license,

which authorizes carrying the weapon concealed.                      However, the

Safe Transport Statute allows any person to "place, possess, or

transport a firearm, bow, or crossbow in or on a vehicle" as

long as the "firearm is unloaded or is a handgun" and as long as

a bow does "not have an arrow nocked" and a crossbow is not

"cocked        or     is     unloaded    and   enclosed."             Wis.    Stat.

§ 167.31(2)(b).            The Safe Transport Statute does not delineate

where in a vehicle the weapon must be placed and it does not

contain any licensing requirements.

       3
       Grandberry's failure to make an argument grounded in the
Second Amendment does not mean we should ignore the fundamental
constitutional right to bear arms in analyzing his void for
vagueness challenge.   See State v. Cole, 2003 WI 112, ¶20, 264
Wis. 2d 520,   665   N.W.2d 328   ("We  find   that    the   state
constitutional right to bear arms is fundamental."). Article I,
Section 25 of the Wisconsin Constitution provides: "The people
have the right to keep and bear arms for security, defense,
hunting, recreation or any other lawful purpose."      The Second
Amendment to the United States Constitution provides:      "A well
regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not
be infringed."   U.S. Const. amend. II.   I note that Grandberry
did raise this fundamental right in the circuit court.


                                           6
                                                            No.    2016AP173-CR.rgb


    ¶66   The   question    is     whether    these   statutes        give    fair

notice that a person who wants to transport a weapon in his

vehicle must either have a concealed carry license or put the

weapon out of reach.       And, does the State's admission that law

enforcement looks the other way when a hunter has a long gun

concealed in his vehicle demonstrate that Wis. Stat. § 941.23

violates constitutional due process guarantees?

                                 1. Fair Notice

    ¶67   This court reviews whether fair notice exists from the

perspective of a person of ordinary intelligence.                   McManus, 152

Wis. 2d at 135.    Would a person of ordinary intelligence know

from reading the statutes that in order to transport a firearm

in his vehicle he must get a license or put it out of reach?

Not likely.     Instead, Wis. Stat. § 941.23 when read together

with the Safe Transport Statute is more likely to "trap the

innocent by not providing fair warning" of what is permissible

and what is prohibited under law.           Grayned, 408 U.S. at 108-09.

    ¶68   Wisconsin Stat. § 941.23 broadly proscribes carrying a
concealed weapon unless certain exceptions apply.                   This statute

informs   any   person   who     is   not     a   current     or     former    law

enforcement officer that in order to lawfully carry a concealed

handgun, electric weapon, or billy club outside of that person's

own home, land, or business4 a license is required under Wis.

Stat. § 175.60.     A license is available only for those three

weapons——but not a rifle, shotgun, crossbow or bow.                   Wis. Stat.

    4
       Wisconsin Stat. § 941.23(2)(e) allows a person to carry
concealed weapons in these places.


                                      7
                                                                     No.    2016AP173-CR.rgb


§ 175.60(1)(j).           Section 941.23(1)(ag) adopts the definition of

"carry" given in § 175.60(1)(ag), which tells a person that

"'[c]arry'        means    go    armed   with."          Neither       statute        defines

"carry"     to    mean    "have      within   reach."          Section          175.60   also

prohibits licenses for those "less than 21 years of age."                                Wis.

Stat. § 175.60(3)(a).

      ¶69    These statutes certainly give fair notice that anyone

over the age of 21 who wants to carry a concealed handgun,

electric weapon, or billy club outside his property or business

must get a license.             But the language of these statutes does not

mention     vehicles       or     transportation         at    all;    further,          these

statutes do not allow the owner of a long gun, bow, or crossbow,

or   any    gun    owner    under      the    age   of    21    to     get      a    license.

Significantly, these statutes define "carry" only as "go armed

with."      There is nothing in the statutory text suggesting that

"carry"     means    having      a   weapon    "within        reach"       in    a   vehicle.

The "within reach" part of the "carry" definition comes from our

case law, not from the statutes.
      ¶70    Although, generally speaking, every person is presumed

to know the law, see Putnam v. Time Warner Cable of Se. Wis.,

Ltd. P'ship, 2002 WI 108, ¶13 n.4, 255 Wis. 2d 447, 649 N.W.2d

626, this case turns on whether the statutory language gives

fair notice to a person of ordinary intelligence, not whether

this court's decisions interpreting the statutory language do.

      ¶71    In addressing "fair notice" this court observed:

      Actual notice of the statute may be irrelevant in
      applying the concept of fair notice.    Courts require
      the law be clear so that those who consult the law are
      not confused or misled. Justice Holmes observed that
                                8
                                                            No.    2016AP173-CR.rgb

       "[a]lthough it is not likely that a criminal will
       carefully consider the text of the law before he
       murders or steals, it is reasonable that a fair
       warning should be given to the world in language that
       the common world will understand, of what the law
       intends to do if a certain line is passed.   [To make
       the warning fair, so far as possible the line should
       be clear.]"
State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455, 832

N.W.2d 560 (quoting McBoyle v. United States, 283 U.S. 25, 27

(1931)).      The line is far from clear in the matter before this

court, except perhaps to a lawyer so well-versed in the laws
governing weapons as to be aware of this court's reach into

Fourth Amendment       jurisprudence, which transfigured the rather

simple concept of "carrying" into something altogether detached

from the person.

       ¶72    A person of ordinary intelligence who is trying to

learn the legal ways to transport a firearm (or bow or crossbow)

would logically turn to the Safe Transport Statute because it

addresses transportation of these weapons in vehicles.                     The text

of   the     Safe   Transport   Statute       allows   a   person    to     "place,

possess, or transport a firearm, bow, or crossbow in or on a

vehicle" if the firearm is unloaded or is a handgun, if a bow

does not have an arrow nocked, and if a crossbow is either not

cocked or is unloaded and encased.               The Safe Transport Statute

says   nothing      about   where   any   weapon   must    be     placed    in   the

vehicle, and specifically requires concealment of one type of

weapon as one method of compliance.              The Safe Transport Statute

plainly gives fair notice that:               (1) a loaded handgun can be
placed, possessed or transported in a vehicle; (2) any other

unloaded firearm can be placed, possessed or transported in a
                                          9
                                                              No.   2016AP173-CR.rgb


vehicle;   (3)    a     bow   without   an   arrow    nocked    can    be    placed,

possessed or transported in a vehicle; and (4) a crossbow can be

placed, possessed or transported in a vehicle if it is either

not cocked or is unloaded and in a carrying case.                           The Safe

Transport Statute's text does not say that only a concealed

carry licensee can place, possess or transport a handgun in a

vehicle.   Further, it gives no instruction on specifically where

in the vehicle these weapons must be placed.

    ¶73    The    majority      concludes    that    these    statutes      are    not

void for vagueness because Grandberry could have complied with

both by either getting a concealed carry license or putting his

handgun out of reach in his vehicle.5                 How would a person of

ordinary intelligence know this?             The text of both statutes does

not alert a gun owner of any connection between the two, much

less a dependency of the Safe Transport Statute on the Concealed

Carry Licensing Statute.           Other states' statutes combine their

carrying a weapon statute with transportation of a weapon in a

vehicle statute so a person clearly knows what is lawful and
what will subject a person to prosecution.                     See, e.g., Tex.

Penal   Code     Ann.    § 46.02   (West     2017);    Ohio    Rev.    Code       Ann.

§ 2923.12 (West 2017-18).          Wisconsin's Concealed Carry Licensing

    5
       According to the record, Grandberry had lawfully purchased
the firearm involved, passed a background check, attended the
concealed carry licensing class, and had sent in his paperwork
to obtain the license at the time of the traffic stop in this
case.   Further, according to Grandberry, he did not lie to the
police when asked whether he had a concealed carry license;
instead, he told the officer he had sent in the paperwork for
his license.   His application for a license was denied because
of this case.


                                        10
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Statute limits licenses to handguns, billy clubs, and electric

weapons and requires all licensees to be at least 21 years old.

If the majority's conclusion is correct, then a large group of

gun    (and      all   bow/crossbow)    owners,   for   whom     concealed      carry

licenses are unavailable, are treated differently than handgun

owners 21 years old or older.                 Under the majority's statutory

construction, it is impossible for long gun owners who drive

small vehicles without trunks to lawfully transport their guns.

Additionally, most gun ranges require weapons to be encased when

they       are    brought    into    these    facilities.6           However,   such

concealment is prohibited by the Concealed Carry Statute, making

it impossible to lawfully take a long gun from a car into a

range.

       ¶74       The   majority's    conclusion    absolves     the     legislature

from enacting laws that give fair notice to Wisconsin citizens

who exercise their Second Amendment right to bear arms on how to

lawfully         transport   them.     Instead,   the   majority       declares   it

reasonable to expect the ordinary person reading the statutes to

       6
       See, e.g., Range Safety Rules, Wisconsin Firearms Training
Center, https://www.wifirearms.com/rangemanagement/info.cfm?titl
e=range-safety-rules (last visited Feb. 27, 2018) ("All firearms
are to be unloaded, cased, with actions open when entering or
leaving   the   facility."); Range Rules, The Range of Richfield,
https://therangewi.com/range-rules/ (last   visited    Feb.   27,
2018) ("All firearms are to be unloaded, cased, with actions
open when entering or leaving the facility."); Shooting Range
Indus. LLC, First Time at Shooting Range? Proper Indoor &
Outdoor Gun Range Etiquette & Rules for Beginners http://www.sho
otingrangeindustries.com/first-time-shooting-range-proper-
indoor-outdoor-gun-range-etiquette-rules-beginners/ (last
visited Feb. 27, 2018) ("It is proper to have your gun in a gun
case of some type. You never want to walk in with a naked gun.")


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do   the    work       of     a    lawyer    and     study,        analyze,       and   properly

interpret        case       law    (assuming       he    can       find    it)    in    order   to

reconcile two conflicting statutes.                            Even more absurdly, the

majority     expects,             indeed     requires          a        person    of    ordinary

intelligence        to       know     what      is      "within         reach"     despite      the

inability of the justices on this court to define it.                                           See

majority    op.,        ¶31       (recognizing       "it      [is]      impossible      for    this

court to establish a bright-line rule setting forth which parts

of a vehicle are and are not within reach").

      ¶75    Even if a person of ordinary intelligence was able to

find and read every applicable Wisconsin case and to understand

that a gun placed "within reach" in a vehicle violates Wis.

Stat. § 941.23, that person would also have necessarily read

footnote     2    in     State      v.    Walls,        190    Wis. 2d 65,        69    n.2,    526

N.W.2d 765 (Ct. App. 1994), which provides:

      We are mindful "that there is a long tradition of
      widespread lawful gun ownership by private individuals
      in this country." Staples v. United States, 511 U.S.
      600 (1994).   Thus, our conclusion in this case in no
      way limits the lawful placement, possession, or
      transportation of, unloaded (or unstrung) and encased,
      firearms, bows, or crossbows in vehicles as permitted
      by § 167.31(2)(b) . . . .
      ¶76    After          reading      this   footnote,           a    person    of   ordinary

intelligence would turn to the current Safe Transport Statute,

which allows transportation of a handgun in a vehicle.                                    Walls,

in essence, says transportation of a gun in a vehicle does not

violate Wis. Stat. § 941.23 as long as a person follows the Safe

Transport Statute.



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       ¶77     The text of these statutes leads to uncertainty and

lacks "sufficient definiteness [such] that ordinary people can

understand what conduct is prohibited."                           Kolender, 461 U.S. at

357.     The statutes here do not even give a reasonable degree of

clarity, let alone meet the heightened standard required for

statutes that infringe upon constitutionally protected rights.

Grayned, 408 U.S. at 110; Vill. of Hoffman Estates, 455 U.S. at

499.     These statutes do not give fair notice to the person of

ordinary intelligence who needs to transport her firearm or bow

or    crossbow       from   her   home     to    another      destination         of    how   to

lawfully accomplish this routine activity; therefore, the first

part of the void for vagueness test is satisfied.

                            2. Standards for Enforcement

       ¶78     The    second      part     of    the       void    for     vagueness         test

requires this court to analyze whether the text of the statutes

give clear guidance to those who enforce and adjudicate the

laws.          Our    statutes      must        be     capable      of     being       enforced

objectively and should not result in ad hoc, discriminatory, or
subjective enforcement.             Grayned, 408 U.S. at 108-09; Kolender,

461     U.S.    at    357-58.        Here,           the   State    conceded          that    law

enforcement looks the other way when hunters carry their long

guns concealed in violation of Wis. Stat. § 941.23.                                    This is

necessary       because     hunters      must        transport     their       long    guns    to

reach their hunting destinations, and Wisconsin does not issue

concealed carry licenses for long guns.                       Finding a place in most

vehicles where a group of hunters traveling together could place
multiple long guns without violating § 941.23 is highly unlikely

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if    not    altogether        impossible.               If    law       enforcement        arrested

hunters      every      time       they      violated     § 941.23,          our     court    system

would be overwhelmed with thousands of such cases and repeat

offenders every hunting season.7

       ¶79    The       text       of    these     statutes         unavoidably           encourages

selective enforcement and prosecution, thereby satisfying the

second part of the void for vagueness test because the statutes

currently      permit         "a    standardless          sweep          allow[ing]       policemen,

prosecutors and juries to pursue their personal predilections."

Kolender, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S.

566, 575 (1974)).

                          II. "GO ARMED WITH" DEFINITION

       ¶80    I        also    write          separately           because          our    continued

adherence         to     Mularkey's           importation           of     "within        reach"    as

Wisconsin's            definition            for   "go    armed"           is       textually      and

constitutionally unsound.                     Wisconsin Stat. § 941.23 says:                       "Any

person, other than one of the following, who carries a concealed

and    dangerous         weapon         is    guilty     of    a     Class      A    misdemeanor."
Section      941.23       does      not       define     "carries,"          but     rather     cross

references to a definition provided in Wisconsin Stat. § 175.60.

See    § 941.23(1)(ag)              ("'Carry'       has       the    meaning         given    in    s.

175.60(1)(ag)").              Section 175.60 defines "[c]arry" to mean "go

       7
       A variety of other problematic scenarios further support
my conclusion.   For example, how is a 19-year-old who owns a
handgun for personal protection supposed to transport her
handgun from her home to her grandmother's house for the
holidays while driving her subcompact hatchback car? She simply
cannot do so without violating Wis. Stat. § 941.23 and
subjecting herself to criminal liability.


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armed with."          Wis. Stat. § 175.60(1)(ag).                   Section 175.60 is

additionally         linked    to    § 941.23         because    the    latter       exempts

concealed      carry    licensees      from      its     prohibition         of    concealed

carry.    See Wis. Stat. § 941.23(2)(d).

       ¶81     As noted, our case law holds that to "go armed" means

to have the weapon "on the defendant's person or that the weapon

must    have     been   within       the   defendant's          reach     and      that   the

defendant was aware of the presence of the weapon."                               Asfoor, 75

Wis. 2d at 433-34 (citing Mularkey, 201 Wis. at 432).

       ¶82     This judicial expansion of the "go armed" definition

to encompass having a firearm "within reach" has no basis in

Wisconsin      law    and     contradicts       the    definition       of    "bear      arms"

recognized by the United States Supreme Court in Heller.                                    We

should take this opportunity to discard the judicially-invented

"within reach" part of this definition and align our definition

of "go armed" with Heller's definition of "bear arms."                                     The

Court in Heller explained that "bear" means "carry," and adopted

the    "most     familiar     meaning"     of    "carries       a   firearm"       as:     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."            554 U.S. at 584 (quoting Muscarello v. United

States, 524 U.S. 125, 130, 143 (1998)) (interpreting the meaning

of "carries a firearm" in a federal criminal statute)).

       ¶83     Wisconsin should adopt Heller's definition of "carry"

to mean the weapon is "upon the person or in the clothing or in
a     pocket."        Both     the   United      States     Constitution           and    the

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Wisconsin Constitution protect the right of the people to "bear"

arms.     The United States Supreme Court recognizes that "bear"

means "carry" and what it means to carry is the pivotal word in

this case.    Wisconsin statutes define "carry" to mean "go armed

with."    Constitutionally and textually, this can only mean upon

the person or in the person's clothing.

    ¶84     When the Mularkey court injected "within reach" into

our definition of "go armed" in 1930, it did so based on a Texas

case interpreting Texas' unlawfully carrying arms statute, which

contains language Wisconsin's statute never used.               Specifically,

the Texas statute provided:

    Unlawfully carrying arms.——If any person in this state
    shall carry on or about his person, saddle, or in his
    saddle bags, any pistol, dirk, dagger, slung shot,
    sword cane, spear, or knuckles made of any metal or
    any hard substance, bowie knife, or any other knife
    manufactured or sold for purpose of offense or
    defense, he shall be punished by fine or not less than
    one hundred dollars nor more than two hundred dollars,
    or by confinement in the county jail not less than
    thirty days nor more than twelve months, or by both
    such fine and imprisonment.
1911 Tex. Crim. Stat. 475 (second emphasis added).                The crucial

difference    between    the   Texas   statute   and   Wisconsin's     is   the

presence of "about his person" in Texas' statute, language that

never    appeared   in   Wisconsin's    concealed   carry      statute.     See

State v. Dundon, 226 Wis. 2d 654, 672, 594 N.W.2d 780 (1999)

(summarizing the history of Wis. Stat. § 941.23).                   One Texas

court equated "about his person" with having a pistol on a wagon

seat nearby——in other words, within reach.             Garrett v. State, 25
S.W. 285 (1894).     In contrast, the Wisconsin legislature enacted

the first concealed weapons law in 1872, and it used "person
                              16
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shall go armed with" language.                          Dundon, 226 Wis. 2d at 671

(quoting § 1, ch. 7, Laws of 1872).                            Although the statute was

amended        in    1878,       this    "shall        go     armed"      language      remained

essentially the same:                  "Any person who shall go armed with any

concealed           and     dangerous          weapon shall          be    punished . . . ."

Dundon, 226 Wis. 2d at 672 (quoting Wis. Stat. § 4397 (1878)).

The legislature did not change the "go armed with" language

until   it      enacted      2011       Wis.    Act     35,    which      included      both   the

current      version        of   § 941.23        and    the     licensing        statute,      Wis.

Stat. § 175.60.             And then the change was merely structural and

not substantive; the legislature replaced the "go armed with"

language       with       "carries"      and     said       "'[c]arry'     has    the    meaning

given     in      s. 175.60(1)(ag)."8                 Section        175.60(1)(ag)       defines

"carry"      to      mean    "go       armed    with."          Wisconsin       never    enacted

language like the Texas statute; therefore, Mularkey's reliance

upon Texas cases was improper in 1930 and remains improper now.

Nothing in the text of Wisconsin's concealed carry statutes,

historically or currently, proscribes concealment of a weapon
"within        reach"       in     a    vehicle.              This    criminalization          was

accomplished by the judiciary reading something into § 941.23

that is not there, resulting in a statutory construction without

basis   in      the       text    and    therefore          unknowable      to    the    average

citizen responsible for complying with the law.

    ¶85        Some       states       apply     these       statutes      only    "where      the

weapon is worn on the person of the defendant."                                  W.M. Moldoff,


    8
        See Wis. Stat. § 941.23(1)(ag).


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Annotation, Offense of carrying concealed weapon as affected by

manner of carrying or place of concealment, 43 A.L.R.2d 492,

§ 4(d); see State v. Weston, 94 S.E. 871 (S.C. 1918) (holding

that pistol placed in a satchel or suitcase does not constitute

"carrying an unlawful weapon"); Watson v. Stone, 4 So. 2d 700

(Fla. 1941) (holding that pistol in the glove pocket attached to

the inside of the dash of his vehicle did not violate statute).

The Florida Supreme Court in Watson distinguished cases from

those states that specifically use the "on or about the person"

language in their statutes, concluding that because the Florida

statute does not include the "on or about" language, the pistol

placement in the glove pocket did not violate Florida's law

prohibiting      carrying           or    having     a     pistol    in     one's    manual

possession.           4     So.     at    702.       The     Florida       Supreme     Court

specifically      distinguished                Florida's    statutory        language      of

"carrying" or "having a pistol in his manual possession" from

foreign      statutes       "making       it    unlawful    for     the    weapon    of    the

defendant to be on, under or behind the seat, cushion, door,
side    floor    or       pockets    of    an     automobile."        Id.       This      same

reasoning should have been applied when Mularkey was decided——

the Wisconsin statute does not use the "on or about" language

and    instead    prohibits          concealed       "carrying";          therefore,      this

court    misguidedly         added       the    "within     reach"    language       to   the

definition of "go armed."

       ¶86    While adhering to precedent is an important doctrine

for lending stability to the law, not every decision deserves
stare decisis effect.               After all, the purpose of stare decisis

                                                18
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"is to make us say that what is false under proper analysis must

nonetheless        be        held     to       be     true,          all    in        the    interest           of

stability."             Antonin           Scalia,          A    Matter           of        Interpretation:

Federal     Courts       and        the    Law       138-40          (1997).           However,          "[t]he

principle    of     stare       decisis             does       not    compel          us    to        adhere    to

erroneous precedents or refuse to correct our own mistakes."

State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78, ¶31, 244

Wis. 2d 613, 628 N.W.2d 376.                             This is particularly true when

following flawed precedent criminalizes behavior that a person

of ordinary intelligence would reasonably consider statutorily

permissible.        "Reflexively cloaking every judicial opinion with

the   adornment         of     stare       decisis             threatens         the        rule       of     law,

particularly when applied to interpretations wholly unsupported

by the statute's text."                     Manitowoc v. Lanning, 2018 WI 6 (R.

Grassl Bradley, J., concurring).

      ¶87    "Stare          decisis       is        neither         a     straightjacket               nor     an

immutable rule."               Johnson Controls, Inc. v. Employers Ins. of

Wausau,     2003     WI       108,        ¶100,       264       Wis. 2d 60,                665    N.W.2d 257
(quoting Carpenters Local Union No. 26 v. United States Fid. &

Guar.   Co.,      215        F.3d    136,       141      (1st        Cir.     2000)).                 There    are

circumstances           in     which       a        court       may        overturn         "outdated          or

erroneous holdings."                 Johnson Controls, Inc. 264 Wis. 2d 60, ¶96

(quoted     source       omitted).                  Among      other        factors,             in    deciding

"whether    to     depart           from    stare          decisis"         this       court          considers

"whether     the        prior        decision            is     unsound          in     principle"             and

"whether     it     is        unworkable            in        practice . . . ."                       Id.,     ¶99
(citations        omitted).                This       case       vividly           exemplifies                both

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factors.      The    foundation        of    Mularkey's       adoption    of    "within

reach"    rests   not     on    the   text    of    Wisconsin's     statute     but    on

Texas'    markedly      different      statutory        language.      This    court's

interpretation       of   "go    armed      with"      as   encompassing      having   a

firearm "within reach" clouds a plain reading of the statutes,

thereby    impairing       the    ability         of   any    person     of    ordinary

intelligence to comply with the law.

    ¶88     In this case, "[i]t is well to keep in mind just how

thoroughly [the Mularkey court's opinion] rewrote the statute it

purported to construe."               Johnson v. Transp. Agency, 480 U.S.

616, 670 (1987) (Scalia, J., dissenting).                       Because Mularkey's

interpretation of the statute's "go armed with" language reaches

well beyond the statutory text, I decline to perpetuate this

court's error on the altar of stare decisis, particularly when

the error creates a trap for the well-intentioned but unwary

citizen.

    ¶89     Correcting the error that originated in Mularkey and

survived for nearly 90 years would quite appropriately eliminate
"within reach" from concealed carry cases, confining the "within

reach" concept to Fourth Amendment incident to arrest searches




                                             20
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where it belongs.9         The majority opinion instead attempts to

ascribe a different meaning of "within reach" in concealed carry

cases than Fourth Amendment search incident to arrest cases give

it,10 but it could avoid this linguistic fallacy by applying the

definition   of   "go    armed"     as   set   forth   by    the    United   States

Supreme Court in Heller to mean "upon the person or in the

clothing   or   in   a   pocket."        Because   this     court   continues    to

define "go armed" under Wis. Stat. § 941.23 to include "within


    9
       The Fourth Amendment vehicle search incident to arrest
cases broadly define what is in within reach (or accessible to
the defendant without leaving the vehicle) and therefore
searchable without a warrant.    See Arizona v. Gant, 556 U.S.
332, 335 (2009) (clarifying Chimel v. California, 395 U.S. 752
(1969) and New York Belton, 453 U.S. 454 (1981), but agreeing
that police who search incident to arrest may search any area
"within an arrestee's 'immediate control,' meaning 'the area
from within which he might gain possession of a weapon or
destructible evidence.'").   Courts have held this includes the
cargo area in a hatchback car, the trunk area if accessible from
the back seat, and a covered cargo area in a sport utility
vehicle.   See United States v. Stegall, 850 F.3d 981, 985 (8th
Cir. 2017); United States v. Allen, 469 F.3d 11, 15-16 (1st Cir.
2006); United States v. Arnold, 388 F.3d 237, 239-41 (7th Cir.
2004) (collecting cases) (protective search case); United States
v. Olguin-Rivera, 168 F.3d 1203, 1206 n.1 (10th Cir. 1999)
(collecting cases).
    10
       The majority's attempt to separate "within reach" in the
concealed carry context from the incident to arrest framework
may create more problems than it purports to resolve.       Going
forward, the majority's decision prevents the State from using
any "within reach" incident to arrest cases as the basis for
argument in a concealed carry case.      It also necessitates a
trial in every concealed carry "within reach" case, regardless
of where the weapon is located in the car.     Consequently, even
if a handgun is sitting on a defendant driver's seat, a jury
would need to decide whether the handgun was "within reach"
instead of allowing the circuit court to conclude as a matter of
law that the carrying element of the test was satisfied.


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reach," I cannot join it.   I would align Wisconsin law with the

constitutions of both this state and the United States and apply

the original meaning of "go armed with" as defined in Heller.

Because the majority renders many of Wisconsin's law-abiding gun

owners criminals, but for the benevolence of law enforcement and

the discretion of prosecutors, I respectfully dissent.




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1
