Bruce Vielmetti

Milwaukee Journal Sentinel

Kenosha — One of the first cases to test a lesser-known aspect of Wisconsin's 2011 concealed weapons law came before a judge Monday.

The issue is whether you can drive with a loaded handgun within reach, even without having a concealed carry permit.

Guy A. Smith, a 52-year-old commercial truck driver from Merrill, believes, as does a gun rights organization, that you can. That's why he said he made no effort to hide his revolver when inspectors entered his big rig at a weigh station in Pleasant Prairie in June.

Inspectors saw it on the floor of his cab via an overhead camera, then approached Smith and cited him for carrying a concealed weapon, a misdemeanor, and seized his gun.

Smith's case was set for a jury trial Monday, but the prosecutor seemed ambushed by the defense claim that a different Wisconsin law seems to specifically allow Smith's actions. The statute on transport of weapons says,

" ... no person may place, possess, or transport a firearm, bow, or crossbow in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun."

Assistant District Attorney Thomas Binger said that's a question of law that Smith's attorney should have brought up before trial.

The defense position "would suggest anyone without a permit can drive around with a loaded weapon in the vehicle," Binger said. "I decline to read the statute so broadly." He said Wisconsin's concealed carry law, Act 35, would have no meaning.

"No meaning in cars," Circuit Judge Bruce Schroeder clarified.

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Smith's attorney, John Monroe, raised a second possible defense: that for a truck driver like Smith, his cab is at times his place of business and his residence. In either place, people who are legally entitled to possess a gun can have one for self-defense without a concealed carry permit, according to state law.

Binger argued that Smith could easily have gotten a permit, which would allow him to carry the gun in his truck. "We still have a law against concealed carry without a permit, despite the efforts" of gun rights advocates.

After the hearing, Smith said he didn't get a permit because he didn't need to.

"I'm just a trucker trying to stay alive," he said. "I want my gun back, and I don't want a record, and I'm not paying a fine. I didn't do anything wrong."

Schroeder agreed with Monroe that Act 35 was part of "a revolution" in the law concerning guns. "People have different views," he said. "Some feel more protected with firearms, and it used to be an opposite view" that prevailed among lawmakers.

The judge agreed with Binger that it would have been more convenient for Monroe to raise his defenses in pretrial discussion or motions but noted Monroe was not obligated to do so. Binger had indicated that if Schroeder was inclined to agree with Monroe and dismiss the case, the state would appeal.

Schroeder instead decided to adjourn the case a few months to allow both sides to brief the issues of the possibly conflicting statutes.

Wisconsin Carry Inc., a gun rights group, is providing Smith's defense. Monroe, his attorney, has won numerous other gun-related cases on behalf of the group.

"As the Wisconsin Legislature attempts to restore freedoms in Wisconsin like other states have already done, we cannot have rogue DAs and courts imposing their legacy approach to gun rights, which is no longer supported by statute," said Nik Clark, president of Wisconsin Carry.

He said the group chose to help Smith because his case was "clean," without any clouding issues of alcohol, traffic infractions or a related crime scene and would be a good way to clarify the Legislature's intent to allow people to transport loaded handguns in their vehicles without a concealed carry license.