But not everything is rosy over on State Street. Chisholm, like other elected officials, is struggling with a tight budget—eased in large part by an earmark inserted by Sen. Herb Kohl in the federal budget that enabled Milwaukee County to not lay off some assistant district attorneys—plus an exodus of experienced prosecutors who simply can’t afford to work for the office anymore no matter how much they love their jobs.
Then there’s the constant uphill battle against crime in a sprawling metropolitan area that includes pockets of deep poverty and dysfunction. In particular, Chisholm has been frustrated by his inability to prosecute many people who have guns who shouldn’t.
Chisholm, who had supervised the office’s gun unit before being elected district attorney in 2006, points to the conflicting federal and state laws on firearms and the messages they send. The tragic result is guns in the hands of people who can’t pass a background check—felons, the mentally ill, domestic abusers, teens. And law enforcement can’t stop it.
That led Chisholm to propose a three-part firearm reform package that includes background checks for stranger-to-stranger sales of firearms; a strong concealed carry permitting system; and unifying federal and state laws on firearm and ammunition possession.
Chisholm’s proposed reforms generated controversy, since anti-gun-violence advocates and Chisholm’s fellow Democrats—who control the state Legislature—are fighting to preserve the ban on concealed carry (the Shepherd Express has also consistently supported the ban on concealed carry), even if they are open to background checks on gun sales and other measures.
Last week, Chisholm and Chief Deputy District Attorney Kent Lovern stopped by the Shepherd offices to explain why Wisconsin legislators should create a strict concealed carry permitting system—and why the state needs to act now. Here’s an excerpt of our conversation, but the expanded interview can be found at ExpressMilwaukee.com.
Shepherd: You recently proposed a firearm reform package that includes a concealed carry permitting system. As a prosecutor who has long been concerned about gun violence, why would you want to allow concealed carry in the state?
Chisholm: The package that I am advocating for is based on 10 years of really focused firearm violence prevention strategies. The reality is that Wisconsin’s CCW [carrying concealed weapons] statute, 941.23, has always been one of the most overbroad and constitutionally challengeable statutes in the country. At the same time, it’s been paired with one of the weakest penalties for committing the offense of CCW. So you’ve got really the worst of all worlds.
Shepherd: How did that happen?
Chisholm: The [DA’s] office made the improvident decision to prosecute a gentleman named [Munir] Hamdan back in 1999, before I took over as team captain of the gun unit. Hamdan was a store owner who had a gun underneath his store counter, and when the officer went [into his store] and found the gun, he brought him in to prosecute for CCW.
That implicated the Wisconsin right to keep and bear arms amendment. In the Supreme Court decision, the court upheld the constitutionality of the CCW statute, but barely so. What [the court] basically said was [that the Legislature] needs to start looking very closely at this law and figure out what [it is] going to do with this in the future. But what we’ve done is nothing. So we’ve been living on borrowed time. And that time is up now.
Shepherd: Why is this so urgent?
Chisholm: That time is up because of the U.S. Supreme Court decision in Heller [District of Columbia v. Heller, decided in 2008, which overturned a gun ban in Washington, D.C.], which I believe will now be reinforced by McDonald v. Chicago [a case the Supreme Court will hear early next year, which challenges the constitutionality of state or local gun regulations]. We are truly living on borrowed time.
Shepherd: What should the state Legislature do?
Chisholm: I want certain things out of the Legislature right now that would make our community much safer. The reform package I’m looking for is threefold: One is we need to regulate what I call stranger-to-stranger gun sales. That means that anytime a person wants to permanently transfer a firearm to another person, they ought to be doing so through a licensed dealer so that we can do background checks and make sure that the person can own a gun.
Shepherd: How would that system work?
Chisholm: That means with reasonable exceptions—the most common being if you want to transfer a grandfather’s heirloom rifle to his grandson or granddaughter—that it would have to be brokered. … Then you would get that transaction brokered through a dealer so we can make sure that the person getting the gun isn’t prohibited from having a gun. We’d also make it a felony offense for people to make straw purchases of guns for other individuals.
Shepherd: Why do you believe background checks are so important?
Chisholm: It’s as simple as this. Under the current system a person can walk into a store, purchase a gun, walk outside the store and say, “I don’t like the color of this gun,” and they can give it to whoever they want to give it to and there is nothing illegal about it as long as they know that person isn’t prohibited, which is impossible to prove, and if they know that the person is of legal age to possess a gun. As long as they can make a good-faith assertion to that, there is nothing that I can prosecute.
I hear people say I should more aggressively prosecute these sales. But the problem is that the law is so incredibly open. If people actually know their rights it would be virtually impossible to prosecute someone. They can say, “Yes I bought that gun and I intended to keep it for myself, but I went home and realized that it was a sort of improvident decision to buy a gun so I decided to sell it and use the money to buy food for my kids. So I went to my neighbor and I took $50 off and I got $300 back.” That would be an unprovable case [for prosecutors].
Shepherd: What’s the second reform?
Chisholm: I want to make concealed carry a felony offense. In order to do that you would have to create some form of a permitting system so someone could legally carry a concealed weapon and those who did [illegally carry a concealed weapon] would face felony consequences.
Shepherd: Why should concealed carry become a felony offense?
Chisholm: Now [as a misdemeanor] you could get caught 100 times and you could still walk into a gun store and buy a gun. From my perspective, we prosecute 350 to 400 people every year for carrying concealed weapons. Every single one of those individuals would be prohibited from owning a firearm in the future if it was a felony offense. I said, make it 25 and older. You can’t get a CCW permit until you’re beyond the silly stage. And you’d have to pass background checks and get trained. You can quibble over the standards of use for the permit system. But I know from my experience that we would get more out of a felonized CCW statute than we would from a misdemeanor statute.
Shepherd: What’s the third part of your proposal?
Chisholm: We need to incorporate all of the federal prohibitions that exist right now on possession of a firearm by people who have been adjudicated for mental illness or domestic violence. Or if they possess any ammunition, which is a key point. The thing that does the damage is the bullet. Under the federal system, if you are a convicted felon, you cannot possess ammunition. If you incorporated the federal prohibition into state law it would be perfect. Then I think we would have model legislation for the state. This is an opportunity to engage people and create a package of legislation that could make Wisconsin a national model.
Shepherd: What would happen if the state Legislature doesn’t act on these reforms?
Chisholm: I’m going to make a prediction right now because I don’t know if we have the will and the foresight to do this but I predict that nothing will happen and that Chicago vs. McDonald will hold that the Second Amendment is incorporated into the 14th Amendment [and call into question other state and local gun laws]. Then 20 seconds later the NRA will file a challenge to [Wisconsin’s concealed carry statute] and they will win. And at that point in time we will be left with no CCW and no regulatory scheme at all. That’s what I think will happen.
We’ve sent such deeply contradictory messages to people on firearms over the years. I have found it frustrating and other prosecutors find it frustrating. What we need to do is to come up with a comprehensive package of firearms reforms that would satisfy everyone’s major concerns. It’s doable. It’s an achievable goal if we just focus on what’s best for the state.
Shepherd: One major source of guns ultimately used in crimes and of “straw purchases” of firearms is Badger Outdoors, based in West Milwaukee. How does law enforcement ensure that the store’s right to sell guns doesn’t harm public safety?
Chisholm: I’ve always been fair and balanced with Badger. I’ve always acknowledged the good things that they’ve done and their work with law enforcement. What I’ve become increasingly concerned about in recent years is that they are engaged in a business practice, a deliberate business model, that makes it easy for people to quickly transfer guns to the illegal market.
If I were sitting behind that counter there would be a list of maybe ten questions that I would ask any potential customer. This would be based on my own familiarity of firearms and the law and the way they get into the illegal market. I would ask questions that would very quickly let me know whether I have a legitimate purchaser or someone who was intending to get rid of that gun fairly quickly and has no intention of keeping it themselves. They are experts in the field. It’s their business. They know everything there is to know about firearms and their accessories and what would be a good indicator of a straw purchases.
The other thing is that other licensed firearms dealers don’t have near the number of crime guns that Badger has. Some of them sell high-end stuff and have a different clientele, but the reality is that in our experience they are much more proactive in stopping what they see are suspicious sales, and asking that next question.
“You say you want a 40-caliber high-point semi-automatic? Why do you want that gun?” “Well, I want it for something.” “That’s great. Do you want a holster too? We offer training. We have courses for $100. Do you want some training?” “No I’m not interested in training.” “Do you have kids in the house?” “Yeah, I’ve got kids in the house.” “Really? And you still don’t want training?” “No, I don’t want training.”
These are the questions they should be asking and they could very quickly assess whether that person has any intention of keeping that gun. I’m convinced that some of them don’t ask those questions. They just ask what the customer wants and if they have the money and whether they have any criminal convictions. Then give them the gun. But that’s not being a good public citizen.
They’re making their living and raising their families on the proceeds that they do engage in a legitimate business. They ought to consider themselves part of this community and be a good public citizen, just as we ask other businesses [to do so]. They derive benefit from the people of Milwaukee and they ought to have an obligation to those people as well.
Their business practices are resulting in cops being shot and a high proportion of their guns being used in homicides. They ought to be asking what they can do to change their practices to make them a better citizen of this community.
Shepherd: Have the recent police shootings made Badger’s owner Adam Allen more aware of the need to change the store’s business practices?
Chisholm: We get lip service. Only time will tell. But I think he’s on notice that our patience is being exhausted on this. We’re so deeply concerned about what we’re seeing. Clearly the tone of our discussions with him have changed.
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