2021 WI 1
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP594-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Leevan Roundtree,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 387 Wis. 2d 685,
928 N.W.2d 806
(2019 – unpublished)
OPINION FILED: January 7, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 11, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William S. Pocan & David A. Hansher
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY,
JJ., joined. DALLET, J., filed a concurring opinion, in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Kaitlin A. Lamb assistant state public defender. There
was an oral argument by Kaitlin A. Lamb.
For the plaintiff-respondent, there was a brief filed by
Sarah L. Burgundy¸ assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sarah L. Burgundy.
2021 WI 1
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP594-CR
(L.C. No. 2015CF4729)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JAN 7, 2021
Leevan Roundtree,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY,
JJ., joined. DALLET, J., filed a concurring opinion, in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a
dissenting opinion.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Leevan
Roundtree, seeks review of an unpublished per curiam decision of
the court of appeals affirming his judgment of conviction and
No. 2018AP594-CR
the denial of his motion for postconviction relief.1 He asserts
that the felon-in-possession statute under which he was
convicted is unconstitutional as applied to him.
¶2 Specifically, Roundtree contends that Wisconsin's
lifetime firearm ban for all felons is unconstitutional as
applied to him because his conviction over ten years ago for
failure to pay child support does not justify such a ban. He
maintains that the conviction was for a nonviolent felony and
that no public safety objective is served by preventing him from
owning a firearm.
¶3 The parties disagree as to the level of scrutiny that
we should employ to resolve this constitutional challenge.
Roundtree advances that we should subject the statute to the
requirements of a strict scrutiny review. The State counters
that the application of intermediate scrutiny is consistent with
precedent.
¶4 We determine that Roundtree's challenge to the felon-
in-possession statute (Wis. Stat. § 941.29(2) (2013-14)2)
requires the application of an intermediate level of scrutiny.
State v. Roundtree, No. 2018AP594-CR, unpublished slip op.
1
(Wis. Ct. App. Apr. 4, 2019) (per curiam) (affirming the
judgment and order of the circuit court for Milwaukee County,
William S. Pocan and David A. Hansher, Judges).
All subsequent references to the Wisconsin Statutes are to
2
the 2013-14 version unless otherwise indicated.
Although Roundtree was convicted pursuant to Wis. Stat.
§ 941.29(2), that subsection has since been repealed, with the
substance of the former § 941.29(2) now residing in
Wis. Stat.
§ 941.29(1m) (2017-18). See 2015 Wis. Act 109, §§ 6, 8.
2
No. 2018AP594-CR
Under such an intermediate scrutiny analysis, we conclude that
his challenge fails. The statute is constitutional as applied
to Roundtree because it is substantially related to important
governmental objectives, namely public safety and the prevention
of gun violence.
¶5 Accordingly, we affirm the decision of the court of
appeals.
I
¶6 In 2003, Roundtree was convicted of multiple felony
counts of failure to support a child for more than 120 days. 3 As
a consequence of these felony convictions, Roundtree was, and
continues to be, permanently prohibited from possessing a
firearm.
¶7 Milwaukee police executed a search warrant at
Roundtree's home on October 30, 2015. Under his mattress,
officers located a revolver and ammunition. A record check of
the recovered gun revealed that it had been stolen in Texas.
Roundtree claimed that "he purchased the firearm from a kid on
the street about a year ago, but that he did not know it was
stolen."
¶8 The State charged Roundtree with a single count of
possession of a firearm by a felon contrary to Wis. Stat.
§ 941.29(2). He pleaded guilty and was subsequently sentenced
to 18 months of initial confinement and 18 months of extended
supervision.
3 See Wis. Stat. § 948.22(2) (2003-04).
3
No. 2018AP594-CR
¶9 Roundtree moved for postconviction relief, arguing
that Wis. Stat. § 941.29(2), the felon-in-possession statute,
was unconstitutional as applied to him. The circuit court held
the motion in abeyance pending the United States Supreme Court's
decision in Class v. United States,
138 S. Ct. 798, 803 (2018),
which determined that a federal criminal defendant does not
waive a constitutional challenge to the statute of conviction on
direct appeal by entering a guilty plea.4
¶10 After the issuance of the Class opinion, the circuit
court ultimately determined that Roundtree waived his
constitutional challenge by entering a guilty plea.
Consequently, the circuit court denied Roundtree's motion for
postconviction relief.5
¶11 Roundtree appealed, and the court of appeals affirmed,
albeit on different grounds. State v. Roundtree, No. 2018AP594-
CR, unpublished slip op. (Wis. Ct. App. Apr. 4, 2019) (per
curiam). Instead of resting on the guilty plea waiver rule, the
court of appeals determined that "regardless of whether
Roundtree forfeited the constitutional argument by entering a
guilty plea, . . . the argument fails on its merits." Id., ¶5.
4The "guilty plea waiver rule" refers to the general rule
that a guilty, no contest, or Alford plea waives all
nonjurisdictional defects, including constitutional claims.
State v. Kelty, 2006 WI 101, ¶18,
294 Wis. 2d 62,
716
N.W.2d 886; see North Carolina v. Alford,
400 U.S. 25 (1970).
5The order denying the postconviction motion was entered by
the Honorable David A. Hansher. The Honorable William S. Pocan
accepted Roundtree's plea and entered the judgment of
conviction.
4
No. 2018AP594-CR
By way of explanation on the merits, the court of appeals
expounded, "Roundtree's notion that his particular nonviolent
felony matters is incorrect. Rather, it is settled law that the
firearm ban applies regardless of the defendant's particular
felony." Id., ¶7. Like the court of appeals, we, too,
determine that Roundtree's argument fails on its merits, and
therefore we need not address whether he waived his
constitutional challenge.6
II
¶12 Roundtree asks us to review whether Wis. Stat.
§ 941.29(2) is unconstitutional as applied to him. Examining
the constitutional application of a statute presents a question
of law that this court reviews independently of the
determinations rendered by the circuit court or court of
appeals. State v. McGuire,
2010 WI 91, ¶25,
328 Wis. 2d 289,
786 N.W.2d 227.
¶13 In our review, we must also determine the appropriate
level of scrutiny to guide our analysis. This issue likewise
presents a question of law that we determine independently. See
6Roundtree contends that Wisconsin's use of the guilty plea
waiver rule was altered by the Court's recent decision in Class
v. United States, 138 S. Ct. 798 (2018). The Class Court
determined that a guilty plea by itself does not bar a federal
criminal defendant from challenging the constitutionality of the
statute of conviction on direct appeal.
Id. at 803. Roundtree
asserts that, like the defendant in Class, he should be allowed
to challenge the government's power to criminalize his conduct
in spite of his guilty plea. The State disagrees, arguing that
Class applies in federal court only and that it does not extend
to as-applied challenges.
5
No. 2018AP594-CR
Brandmiller v. Arreola, 199 Wis. 2d 528, 536-37, 540-41,
544
N.W.2d 894 (1996).
III
¶14 We begin by setting forth Roundtree's argument and
some necessary background regarding the individual right to bear
arms. Subsequently, we determine the level of scrutiny under
which we examine the felon-in-possession statute. Finally, we
apply the appropriate level of scrutiny.
A
¶15 Roundtree was convicted of possession of a firearm by
a felon contrary to Wis. Stat. § 941.29(2)(a), which provides
that a person convicted of a felony in this state "is guilty of
a Class G felony if he or she possesses a firearm under any of
the following circumstances . . . ." The circumstance
applicable here is that "[t]he person possesses a firearm
subsequent to the conviction for the felony or other crime, as
specified in sub. (1)(a) or (b)." § 941.29(2)(a).
¶16 This statute, as Roundtree correctly observes, bars a
person convicted of any felony from firearm possession after
that conviction without exception, with no time limitation, and
with no mechanism for restoration of the right to possess a
firearm. The statute does not draw any distinctions among
felonies. Those convicted of less serious felonies are banned
from possessing firearms just as are those convicted of the most
serious felonies.
¶17 In Roundtree's estimation, this statutory scheme is
unconstitutional as applied to him. There are two major types
6
No. 2018AP594-CR
of constitutional challenges: facial and as-applied. Michels
v. Lyons, 2019 WI 57, ¶11,
387 Wis. 2d 1,
927 N.W.2d 486. A
party challenging a law as unconstitutional on its face must
show that the law cannot be constitutionally enforced under any
circumstances.
Id. (citation omitted).
¶18 In contrast, in an as-applied challenge, the court
assesses the merits of the challenge by considering the facts of
the particular case before it. State v. Wood, 2010 WI 17, ¶13,
323 Wis. 2d 321,
780 N.W.2d 63. For an as-applied challenge to
succeed, the challenger must demonstrate that the challenger's
constitutional rights were actually violated.
Id. If such a
violation occurred, the operation of the law is void as to the
facts presented for the party asserting the claim.
Id. We
presume that the statute is constitutional, and the party
raising a constitutional challenge must prove that the
challenged statute has been applied in an unconstitutional
manner beyond a reasonable doubt. Id., ¶15.
¶19 Roundtree's as-applied challenge is based on the
contention that his conviction for failure to pay child support
is a nonviolent felony and thus is insufficient to curtail his
constitutional right to bear arms. He argues that "[d]isarming
[him] does not in any way advance public safety, but deprives
him of his right to keep and bear arms for self-defense." As
this is an as-applied challenge, he must demonstrate that his
constitutional rights specifically were violated, not that the
statute is unconstitutional in all applications.
7
No. 2018AP594-CR
B
¶20 We begin our assessment of Roundtree's claim with some
background on the right to bear arms. Both the United States
and Wisconsin Constitutions provide for this right. U.S. Const.
amend. II; Wis. Const. art. I, § 25.7
¶21 The United States Supreme Court has made clear that
"[l]ike most rights, the right secured by the Second Amendment
is not unlimited." District of Columbia v. Heller, 554 U.S.
570, 626 (2008). The same is true of the right provided by our
State Constitution. Moran v. DOJ,
2019 WI App 38, ¶48,
388
Wis. 2d 193,
932 N.W.2d 430. Indeed, the Second Amendment
secures "the right of law-abiding, responsible citizens to use
arms in defense of hearth and home." Heller,
554 U.S. at 635.
¶22 In Heller, the Court struck down a regulation barring
residential handgun possession as contrary to the Second
Amendment. Id. In doing so, the Court observed "that the
Second Amendment conferred an individual right to keep and bear
arms."
Id. at 595. It was careful, however, to delineate the
reach of its analysis:
[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive
7 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." Its Wisconsin counterpart,
art. I, § 25, sets forth: "The people have the right to keep
and bear arms for security, defense, hunting, recreation or any
other lawful purpose."
8
No. 2018AP594-CR
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.
Id. at 626-27.
¶23 The Court identified such regulations as
"presumptively lawful," id. at 627 n.26, and reiterated the same
assessment two years later in McDonald v. City of Chicago, 561
U.S. 742, 786 (2010) ("We made it clear in Heller that our
holding did not cast doubt on such longstanding regulatory
measures as 'prohibitions on the possession of firearms by
felons and the mentally ill,' 'laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.' We repeat those assurances here.")
(internal citations omitted).
¶24 It is the juxtaposition of the United States Supreme
Court's stated limitations on the Second Amendment individual
right to bear arms, as well as the felon-in-possession statute's
presumed lawfulness, that guides our analysis.
IV
A
¶25 With this necessary background in hand, we next
identify the appropriate level of scrutiny that frames our
analysis.
¶26 The parties here disagree as to the level of means-end
scrutiny that should be applied. Roundtree contends that we
should subject Wis. Stat. § 941.29(2) to strict scrutiny. He
bases this argument on language in the Seventh Circuit's
9
No. 2018AP594-CR
decision in Ezell v. City of Chicago which indicates that "the
rigor of . . . judicial review will depend on how close the law
comes to the core of the Second Amendment right and the severity
of the law's burden on the right." Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011). Under this framework,
Roundtree argues that § 941.29(2) severely burdens the core of
the Second Amendment right because it completely restricts the
right to bear arms, thus necessitating strict scrutiny review.
¶27 In order to survive strict scrutiny, a statute must
be narrowly tailored to advance a compelling state interest.
Monroe Cnty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶17,
271 Wis. 2d 51,
678 N.W.2d 831. Strict scrutiny is an exacting
standard, and it is the rare case in which a law survives it.
State v. Baron,
2009 WI 58, ¶48,
318 Wis. 2d 60,
769 N.W.2d 34.
¶28 The State disagrees and advocates for the application
of intermediate scrutiny. In the State's view, such an
application would be consistent with the language of Heller and
its interpretation by both the court of appeals of this state
and the Seventh Circuit. See State v. Pocian, 2012 WI App 58,
¶11,
341 Wis. 2d 380,
814 N.W.2d 894 (citing United States v.
Skoien,
614 F.3d 638, 639, 641-42 (7th Cir. 2010) (en banc) ("In
a case decided after Heller and McDonald, the Seventh Circuit
Court of Appeals utilized an 'intermediate scrutiny' analysis
and applied it to a constitutional challenge to a federal law
prohibiting an individual convicted of misdemeanor domestic
violence from carrying a firearm in or affecting interstate
commerce."). Pursuant to an intermediate scrutiny analysis, we
10
No. 2018AP594-CR
ask whether a law is substantially related to an important
governmental objective. Id.
¶29 We agree with the State that intermediate scrutiny is
the appropriate inquiry to guide our analysis. First, Heller
clearly requires more than mere rational basis review of laws
that are alleged to burden Second Amendment rights. Heller, 554
U.S. at 628 n.27. "If all that was required to overcome the
right to keep and bear arms was a rational basis, the Second
Amendment would be redundant with the separate constitutional
prohibitions on irrational laws, and would have no effect."
Id.
¶30 Second, the intermediate scrutiny approach lends
vitality to the Heller court's statement that felon
dispossession statutes are "presumptively lawful." Kanter v.
Barr, 919 F.3d 437, 448 (7th Cir. 2019). To subject a
"presumptively lawful" statute to strict scrutiny would in
effect remove the operation of such a presumption. As stated,
strict scrutiny is a steep hill to climb.
¶31 Our conclusion is consistent with that of other courts
that have considered the question. Indeed, federal courts
around the country have interpreted the above-cited language
from Heller as indicative of requiring an intermediate scrutiny
analysis when examining Second Amendment challenges. See, e.g.,
Skoien, 614 F.3d at 641-42; Kanter,
919 F.3d at 448; United
States v. Marzzarella,
614 F.3d 85, 97 (3d Cir. 2010).
¶32 The Wisconsin Court of Appeals has taken the same
approach. In both Pocian, 341 Wis. 2d 380, ¶¶11-12, and State
v. Culver,
2018 WI App 55, ¶37,
384 Wis. 2d 222,
918 N.W.2d 103,
11
No. 2018AP594-CR
the court of appeals applied intermediate scrutiny to as-applied
challenges to the felon-in-possession statute. Support for the
use of intermediate scrutiny is thus plentiful in the case law
and accepting Roundtree's position would necessitate overruling
both Pocian and Culver, which we decline to do.
¶33 In contrast, Roundtree points us to no case in which
an appellate court has applied strict scrutiny to a Second
Amendment challenge to a felon-in-possession statute.8 Absent
any such application of strict scrutiny in Wisconsin or
elsewhere in this type of case, we decline to break new ground.9
We acknowledge that strict scrutiny has been applied to
8
related federal statutes, but none of those cases finds purchase
here. In United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-
32 (D. Utah 2009), the District Court applied strict scrutiny to
the federal statute prohibiting firearm possession by a person
convicted of a "misdemeanor crime of domestic violence." See
18
U.S.C. § 922(g)(9). Similarly, in Tyler v. Hillsdale Cnty.
Sheriff's Dep't,
775 F.3d 308, 328-29 (6th Cir. 2014), reh'g en
banc granted, opinion vacated (Apr. 21, 2015), the Sixth Circuit
applied strict scrutiny to
18 U.S.C. § 922(g)(4)'s dispossession
of a person "who has been committed to a mental institution."
Tyler largely based its application of strict scrutiny on
citation to separate writings in other cases, and in any event
the opinion has been vacated. Id. at 328-29. Likewise,
Engstrum is of little value here because the restriction it
addressed was based on a misdemeanor, not a felony.
Justice Rebecca Grassl Bradley's dissent would apply
9
strict scrutiny, citing this court's decision in Mayo v.
Wisconsin Injured Patients and Families Compensation Fund, 2018
WI 78, ¶28,
383 Wis. 2d 1,
914 N.W.2d 678. Justice Rebecca
Grassl Bradley's dissent, ¶¶73-74. However, Mayo is
inapplicable here.
12
No. 2018AP594-CR
¶34 We are likewise unpersuaded by the argument Roundtree
makes pursuant to the Seventh Circuit's decision in Ezell, 651
In Mayo, an equal protection case regarding the
constitutionality of medical malpractice damage caps, the
majority of the court overruled the "rational basis with teeth"
standard from Ferdon ex rel. Petrucelli v. Wisconsin Patients
Compensation Fund, 2005 WI 125,
284 Wis. 2d 573,
701 N.W.2d 440.
Mayo,
383 Wis. 2d 1, ¶32. The "rational basis with teeth"
standard from Ferdon, although similar, is different from
intermediate scrutiny. (continued)
The Ferdon court set forth that "rational basis with teeth"
"focuses on the legislative means used to achieve the ends.
This standard simply requires the court to conduct an inquiry to
determine whether the legislation has more than a speculative
tendency as the means for furthering a valid legislative
purpose." Ferdon, 284 Wis. 2d 573, ¶78. Intermediate scrutiny,
on the other hand, asks whether a law is "substantially related
to an important governmental objective." State v. Pocian,
2012
WI App 58, ¶11,
341 Wis. 2d 380,
814 N.W.2d 894 (citation
omitted).
Importantly, the Ferdon court explicitly disclaimed that it
was applying intermediate scrutiny. It stated that rational
basis was the "appropriate level of scrutiny in the present
case," clearly evidencing a distinction between intermediate
scrutiny and "rational basis with teeth." See Ferdon, 284
Wis. 2d 573, ¶¶63-65.
Further, the Mayo court specifically stated that it was
addressing levels of scrutiny for equal protection challenges.
Mayo, 383 Wis. 2d 1, ¶28. Roundtree's challenge is not based on
the equal protection clause, but on a purported abridgement of
his Second Amendment rights.
The intermediate scrutiny standard thus is well established
and retains vitality. In 1996, a unanimous court first adopted
and applied the intermediate scrutiny analysis in a challenge to
a cruising ordinance as violative of the constitutional right to
travel. See Brandmiller v. Arreola, 199 Wis. 2d 528, 540-41,
544 N.W.2d 894 (1996). More recently, in State v. Culver,
2018
WI App 55, ¶37,
384 Wis. 2d 222,
918 N.W.2d 103, the court of
appeals, post-Mayo, addressed the same question at issue here
and applied intermediate scrutiny.
13
No. 2018AP594-CR
F.3d 684. He bases this argument on the Ezell court's statement
that "the rigor of . . . judicial review will depend on how
close the law comes to the core of the Second Amendment right
and the severity of the law's burden on the right." Id. at 703.
In Roundtree's view, the felon-in-possession statute implicates
the core Second Amendment right and severely burdens such a
right, necessitating the most rigorous level of scrutiny.
¶35 However, this argument rests on a faulty premise. As
the Seventh Circuit explained in Kanter, less than strict
scrutiny review is appropriate here because "the weight of the
historical evidence . . . suggests that felon dispossession laws
do not restrict the 'core right of armed defense,' but rather
burden 'activity lying closer to the margins of the right.'"
Kanter, 919 F.3d at 448 n.10. Instead, the core right
identified in Heller is "the right of a law-abiding, responsible
citizen to possess and carry a weapon for self-defense . . . ."
United States v. Chester,
628 F.3d 673, 683 (4th Cir. 2010)
(emphasis removed).
¶36 Like the Seventh Circuit in Kanter, we need not
conclusively determine the scope of the historical protections
of the Second Amendment. Kanter, 919 F.3d at 447; see infra,
¶41. But also like the Seventh Circuit in Kanter, we are not
persuaded that the core Second Amendment right is implicated so
as to require strict scrutiny review.
14
No. 2018AP594-CR
¶37 Accordingly, we determine that Roundtree's challenge
to Wis. Stat. § 941.29(2) requires the application of an
intermediate level of scrutiny.10
B
¶38 We next apply intermediate scrutiny to the felon-in-
possession statute considering the facts of this case.
¶39 Generally, Second Amendment challenges require this
court to undertake a two-step approach. State v. Herrmann, 2015
WI App 97, ¶9,
366 Wis. 2d 312,
873 N.W.2d 257. We ask first
"whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment's guarantee."
Id.
(quoting Marzzarella,
614 F.3d at 89). If the answer is no,
then the inquiry ends.
Id.
¶40 If the first inquiry is answered in the affirmative,
then the court proceeds to inquire into "the strength of the
government's justification for restricting or regulating the
exercise of Second Amendment rights." Id. (quoting Ezell,
651
F.3d at 703).
10We observe that defendants around the country who raise
as-applied challenges to felon-in-possession statutes will face
an uphill climb. See Pocian, 341 Wis. 2d 380, ¶12 (explaining
that as of the writing of that opinion, "[n]o state law banning
felons from possessing guns has ever been struck down").
(continued)
Of those federal circuits that have not foreclosed such
challenges entirely, only one has ever upheld an as-applied
Second Amendment challenge to the federal statute banning
firearm possession by certain individuals convicted of crimes.
See Binderup v. Att'y Gen. U.S., 836 F.3d 336 (3d Cir. 2016);
18
U.S.C. § 922(g); see also Kanter v. Barr,
919 F.3d 437, 442-44
(7th Cir. 2019).
15
No. 2018AP594-CR
¶41 The Seventh Circuit has described the historical
evidence as to whether felons were categorically excluded from
the Second Amendment's scope as "inconclusive." Kanter, 919
F.3d at 445. Accordingly, when faced with an as-applied
challenge to the federal felon-in-possession statute, the court
declined to resolve the first step of the inquiry and instead
relied on the dispositive second step——the application of a
means-end scrutiny analysis.
Id. at 447. We take a similar
approach here.
¶42 Like the court in Kanter, we assume that the felon-in-
possession statute burdens conduct falling within the scope of
the Second Amendment's guarantee in order to reach the
dispositive issue. Our inquiry, then, focuses on whether the
statute at issue is substantially related to an important
governmental objective.
¶43 As other courts in this state and elsewhere have done,
we recognize public safety generally, and preventing gun
violence specifically, as important governmental objectives.
See Pocian, 341 Wis. 2d 380, ¶15; Kanter,
919 F.3d at 448.
Indeed, "[p]ublic safety and the protection of human life is a
state interest of the highest order." State v. Miller,
196
Wis. 2d 238, 249,
538 N.W.2d 573 (Ct. App. 1995).
¶44 Roundtree protests that he should not be prohibited
from firearm possession because his felony conviction did not
involve violence. He claims that the nature of his conviction
and the fact that it is remote in time weigh in favor of a
16
No. 2018AP594-CR
determination that Wis. Stat. § 941.29(2) is unconstitutional as
applied to him.
¶45 We are not persuaded that the specific facts of
Roundtree's case compel such a conclusion. Roundtree was
convicted of failure to support a child for over 120 days. In
his view, this is different in kind from the crime at issue in
Pocian, where the defendant was convicted of uttering a forgery
as the underlying felony. Put frankly, he suggests that failing
to pay child support is not as bad as "physically taking a
victim's property."
¶46 But failure to pay child support is every bit as
serious as uttering a forgery if not more so. Those who fail to
make support payments deprive the very people they should be
protecting most, their own children, from receiving basic
necessities. Roundtree chose to keep money for himself that
rightly belonged to his children. And, to further add to the
egregiousness of his offense, he committed this crime repeatedly
by failing to support for at least 120 days. By all accounts
this is a serious offense.
¶47 Simply because his crime was not physically violent in
nature, it does not follow that the felon-in-possession statute
cannot be constitutionally applied to Roundtree. The Seventh
Circuit determined as much in Kanter when it concluded that "the
government has shown that prohibiting even nonviolent felons
like Kanter from possessing firearms is substantially related to
its interest in preventing gun violence." Kanter, 919 F.3d at
17
No. 2018AP594-CR
448. The legislature did not in Wis. Stat. § 941.29(2) create a
hierarchy of felonies, and neither will this court.
¶48 Even in the case of those convicted of nonviolent
felonies, "someone with a felony conviction on his record is
more likely than a nonfelon to engage in illegal and violent gun
use." United States v. Yancey, 621 F.3d 681, 685 (7th Cir.
2010). Thus, even if a felon has not exhibited signs of
physical violence, it is reasonable for the State to want to
keep firearms out of the hands of those who have shown a
willingness to not only break the law, but to commit a crime
serious enough that the legislature has denominated it a felony,
as Roundtree has here.
¶49 The State has cited an abundance of research to
support this conclusion. "Other courts addressing this issue
have observed that nonviolent offenders not only have a higher
recidivism rate than the general population, but certain groups—
—such as property offenders——have an even higher recidivism rate
than violent offenders, and a large percentage of the crimes
nonviolent recidivists later commit are violent." Kaemmerling
v. Lappin, 553 F.3d 669, 683 (D.C. Cir. 2008) (citing Ewing v.
California,
538 U.S. 11, 26 (2003)).
¶50 As the Kanter court noted, several studies "have found
a connection between nonviolent offenders . . . and a risk of
future violent crime." Kanter, 919 F.3d at 449.
For example, one study of 210,886 nonviolent offenders
found that about one in five were rearrested for a
violent crime within three years of his or her
release. See U.S. Dep't of Justice, Bureau of Justice
18
No. 2018AP594-CR
Statistics Profile of Nonviolent Offenders Exiting
State Prisons 2, 4 (2004). A separate study found
that 28.5 percent of nonviolent property offenders——a
category that includes fraud convictions——were
rearrested for a violent offense within five years of
their release. See Matthew R. Durose, et al., U.S.
Dep't of Justice, Bureau of Justice Statistics,
Recidivism of Prisoner Released in 30 States in 2005:
Patterns from 2005 to 2010, at 9 (2014). Yet another
study found that "even handgun purchasers with only 1
prior misdemeanor conviction and no convictions for
offenses involving firearms or violence were nearly 5
times as likely as those with no prior criminal
history to be charged with new offenses involving
firearms or violence." Garen J. Wintemute, et al.,
Prior Misdemeanor Convictions as a Risk Factor for
Later Violent and Firearm-Related Criminal Activity
Among Authorized Purchasers of Handguns, 280 J. Am.
Med. Ass'n 2083, 2083 (1998) (emphasis added).
Id.
¶51 Such assertions are echoed by data from the Wisconsin
Department of Corrections (DOC). For example, DOC data indicate
that among recidivists who committed public order offenses, such
as failure to pay child support, and were released from prison
in 2011, 21.4 percent recidivated with a violent offense.
Joseph R. Tatar II & Megan Jones, Recidivism after Release from
Prison, Wis. Dep't of Corrections, at 14 (August 2016),
https://doc.wi.gov/DataResearch/InteractiveDashboards/Recidivism
AfterReleaseFromPrison_2.pdf. As the State strikingly observes
in its brief, "the 21.4 percent rate of public order offenders
recidivating with a violent crime was higher than that of
property offenders (16 percent) and drug offenders (17.9
percent). And it was just seven percentage points lower than
the rate of violent offenders (28.3 percent)." This data is
surely sufficient to support a substantial relation between
19
No. 2018AP594-CR
keeping firearms out of the hands of those convicted of
nonviolent felonies and the public safety objective of
preventing gun violence.
¶52 Further, the fact that Roundtree's conviction occurred
over ten years ago does not affect the result. Roundtree
asserts that he poses no danger to public safety and should be
able to possess a firearm as a result. However, the record
indicates that the gun Roundtree possessed was stolen and
purchased off the street. Supporting street level gun commerce
is hardly the benign action Roundtree would have us believe it
is.
¶53 In sum, we determine that Roundtree's challenge to the
felon-in-possession statute (Wis. Stat. § 941.29(2)) requires
the application of an intermediate level of scrutiny. Under
such an intermediate scrutiny analysis, we conclude that the
felon-in-possession statute is constitutional as applied to
Roundtree because the statute in question is substantially
related to important governmental objectives, namely public
safety and the prevention of gun violence.
¶54 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
20
No. 2018AP594-CR.rfd
¶55 REBECCA FRANK DALLET, J. (concurring). I write
separately to address the unanswered question of whether by
pleading guilty Roundtree waived his as-applied challenge to the
constitutionality of Wis. Stat. § 941.29(2). I conclude that,
following Class v. United States,
583 U.S. ___,
138 S. Ct. 798
(2018), he did not.
¶56 Generally, a defendant who pleads guilty with the
assistance of reasonably competent counsel waives his right to
later raise an independent claim related to a deprivation of his
constitutional rights that occurred prior to his pleading
guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
The rationale behind this "guilty-plea-waiver rule" is that a
counseled guilty plea admits "all of the factual and legal
elements necessary to sustain a binding, final judgment of guilt
and a lawful sentence." United States v. Broce,
488
U.S. 563, 569 (1989).1
¶57 In order to balance efficient judicial administration
with the rights protected by the United States Constitution, the
United States Supreme Court has developed exceptions to the
guilty-plea-waiver rule for claims that implicate the State's
very power to prosecute the defendant, provided that a court can
resolve those claims without venturing beyond the record. See
id. at 574-76; Menna v. New York,
423 U.S. 61, 63 n.2 (1975)
We have interpreted this rule, like other waiver rules, to
1
be one of judicial administration that does not deprive an
appellate court of jurisdiction. See State v. Riekoff, 112
Wis. 2d 119, 123-24,
332 N.W.2d 744 (1983).
1
No. 2018AP594-CR.rfd
(per curiam) (guilty plea did not waive a constitutional
challenge under the Double Jeopardy Clause when the claim could
be resolved on the existing record); see also Blackledge v.
Perry, 417 U.S. 21, 30-31 (1974) (guilty plea did not foreclose
a defendant's habeas petition alleging "unconstitutional
vindictive prosecution" because the Due Process Clause precluded
the State from even prosecuting the defendant).
¶58 Although the guilty-plea-waiver rule arose in the
federal context, this court has steadfastly adopted that
precedent. See, e.g., State v. Kelty, 2006 WI 101, ¶42,
294
Wis. 2d 62,
716 N.W.2d 886; Hawkins v. State,
26
Wis. 2d 443, 448,
132 N.W.2d 545 (1965). Wisconsin courts have
broadened the federal exceptions, recognizing that a guilty plea
does not waive facial challenges to the constitutionality of the
statute of conviction. See, e.g., State v. Molitor,
210
Wis. 2d 415, 419 n.2,
565 N.W.2d 248 (Ct. App. 1997). This
court, however, has not yet extended that exception to as-
applied constitutional challenges. See State v. Cole,
2003
WI 112, ¶46,
264 Wis. 2d 520,
665 N.W.2d 328; State v.
Trochinski,
2002 WI 56, ¶34 n.15,
253 Wis. 2d 38,
644
N.W.2d 891. But following Class, the application of the guilty-
plea-waiver rule should no longer depend upon whether an appeal
challenging the constitutionality of a statute is classified as
facial or as-applied.
¶59 In Class, the United States Supreme Court applied an
exception to the guilty-plea-waiver rule to allow a defendant to
challenge the constitutionality of the statute of conviction on
2
No. 2018AP594-CR.rfd
appeal. 138 S. Ct. at 803-05. Class pleaded guilty to
unlawfully carrying a firearm on U.S. Capitol grounds, contrary
to
40 U.S.C. § 5104(e)(1), after the police had found three guns
in his car in a Capitol parking lot. On appeal, Class argued
that the statute violated his due-process rights since he did
not have fair notice that a parking lot was part of the Capitol
"grounds."
Id. at 802. Class also claimed that the statute
violated his Second Amendment rights because "Capitol Grounds"
included so broad an area that it was practically impossible to
lawfully carry a firearm anywhere within the District of
Columbia.
Id. In allowing both claims to proceed, the Court
rested its decision on its 150-year-old understanding of the
nature of a guilty plea:
The plea of guilty is, of course, a confession of all
the facts charged in the indictment, and also of the
evil intent imputed to the defendant. It is a waiver
also of all merely technical and formal objections of
which the defendant could have availed himself by any
other plea or motion. But if the facts alleged and
admitted do not constitute a crime against the laws of
the Commonwealth, the defendant is entitled to be
discharged.
Id. at 804 (quoting Commonwealth v. Hinds,
101 Mass. 209, 210
(1869)). The Court held that Class's guilty plea did not waive
his claims challenging the constitutionality of the statute of
conviction because those claims involved the State's ability to
constitutionally prosecute Class and did not contradict the
terms of the indictment or the written plea agreement. Id.
at 805.
¶60 Given the Court's analysis in Class, there is no
justification for continuing to treat as-applied challenges to
3
No. 2018AP594-CR.rfd
the constitutionality of the statute of conviction any
differently than facial challenges. After all, Class did not
hinge on the type of constitutional challenge being raised. See
United States v. Alarcon Sanchez, 972 F.3d 156, 166 n.3 (2d
Cir. 2020) ("Pursuant to the holding in Class, defendants have a
right to raise on appeal both as-applied and facial
constitutional challenges to the [statute of conviction].").
Indeed, when addressing the merits of Class's challenges on
remand, the D.C. Circuit Court of Appeals treated both of his
claims as as-applied challenges. See United States v.
Class, 930 F.3d 460 (D.C. Cir. 2019). But see State v.
Jackson,
2020 WI App 4, ¶¶8-9,
390 Wis. 2d 402,
938 N.W.2d 639
(noting that it was "not clear . . . whether Class'[s] challenge
was an as-applied or facial challenge"). Second, and more
importantly, the Court's reasoning in Class must apply equally
to facial and as-applied challenges because both types of
challenges "call into question the Government's power to
'constitutionally prosecute'" the defendant. Class,
138 S. Ct.
at 805 (quoting Broce,
488 U.S. at 575) (adding that whether a
constitutional challenge can be classified as "jurisdictional"
is also not dispositive).
¶61 This court should therefore adopt the holding in
Class, not only to remain consistent with United States Supreme
Court precedent but also to continue to strike the proper
balance between efficient judicial administration and the
protection of a defendant's constitutional rights. See
Kelty, 294 Wis. 2d 62, ¶27. It should be the law in Wisconsin
4
No. 2018AP594-CR.rfd
that a guilty plea does not waive a defendant's right to
challenge the statute of conviction's constitutionality,
facially or as applied, provided the challenge can be resolved
without contradicting the record. We should withdraw language
from Cole and Trochinski and clarify the court of appeals'
holding in Jackson to the extent that those decisions hold that
a defendant who pleads guilty waives his right to later raise an
as-applied constitutional challenge to the statute of
conviction.2
¶62 For the foregoing reasons, I respectfully concur.
¶63 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY joins this concurrence.
See State v. Cole, 2003 WI 112, ¶46,
264 Wis. 2d 520, 665
2
N.W.2d 328; State v. Trochinski,
2002 WI 56, ¶34 n.15,
253
Wis. 2d 38,
644 N.W.2d 891; State v. Jackson,
2020 WI App 4,
¶¶8-9,
390 Wis. 2d 402,
938 N.W.2d 639.
5
No. 2018AP594-CR.rgb
¶64 REBECCA GRASSL BRADLEY, J. (dissenting). The Second
Amendment 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. St. George Tucker, a pre-eminent
constitutional law scholar during the founding era, described
the Second Amendment as "the true palladium of liberty . . . .
The right of self defence is the first law of nature: in most
governments it has been the study of rulers to confine this
right within the narrowest limits possible. Wherever standing
armies are kept up, and the right of the people to keep and bear
arms is, under any colour or pretext whatsoever, prohibited,
liberty, if not already annihilated, is on the brink of
destruction." St. George Tucker, Blackstone's Commentaries 1:
App. 300 (1803). In plainer words, the Second Amendment is the
people's ultimate protection against tyranny.
¶65 Applying the original public meaning of this bulwark
of liberty, the United States Supreme Court more than a decade
ago finally dispelled the prevalent, but historically ignorant
notion that the Second Amendment protects merely a collective,
militia member's right. The Supreme Court declared the right to
keep and bear arms is "exercised individually and belongs to all
Americans"; accordingly, "the District [of Columbia]'s ban on
handgun possession in the home violates the Second
Amendment . . . ." District of Columbia v. Heller, 554 U.S.
570, 581, 635 (2008) (emphasis added). See also Letter from
Thomas Jefferson to James Madison (Dec. 20, 1787), in The Papers
1
No. 2018AP594-CR.rgb
of Thomas Jefferson, XII, 438-40 (Julian Boyd ed., 1950) ("Let
me add that a bill of rights is what the people are entitled to
against every government on earth, general or particular, [and]
what no just government should refuse or rest on inference.")
(emphasis added). Any encroachment upon this fundamental right
must withstand strict judicial scrutiny. Wisconsin Carry, Inc.
v. City of Madison, 2017 WI 19, ¶9,
373 Wis. 2d 543,
892 N.W.2d
233 (declaring the right to keep and bear arms to be "a species
of right we denominate as 'fundamental'"); Mayo v. Wisconsin
Injured Patients & Families Comp. Fund,
2018 WI 78, ¶28,
383
Wis. 2d 1,
914 N.W.2d 678 ("Strict scrutiny is applied to
statutes that restrict a fundamental right.").
¶66 Ignoring conclusive historical evidence to the
contrary, the majority upholds the constitutionality of
Wisconsin's categorical ban on the possession of firearms by any
person convicted of a felony offense,1 regardless of whether that
individual is dangerous. Under the majority's vision of what is
good for society, "even if a felon has not exhibited signs of
physical violence, it is reasonable for the State to want to
keep firearms out of the hands of those who have shown a
willingness to . . . break the law." Majority op., ¶48
(emphasis added). It may be "reasonable" to the majority but it
surely isn't constitutional. "The very enumeration of the right
takes out of the hands of government——even the Third Branch of
Government——the power to decide on a case-by-case basis whether
the right is really worth insisting upon. A constitutional
1 See Wis. Stat. § 941.29(1m).
2
No. 2018AP594-CR.rgb
guarantee subject to future judges' assessments of its
usefulness is no constitutional guarantee at all." Heller, 554
U.S. at 634 (emphasis in original). Centuries of history warned
the Founders that governments certainly wanted to keep arms out
of the hands of the citizenry in order to ease the establishment
of tyranny——and they often succeeded. It is for this very
reason that the Framers insisted on preserving the individual
right to keep and bear arms for all Americans.
¶67 Under Wis. Stat. § 941.29(1m), the State deprives
Leevan Roundtree of his fundamental constitutional right to keep
and bear arms, based solely on his failure to pay child support
more than ten years ago, with no showing that he poses a danger
to society. Applying the wrong standard of review, the majority
sidelines the United States Constitution, demotes the Second
Amendment to second-class status,2 and endorses a blanket ban on
one of our most fundamental constitutional liberties. In doing
so, the majority contravenes the original public meaning of the
Second Amendment. I dissent.
I
¶68 The Constitution takes precedence over any statute,
and any statute in conflict with the Constitution cannot stand.
"The [C]onstitution is either a superior, paramount law,
unchangeable by ordinary means, or it is on a level with
See McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)
2
("[R]espondents, in effect, ask us to treat the right recognized
in Heller as a second-class right, subject to an entirely
different body of rules than the other Bill of Rights guarantees
that we have held to be incorporated into the Due Process
Clause.").
3
No. 2018AP594-CR.rgb
ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former
part of the alternative be true, then a legislative act contrary
to the [C]onstitution is not law; if the latter part be true,
then written [C]onstitutions are absurd attempts on the part of
the people to limit a power in its own nature illimitable."
Marbury v. Madison, 5 U.S. 137, 177 (1803). Bearing in mind
that the Second Amendment protects the "first law of nature"——
the right to defend oneself——any infringement of the right must
be concordant with the Constitution and may replicate only those
restrictions society accepted at the founding. Permitting
restraints on the right to keep and bear arms that were never
contemplated by the Framers lends an illimitable quality to the
legislative power to regulate a fundamental right, thereby
deflating the primacy of the Constitution and imperiling the
liberty of the people.
¶69 Wisconsin Stat. § 941.29(1m) bans all felons from
possessing a firearm in this state: "[a] person who possesses a
firearm is guilty of a Class G felony if any of the following
applies: (a) [t]he person has been convicted of a felony in
this state, [or] (b) [t]he person has been convicted of a crime
elsewhere that would be a felony if committed in this state."
This felon dispossession statute draws no distinction between an
individual convicted of first-degree homicide and someone
convicted of "failing to comply with any record-keeping
requirement for fish" (a felony in this state). Wis. Stat.
§ 29.971(1)(c). Rather than the historically recognized
4
No. 2018AP594-CR.rgb
revocation of Second Amendment rights predicated on an
individual's dangerousness to society, the Wisconsin Legislature
instead rescinds those rights based merely on a felony
conviction, irrationally preserving the right to keep and bear
arms for both violent and dangerous citizens.
¶70 In 2003, Roundtree failed to pay child support for
more than 120 consecutive days, resulting in his conviction for
a felony under Wis. Stat. § 948.22(2). Roundtree was sentenced
to four years of probation and later paid his past due child
support. Nearly 13 years later, while executing a search
warrant on Roundtree's property, the police found a handgun
tucked beneath his mattress. The State charged Roundtree with
violating
Wis. Stat. § 941.29(1m).3 The majority concludes that
Roundtree's felony conviction for failure to timely pay child
support more than a decade earlier permanently forecloses his
individual Second Amendment rights. Although the United States
Supreme Court has never opined on the constitutionality of felon
dispossession laws, the majority reflexively follows federal
jurisdictions in upholding these laws, neglecting (as other
courts have) to conduct the historical analysis necessary to
ascertain the original public meaning of the Second Amendment in
this regard.
¶71 Troublingly, the majority applies intermediate
scrutiny to a statute that demands strict scrutiny review, while
3 Roundtree was actually convicted under Wis. Stat.
§ 941.29(2), but sub. (2) was subsequently repealed and replaced
with
Wis. Stat. § 941.29(1m). For consistency and to avoid
confusion, I use sub. (1m) throughout.
5
No. 2018AP594-CR.rgb
declining to discern whether the people who ratified the Bill of
Rights consented to the removal of the Second Amendment right
from non-violent felons. While legislatures have always had the
power to prohibit people who are dangerous from possessing
firearms, the Second Amendment does not countenance collectively
depriving all felons of their individual Second Amendment
rights. Such laws sweep too broadly, disarming those who pose
no danger to society. And if the professed purpose of felon
dispossession laws is "public safety and the prevention of gun
violence" as the majority describes,4 then Wisconsin's lawmakers
need to adjust their aim; Wis. Stat. § 941.29(1m) leaves violent
misdemeanants free to keep and bear arms.
¶72 Since the founding of our nation, Americans have
understood their right to keep and bear arms as fundamental to
the people's self-preservation and defense. Heller, 554 U.S. at
593-94 ("By the time of the founding, the right to have arms had
become fundamental for English subjects," citing Blackstone's
description of "the right of having and using arms for self-preservation and defence"). In Wisconsin Carry, this court
expressly recognized the right to keep and bear arms to be "a
species of right we denominate as 'fundamental,' reflecting our
understanding that it finds its protection, but not its source,
in our constitutions." 373 Wis. 2d 543, ¶9 (citations omitted).
During the ratifying conventions, "there was broad consensus
between Federalists and their opponents on the existence and
nature of the 'natural right' to keep and bear arms for
4 Majority op., ¶4.
6
No. 2018AP594-CR.rgb
defensive purposes." Binderup v. Atty. Gen. U.S. of America,
836 F.3d 336, 367 (3d Cir. 2016) (Hardiman, J., concurring).
Although we expound only the Second Amendment in this case, this
court has also deemed the people's right to keep and bear arms
protected under the Wisconsin Constitution5 to be a fundamental
right. 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."). Because Wis. Stat. § 941.29(1m)
restricts a fundamental right that predates and is "independent
of" the Constitution entirely, Wisconsin Carry,
373 Wis. 2d 543,
¶9, strict scrutiny must apply.
¶73 Inexplicably, but quite conveniently, the majority
opinion never mentions Wisconsin Carry, nor does it even utter
the word "fundamental." When a challenged statute impairs a
fundamental right, this court must apply a heightened level of
scrutiny. Very recently, this court articulated that "[s]trict
scrutiny is applied to statutes that restrict a fundamental
right." Mayo, 383 Wis. 2d 1, ¶28. Not only does the majority
disregard the nature of the right to keep and bear arms, it also
fails to apply Mayo, which hardly imposed a novel approach to
examining laws restricting fundamental rights. Strict scrutiny
has never been limited to equal protection challenges. We
recently reiterated that "[a] statute which directly and
substantially infringes upon a fundamental liberty interest must
withstand strict scrutiny: it must be narrowly tailored to
See Article 1, Section 25 of the Wisconsin Constitution:
5
"The people have the right to keep and bear arms for security,
defense, hunting, recreation or any other lawful purpose."
7
No. 2018AP594-CR.rgb
serve a compelling state interest." Matter of Visitation of
A.A.L., 2019 WI 57, ¶18,
387 Wis. 2d 1,
927 N.W.2d 486. See
also Burson v. Freeman,
504 U.S. 191, 199 (1992); Reno v.
Flores,
507 U.S. 292, 301-02 (1993). Strict scrutiny applies
"when a statute impinges on a 'fundamental right' or creates a
classification that 'operates to the peculiar disadvantage of a
suspect class.'" Metropolitan Associates v. City of Milwaukee,
2011 WI 20, ¶60 n.20,
332 Wis. 2d 857,
96 N.W.2d 717 (emphasis
added). In Larson v. Burmaster,
2006 WI App 142, ¶42,
295
Wis. 2d 333,
720 N.W.2d 134, the Wisconsin Court of Appeals held
that "strict scrutiny is applied" when a "fundamental
constitutional right is violated."
¶74 Without explanation, the majority altogether ignores
its holding in Wisconsin Carry and refuses to apply Mayo, two
cases we recently decided. The majority threatens every
Wisconsin citizen's right to keep and bear arms by failing to
acknowledge the right as fundamental and accordingly using the
wrong level of review. In electing to apply an intermediate
level of scrutiny, the majority misconstrues the nature of the
infringement of Roundtree's Second Amendment right. Its error
stems from mischaracterizing the person who seeks to exercise
his Second Amendment right as an "activity lying closer to the
margins of the right." Majority op., ¶35 (emphasis added)
(citing Kanter v. Barr, 919 F.3d 437, 448 n.10 (7th Cir. 2019)).
Of course, a person is not an "activity" and in this case,
Roundtree wishes to exercise what Heller pronounced to be the
"core lawful purpose of armed defense," which the State of
8
No. 2018AP594-CR.rgb
Wisconsin totally denies him. 554 U.S. at 630. "[A] lifetime
ban on any felon possessing any firearm" undoubtedly "does
impair the 'core conduct' of self-defense in the home——at least
for a felon who has completed his sentence, or someone who
shares his household." C. Kevin Marshall, Why Can't Martha
Stewart Have a Gun?,
32 Harv. J.L. & Pub. Pol'y 695, 697 (2009).
Such "broadly prohibitory laws restricting the core Second
Amendment right . . . are categorically unconstitutional."
Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011).
Roundtree's core right to possess a firearm in his own home is
not merely restricted, it is extinguished. This alone warrants
strict scrutiny.
¶75 Ultimately, the level of scrutiny applied is not
dispositive; Wis. Stat. § 941.29(1m) fails under either level of
review. More importantly, the statute is inconsistent with the
historical understanding of the scope of the Second Amendment
right and who possesses it. For this reason, Heller declined to
adopt a particular level of scrutiny.6 The Supreme Court
expressed only that "'rational basis' . . . could not be used to
evaluate the extent to which a legislature may regulate a
District of Columbia v. Heller, 554 U.S. 570, 581, 628
6
(2008). See also State v. Sieyes, 225 P.3d 995, ¶34 (Wash.
2010) ("We follow Heller in declining to analyze [Washington's
statute restricting the rights of children to keep and bear
arms] under any level of scrutiny. Instead we look to the
Second Amendment's original meaning, the traditional
understanding of the right, and the burden imposed on children
by upholding the statute. See generally Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-Defense:
An Analytical Framework and a Research Agenda, 56 UCLA L. Rev.
1443, 1449 (2009).").
9
No. 2018AP594-CR.rgb
specific, enumerated right" such as "the right to keep and bear
arms." Heller, 554 U.S. at 628 n.27 ("If all that was required
to overcome the right to keep and bear arms was a rational
basis, the Second Amendment would . . . have no effect."). If
anything, Heller signals that courts should approach challenges
to statutes infringing the Second Amendment right with a
rigorous review of history, rather than the inherently
subjective consideration of whether the government's interest in
curtailing the right outweighs the individual's interest in
exercising it. "As to the ban on handguns[,] . . . the Supreme
Court in Heller never asked whether the law was narrowly
tailored to serve a compelling government interest (strict
scrutiny) or substantially related to an important government
interest (intermediate scrutiny). If the Supreme Court had
meant to adopt one of those tests, it could have said so in
Heller and measured D.C.'s handgun ban against the relevant
standard. But the Court did not do so; it instead determined
that handguns had not traditionally been banned and were in
common use——and thus that D.C.'s handgun ban was
unconstitutional." Heller v. District of Columbia, 670 F.3d
1244, 1273 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). The
majority in this case should have conducted the historical
analysis necessary to determine whether felons were
traditionally dispossessed of their weapons. They weren't,
unless they were dangerous to society. Accordingly, Wisconsin's
categorical dispossession of all felons irrespective of whether
they pose a danger to the public is unconstitutional.
10
No. 2018AP594-CR.rgb
¶76 Although the United States Supreme Court has declined
to pronounce the appropriate level of review for statutes
burdening the fundamental right to keep and bear arms in favor
of discerning the traditional understanding of the Second
Amendment, this court (as it must) has recognized the right to
keep and bear arms to be fundamental, and this court has
declared strict scrutiny to be the appropriate level of scrutiny
"applied to statutes that restrict a fundamental right." Mayo,
383 Wis. 2d 1, ¶28. At the very least, the majority should
explain why it now subordinates the fundamental, constitutional
right to keep and bear arms.
II
¶77 Statutes subject to strict scrutiny rarely survive.
Burson v. Freeman, 504 U.S. 191, 211 (1992) ("[I]t is the rare
case in which we have held that a law survives strict
scrutiny."). In order to survive, "a statute must serve a
compelling state interest[,] . . . be necessary to serving that
interest[,] and . . . be narrowly tailored toward furthering
that compelling state interest." Mayo, 383 Wis. 2d 1, ¶28.
Historically, laws that dispossessed the violent served the
compelling state interest in public safety. Wisconsin's felon
dispossession law, however, ensnares the non-violent, thereby
detaching itself from the statute's ostensible purpose.
¶78 Even assuming Wisconsin's felon dispossession statute
serves the unquestionably compelling state interest in public
11
No. 2018AP594-CR.rgb
safety,7 the statute is not "narrowly tailored" toward advancing
that interest because it applies to any individual convicted of
a felony offense, even if that person poses no danger to
society. For example: "One man beats his wife, harming her
physically and emotionally and traumatizing their children who
witness the assault. He may, however, only have committed
battery, a misdemeanor." State v. Thomas, 2004 WI App 115,
¶47,
274 Wis. 2d 513,
683 N.W.2d 497 (Schudson, J., concurring)
(emphasis in original). The legislature allows this
undisputedly violent man to possess a firearm. "Another man
enters a garage to steal a shovel; he has committed a
burglary," which is a felony offense.
Id. The legislature
forever prohibits him from possessing a firearm. "One woman
drives while intoxicated, threatening the lives of countless
citizens. Under Wisconsin's drunk driving laws——the weakest in
the nation——she has committed a non-criminal offense if it is
her first, or only a misdemeanor unless it is her fifth (or
subsequent) offense." Id., ¶48. Wisconsin's legislature deems
this woman fit to possess a firearm. "Another woman, however,
forges a check; she has committed a felony." Id. As a result,
Wisconsin's legislature forever prohibits her from possessing a
firearm. Despite the utterly ineffectual distinctions drawn by
the legislature, the majority allows the legislature to
permanently dispossess non-dangerous individuals of their Second
Amendment rights while allowing violent citizens to retain them.
7State v. Pocian, 2012 WI App 58, ¶12,
341 Wis. 2d 380,
814
N.W.2d 894 (quoted source omitted) (holding that felon
dispossession statutes are a "matter of public safety").
12
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Even intermediate scrutiny cannot save a statute that purports
to serve an important government interest——protecting society
from violent criminals——but fails so miserably to achieve it.
¶79 In considering an as-applied challenge to a law "that
entirely bars the challenger from exercising the core Second
Amendment right, any resort to means-end scrutiny is
inappropriate" when the challenger falls outside of "the
historical justifications supporting the regulation." Binderup,
836 F.3d at 363 (Hardiman, J., concurring). Instead, "such laws
are categorically invalid as applied to persons entitled to
Second Amendment protection."
Id. In Binderup, a federal
statute dispossessing all individuals convicted of state
misdemeanors punishable by more than two years in prison went
"even further than the 'severe restriction' struck down in
Heller: it completely eviscerate[d] the Second Amendment right"
as to an entire group of individuals who were historically
proven to retain it.
Id. at 364. So too with Wisconsin's
categorical ban on the possession of firearms by non-dangerous
felons. The original meaning of the Second Amendment,
encompassing a traditional understanding of the scope of the
rights it protects as well as the range of historically
recognized restrictions, establishes this statute's
unconstitutionality, independent of the application of any
standard of scrutiny.
III
¶80 At its inception, the right to keep and bear arms
protected under the Second Amendment was never understood to
13
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countenance the categorical exclusion of felons that Wis. Stat.
§ 941.29(1m) endorses. Historically, legislatures prohibited
only dangerous people from possessing a firearm, not an
individual like Roundtree who, although convicted of a felony
offense, poses no demonstrable risk to the public. This more
narrowly drawn restriction reflects the nature of the right as
an individual, rather than a merely collective or civil one.
¶81 In drafting the Second Amendment, "both Federalists
and Anti-Federalists accepted an individual right to arms; the
only debate was over how best to guarantee it." Don B. Kates,
Jr., Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204, 223 (1983). The Founders
settled on the following language: "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. When judges interpret constitutional text, we
give words their original public meaning. Judges who instead
inject a modern gloss over constitutional provisions
impermissibly change their meaning, a right reserved to the
people through the process of constitutional amendment. In
interpreting the Second Amendment, we accordingly apply the
particular meaning of the words "militia" and "right of the
people" as they were understood at the time of ratification.
¶82 At the time of the founding, "militia" meant "the body
of the people"——an adult citizenry "who were not simply allowed
to keep their own arms, but affirmatively required to do so."
Letters from the Federal Farmer to the Republican 123 (W.
14
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Bennett ed. 1978) (ascribed to Richard Henry Lee) ("A militia,
when properly formed, are in fact the people
themselves . . . ."); Kates, supra, at 214 (discussing how, in
the pre-colonial tradition, male citizens were required to keep
arms for purposes of law enforcement). It was the citizenry's
collection of personally-owned firearms that made possible law
enforcement and military service during the founding era. After
all, the Founders preserved this right primarily in response to
the tyranny witnessed in England and its corresponding colonies.
As George Mason warned, it was the goal of the English monarch
"to disarm the people," as that was the "best and most effectual
way to enslave them." 3 J. Elliot, Debates in the Several State
Conventions 380 (2d ed. 1836).
¶83 As a principal means of resisting such tyranny, the
Founders enshrined the "right of the people" to keep and bear
arms as an individual right. As Richard Henry Lee understood,
"to preserve liberty, it is essential that the whole body of the
people always possess arms and be taught alike, especially when
young, how to use them." Kates, supra, at 221-22 (citing
Letters from the Federal Farmer, supra, at 124). For Lee, the
right to keep and bear arms formed a bedrock of an independent
nation and free society. The Second Amendment "right of the
people" perfectly mirrors the language found in the First and
Fourth Amendments. In each of these provisions, "the people"
unequivocally retain far-reaching and fundamental individual
rights under the Constitution. As Heller acknowledged, "the
people" "refers to a class of persons who are part of a national
15
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community or who have otherwise developed sufficient connection
with this country to be considered part of that community."
Heller, 554 U.S. at 580 (citing United States v. Verdugo-
Urquidez,
494 U.S. 259, 265 (1990)). It is within the context
of this broad protection of individual liberty that the Second
Amendment must be understood. While the Constitution permits
certain restrictions, regulations, and forfeitures of the right
to keep and bear arms, any curtailing of such a fundamental
liberty interest requires close judicial inspection.
¶84 In a case also concerning a constitutional challenge
to Wis. Stat. § 941.29(1m), Seventh Circuit Court of Appeals
Judge Amy Barrett undertook the "exhaustive historical analysis"
of the Second Amendment as applied to felons, an issue left
unexamined in Heller, which did not consider the
constitutionality of felon dispossession laws. In that seminal
opinion, then-Judge Barrett concluded that "[h]istory is
consistent with common sense: it demonstrates that legislatures
have the power to prohibit dangerous people from possessing
guns[,] [b]ut that power extends only to people who are
dangerous." Kanter v. Barr,
919 F.3d 437, 451 (7th Cir. 2019)
(Barrett, J., dissenting). Founding-era state ratifying
conventions and contemporaneously-enacted legislation reveal
that the Second Amendment never empowered legislatures to disarm
non-dangerous felons.
¶85 Language protecting the right to bear arms proposed
during the New Hampshire, Massachusetts, and Pennsylvania
ratifying conventions is frequently cited as evidence of the
16
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constitutionality of felon disarmament. Kanter, 919 F.3d at 455
(Barrett, J., dissenting). All three proposals, however, would
have excluded from the Second Amendment's protections only
people who were dangerous.
Id. at 456. The New Hampshire state
convention proposed that "Congress shall never disarm any
Citizen unless such as are or have been in Actual Rebellion." 2
Bernard Schwartz, The Bill of Rights: A Documentary History 761
(1971) (emphasis added). At the time, "[t]his limitation
targeted a narrow group because 'rebellion' was a very specific
crime" denoting treason. Kanter,
919 F.3d at 455 (Barrett, J.,
dissenting) (citing Rebellion, 2 New Universal Etymological
English Dictionary (4th ed. 1756)). Nothing in the historical
record suggests New Hampshire would have extended disarmament to
common criminals, much less individuals who posed no risk to
public safety.
¶86 The same can be said for the proposal from the
Massachusetts convention. Samuel Adams suggested limiting the
right to bear arms to "peaceable citizens." Id. (citing
Schwartz, supra, at 681). In the founding era, "'peaceable'
meant '[f]ree from war; free from tumult'; '[q]uiet;
undisturbed'; '[n]ot violent; not bloody'; '[n]ot quarrelsome;
not turbulent.'" Kanter,
919 F.3d at 455 (Barrett, J.,
dissenting) (citing 1 Samuel Johnson, A Dictionary of the
English Language (5th ed. 1773)). Each of the antonyms of
"peaceable" connote some form of danger to the public at large.
In other words, the Massachusetts convention couched its
proposed Second Amendment limitation within the context of one's
17
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propensity for violence; nothing in the language purports to
exclude criminals as a class.
¶87 Lastly, although the Pennsylvania convention offered
ostensibly the strongest restriction on Second Amendment rights,
a more careful reading of this proposal suggests otherwise. The
Pennsylvania Minority proposed: "That the people have a right
to bear arms . . . and no law shall be passed for disarming the
people or any of them unless for crimes committed, or real
danger of public injury from individuals." Schwartz, supra, at
665 (emphasis added). There are two potential interpretations
of this language: one that would exclude both criminals as well
as the otherwise dangerous, and another that would exclude those
who pose a danger to society, irrespective of whether they have
committed crimes. Kanter, 919 F.3d at 456 (Barrett, J.,
dissenting). Given the absence of any historical indications
that the founding generation contemplated the dispossession of
all criminals, the latter interpretation is the more reasonable
one, under which "the catchall phrase limiting the rights of
individuals who pose a 'real danger of public injury' would be
an effort to capture non-criminals whose possession of guns
would pose the same kind of danger as possession by those who
have committed crimes" namely, "a subset of crimes" involving
"real danger of public injury."
Id. (emphasis in original).
¶88 Of course, none of the limiting language proposed by
any of these states' conventions appears in the Second
Amendment. Id. This omission provides further textual proof
that Second Amendment rights extend to every citizen, unless
18
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restricted or removed for constitutionally-permissible reasons,
which were uniformly rooted in concerns over dangerousness
rather than general criminality. An examination of legislation
in the American colonies predating the Second Amendment confirms
this understanding. Concerned at the time with impending
threats of English tyranny, the founding generation dispossessed
individuals "who refused to pledge their loyalty to the
Revolution, state, or nation." Binderup, 836 F.3d at 368
(Hardiman, J., concurring). Early Americans grounded their
disarmament laws in quelling the "potential danger" posed by
those who were disloyal, although they had committed no crime.
Id. (citing Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives,
700 F.3d 185, 200 (5th Cir.
2012)). At its core, the founding generation enacted these
types of laws in order to "deal with the potential threat coming
from armed citizens who remained loyal to another sovereign."
Kanter,
919 F.3d at 457 (Barrett, J., dissenting) (quoted source
omitted). These laws were not concerned with categorical
distinctions based upon classes of criminals nor an individual's
prior legal transgressions. Instead, they were designed to
disarm individuals who posed a danger to society or,
particularly in the founding era, a danger to the Revolution.
¶89 The same can be said about other laws enacted close in
time to the founding. In particular, colonial legislatures
passed statutes disarming Native Americans and slaves,
purportedly out of fear of their armed "revolt" or other threats
to "public safety." Id. at 458 (citing Joyce Lee Malcolm, To
19
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Keep and Bear Arms 140-41 (1994)). Similarly, a distrust of
Catholics prompted their disarmament "on the basis of
allegiance" rather than faith. Id. at 457 (citing Robert H.
Churchill, Gun Regulation, the Police Power, and the Right to
Keep Arms in Early America: The Legal Context of the Second
Amendment,
25 Law & Hist. Rev. 139, 157 (2007)). Although these
laws would not survive a contemporary constitutional challenge,
they nevertheless reveal the limits the founding generation
contemplated for the right to keep and bear arms. The earliest
Americans enacted them out of a fundamental fear of rebellion
and public unrest, rather than as a forfeiture for criminal
conduct. Constitutionally permissible disarmament is
circumscribed by founding-era conceptions of a person's danger
to society. In other words, "Heller instructs that the public
understanding of the scope of the right to keep and bear arms at
the time of the Second Amendment dictates the scope of the right
today." Binderup,
836 F.3d at 367 (Hardiman, J., concurring).
¶90 In contrast to its meaning under Wis. Stat.
§ 941.29(1m), the word "felon" signified something quite
different in the founding era. "At early common law, the term
'felon' applied only to a few very serious, very dangerous
offenses such as murder, rape, arson, and robbery." Don B.
Kates & Clayton E. Cramer, Second Amendment Limitations and
Criminological Considerations,
60 Hastings L.J. 1339, 1362
(2009). Over time, English Parliament began classifying more
and more crimes as "capital offenses, some involving trivial
thefts."
Id. In colonial America, capital punishment was rare.
20
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Kanter, 919 F.3d at 459 (Barrett, J., dissenting). Although a
definitive understanding of what "felony" meant at that time
remains elusive, a felony conviction unaccompanied by a life
sentence typically resulted in a suspension of rights, rather
than a permanent loss.
Id.
¶91 Contrary to this overarching distinction between
dangerous and non-dangerous individuals, some courts——and the
State in this case——claim that the original meaning of the
Second Amendment is rooted in a "virtuous citizenry" test. See,
e.g., United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir.
2010) (citing with approval cases concluding that the right to
bear arms was tied to the concept of a virtuous citizenry);
United States v. Carpio-Leon,
701 F.3d 974, 979-80 (4th Cir.
2012) ("[F]elons were excluded from the right to arms because
they were deemed unvirtuous."). According to this theory, the
"right to arms was inextricably and multifariously linked to
that of civic virtue . . . ." Kates & Cramer, supra, at 1359.
Because criminals have engaged in unvirtuous conduct, purveyors
of this notion posit that the Framers intended to limit their
Second Amendment liberties outright, irrespective of
dangerousness. See id. at 1360.
¶92 The majority alludes to this concept in a selective
but incomplete citation to Heller, proclaiming that "the Second
Amendment secures 'the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.'" Majority
op., ¶21 (citing Heller, 554 U.S. at 635). Of course, far from
restricting the right to keep and bear arms to a select segment
21
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of society, to be exercised only for self-defense in the home,
Heller instead declared that the Second Amendment right "belongs
to all Americans" and broadly protects all "defensive purposes"
regardless of whether the right is exercised within or beyond
the home. 554 U.S. at 581, 602. This is the core right
protected by the Second Amendment. The full context of the
phrase from Heller cited by the majority shows that the Second
Amendment is neither limited to "law-abiding" citizens nor
confined to the "defense of hearth and home." Instead, the
Heller Court reserved other applications of the Second Amendment
for "future evaluation" while declaring that the Constitution
"surely elevates above all other interests" the practice
prohibited by the District of Columbia's handgun ban: "the
right of law-abiding citizens to use arms in defense of hearth
and home."
Id. at 635. While this may constitute a
particularly sacrosanct exercise of the Second Amendment right,
at its core, the Second Amendment protects far more, and nothing
in an original understanding of its text remotely suggests a
non-violent criminal forfeits his Second Amendment right
altogether.
¶93 In suggesting that the Second Amendment right belongs
only to the law-abiding, the virtuous citizen standard is deeply
intertwined with the collective rights interpretation of the
Second Amendment, a reading Heller debunked as contrary to the
22
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original meaning of the Second Amendment.8 While "history does
show that felons could be disqualified from exercising certain
rights——like the rights to vote and serve on juries——because
these rights belonged only to virtuous citizens[,]" such "virtue
exclusions are associated with civic rights——individual rights
that 'require[] citizens to act in a collective manner for
distinctly public purposes.'" Kanter, 919 F.3d at 462 (Barrett,
J., dissenting) (citation omitted). In contrast, the Second
Amendment "unambiguously" protects "individual rights," not
collective rights. Heller,
554 U.S. at 579. Given the Supreme
Court's rightful rejection of the collective rights theory as
applied to the right to keep and bear arms, the virtuous
citizenry standard is entirely misplaced in construing the
Second Amendment, particularly considering that its exercise is
"intimately connected with the natural right of self-defense,
and not limited to civic participation." Kanter,
919 F.3d at
464 (Barrett, J., dissenting).
¶94 The virtuous citizenry standard lacks any foundation
in the historical backdrop to the Second Amendment. For one,
The "virtuous-citizens-only conception of the right to
8
keep and bear arms is closely associated with pre-Heller
interpretations of the Second Amendment by proponents of the
'sophisticated collective rights model' who rejected the view
that the Amendment confers an individual right and instead
characterized the right as a 'civic right . . . exercised by
citizens, not individuals . . . who act together in a collective
manner, for a distinctly public purpose: participation in a
well regulated militia.'" Binderup v. Atty. Gen. U.S. of
America, 836 F.3d 336, 371 (3rd Cir. 2016) (Hardiman, J.,
concurring) (citing Saul Cornell & Nathan DeDino, A Well
Regulated Right: The Early American Origins of Gun Control,
73
Fordham L. Rev. 487, 491-92 (2004)).
23
No. 2018AP594-CR.rgb
"this supposed limitation on the Second Amendment stems from a
misreading of an academic debate about 'ideological
interpretation.'" Binderup, 836 F.3d at 371 (Hardiman, J.,
concurring) (citation omitted). In advancing this theory,
certain scholars divorced themselves from more authoritative
historical sources and wrongly focused upon whether or not
particular Founders were civic republicans or libertarians.
Id.; see also Saul Cornell & Nathan DeDino, A Well Regulated
Right: The Early American Origins of Gun Control,
73 Fordham L.
Rev. 487, 492 (2004). This debate over ideology may inform the
Framers' motivations for constitutionally preserving the right
to keep and bear arms, but it has nothing to say about the scope
of the right or any constitutionally permissible restrictions on
its exercise.
¶95 If the virtuous citizenry test was historically valid,
we would expect to discover 18th and 19th century laws depriving
felons of their Second Amendment rights——a class of people that
would certainly be categorized as "unvirtuous." But that is
simply not the case. In the decades following ratification,
"nine states enacted their own right-to-arms provisions in their
constitutions," and none of them placed restrictions on
criminals. Kanter, 919 F.3d at 463 (Barrett, J., dissenting)
(citing Eugene Volokh, State Constitutional Rights to Keep and
Bear Arms,
11 Tex. Rev. L. & Pol. 191, 208-09 (2006)). The
historic record affords the virtuous citizenry test no
credibility; in fact, there is "no historical evidence on the
public meaning of the right to keep and bear arms indicating
24
No. 2018AP594-CR.rgb
that 'virtuousness' was a limitation on one's qualification for
the right." Binderup, 836 F.3d at 373 (Hardiman, J.,
concurring). Instead, as outlined above, the original meaning
of the Second Amendment contemplates curtailing the rights of
only those individuals who pose a danger to the public.
¶96 The majority's rationale for sanctioning the blanket
revocation of felons' Second Amendment right is even weaker than
the "virtuous citizen" justification. Wisconsin's citizens
should be alarmed by the breathtaking scope of the majority's
conclusion that "it is reasonable for the State to want to keep
firearms out of the hands of those who have shown a willingness
to . . . break the law"9 considering the "cancerous growth since
the 1920s of 'regulatory' crimes punishable by more than a year
in prison, as distinct from traditional common-law crimes. The
effect of this growth has been to expand the number and types of
crimes that trigger 'felon' disabilities to rope in persons
whose convictions do not establish any threat that they will
physically harm anyone, much less with a gun." Marshall, supra,
at 697. As but one example of how the ever-expanding regulatory
state may eventually make felons of us all, recall that whomever
fails "to comply with any record-keeping requirement for fish"
is guilty of a Class I felony under Wis. Stat. § 29.971(1)(c)
(provided the fish are worth more than $1,000).
¶97 Only months ago, a slim majority of this court
invalidated Executive Order 28, which had been issued by a
single, unelected bureaucrat who in the name of the COVID-19
9 Majority op., ¶48.
25
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pandemic "claimed the authoritarian power to authorize the
arrest and imprisonment of the people of Wisconsin for engaging
in lawful activities proscribed by the DHS secretary-designee in
her sole discretion." Wisconsin Legislature v. Palm, 2020 WI
42, ¶81,
391 Wis. 2d 497,
942 N.W.2d 900 (Rebecca Grassl
Bradley, J., concurring). Had the court ruled otherwise, would
a majority of this court deem it "reasonable" to keep firearms
out of the hands of those who disobeyed a cabinet secretary's
decree to "all people within Wisconsin to remain in their homes,
not to travel and to close all businesses that she declares are
not 'essential'"? Palm,
391 Wis. 2d 497, ¶1. If so, the
court's decision in this case would give the State license to
disarm a substantial portion of the citizens of Wisconsin based
on their "willingness to break the law" as unilaterally decreed
by an unelected bureaucrat, for the unspeakable crimes of
opening their "non-essential" businesses or washing their hands
for less than 20 seconds. Palm,
391 Wis. 2d 497, ¶87 (Kelly,
J., concurring). As a general proposition, the judiciary should
defer to the policy choices of the legislative branch, but when
those policy choices unconstitutionally infringe the people's
fundamental rights, it is the duty of the judicial branch to say
so. "[T]o make an individual's entitlement to the Second
Amendment right itself turn on the predilections of the
legislature . . . is deference the Constitution won't bear."
Binderup,
836 F.3d at 374 (Hardiman, J., concurring).
¶98 Underlying the founding generation's reverence for the
fundamental right to keep and bear arms was the understanding
26
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that "[o]ne of the ordinary modes, by which tyrants accomplish
their purposes without resistance, is, by disarming the people,
and making it an offence to keep arms." Heller, 554 U.S. at
608-09 (citing Joseph Story, A Familiar Exposition of the
Constitution of the United States § 450 (reprinted 1986)).
Embodying "the first law of nature" and representing "the true
palladium of liberty," the people's Second Amendment right
deserves far more respect than the legislature or the majority
give it.
IV
¶99 Whether applying strict scrutiny or some lesser
standard, Wis. Stat. § 941.29(1m) is unconstitutional as applied
to Roundtree, under the original meaning of the Second
Amendment. Even if a compelling state interest underlies the
statute, it lacks any narrow tailoring tied to the protection of
the public and therefore the statute unconstitutionally limits
Roundtree's right to keep and bear arms. Nor does § 941.29(1m)
bear a substantial relation to an important governmental
objective. Section 941.29(1m) bans every felon from possessing
a firearm in this state, regardless of whether he poses a danger
to the public. If the compelling/important state interest is
protecting the public from dangerous felons, then the statute
must actually do so. Instead, § 941.29(1m) disarms every
citizen convicted of a felony offense, regardless of the nature
of the crime involved, and irrespective of whether the offender
is dangerous. To survive either strict or intermediate
scrutiny, § 941.29(1m) would need to reach only dangerous
27
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felons, as determined by the crime committed or the offender's
personal characteristics. Under the intermediate level of
scrutiny applied by the majority, in order to assess "the
strength of the government's justification for restricting"10
Roundtree's Second Amendment rights——public safety——the court
must ask whether the public is safer now that Roundtree is
completely and permanently disarmed.11
¶100 Roundtree committed a non-violent felony when he
failed to pay child support nearly 13 years ago. The sentencing
court did not send Roundtree to prison, indicating he was not
deemed dangerous to the public. The record shows he made full
restitution by paying what he owed and he did not reoffend.
Roundtree has never been convicted of a violent crime and the
State did not introduce any evidence otherwise suggesting that
Roundtree poses a danger to society. Abandoning any pretense of
conducting an individualized inquiry into the application of
Wisconsin's felon disarmament statute to Roundtree specifically,
the majority instead resorts to nearly decade-old data from the
Wisconsin Department of Corrections indicating that 21.4 percent
of those who committed "public order offenses" and spent time in
prison later committed a violent crime. Majority op., ¶51. Of
course, Roundtree was never incarcerated for his offense, so the
only foundation for the majority's declaration of a "substantial
10 Majority op., ¶40 (citation omitted).
C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?,
11
32 Harv. J.L. & Pub. Pol'y 695, 696 (2009) ("Is the public safer
now that Martha Stewart is completely and permanently
disarmed?").
28
No. 2018AP594-CR.rgb
relation" between disarming nonviolent felons and "preventing
gun violence" collapses when applied to Roundtree and others
like him who never spent time in prison.
¶101 Even if Roundtree had spent time in prison, the
premise that the State may permanently disarm all felons in
order to protect the public, based on data showing that 21.4
percent of felons incarcerated for "public order offenses" later
commit violent ones, presents a specious justification for
infringing a fundamental constitutional right. Unlike Roundtree
who was sentenced to probation, Martha Stewart spent five months
in jail. Marshall, supra, at 695. "Is the public safer now
that Martha Stewart is completely and permanently disarmed?"
Id. at 696. Of course not, and "it is at least curious how
Martha Stewart could merit anyone's concern." Id. at 735. The
same could be said for Roundtree, since the State produced no
evidence indicating that Roundtree presents a danger to society
warranting removal of his Second Amendment right.
¶102 The Founders never understood legislatures to have the
power to strip non-dangerous criminals of their Second Amendment
rights, which the Constitution protects for all Americans.
Absent statutory language narrowly tailoring the disarming of
felons based upon their perceived dangerousness, or even bearing
a substantial relationship to the ostensible governmental
objective of protecting society, Wis. Stat. § 941.29(1m) cannot
survive any level of constitutional scrutiny as applied to
Roundtree, much less the hapless possessor of fish who runs
afoul of the record-keeping requirements of Chapter 29 of the
29
No. 2018AP594-CR.rgb
Wisconsin Statutes. Without the predictive powers of the mutant
precogs from "The Minority Report,"12 permanently revoking the
Second Amendment rights of those who fail to meet their familial
financial obligations or carelessly keep their fish records,
bears no relationship to "public safety" or "the prevention of
gun violence," majority op., ¶53, much less a substantial one.
¶103 Of particular constitutional concern, Wis. Stat.
§ 941.29(1m) permanently disarms Roundtree and other non-
dangerous felons, who have no avenue for having their Second
Amendment rights restored. In contrast, a convicted felon only
temporarily loses his right to vote during his incarceration and
extended supervision.
Wis. Stat. § 6.03(1)(b). Once he
completes the term of his sentence, the State restores his
voting rights.
Wis. Stat. § 304.078(3). Similarly, convicted
felons regain their right to serve as jurors after their civil
rights have been restored.
Wis. Stat. § 756.02. Reviving these
collective rights for felons while permanently dispossessing
them of their individual and fundamental Second Amendment rights
turns the constitutional order on its head.
12 "The Minority Report is a 1956 science fiction novella by
American writer Philip K. Dick, first published in Fantastic
Universe. In a future society, three mutants foresee all crime
before it occurs. Plugged into a great machine, these 'precogs'
allow a division of the police called Precrime to arrest
suspects before they can commit any actual crimes." The
philosophical premise underlying the novella "question[s] the
relationship between authoritarianism and individual autonomy."
The story was adapted into the 2002 film "Minority Report,"
directed by Steven Spielberg.
https://en.wikipedia.org/wiki/The_Minority_Report.
30
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…
¶104 To the extent Wis. Stat. § 941.29(1m) permanently
deprives Roundtree of his fundamental, individual right to keep
and bear arms, with no showing of his dangerousness to society,
this statute is unconstitutional as applied to Roundtree. While
the wisdom of the legislature's policy choices may be fiercely
debated, "the enshrinement of constitutional rights necessarily
takes certain policy choices off the table." Heller,
554 U.S.
at 636. Permanent dispossession of felons' Second Amendment
rights is one of them. "[A]n act of the Legislature repugnant
to the Constitution is void." Marbury,
5 U.S. at 177. As
applied to felons who pose no danger to society, Wisconsin's
felon dispossession statute is repugnant to the Constitution,
and therefore void. Because the majority allows statutory law
to override the fundamental constitutional right to keep and
bear arms, I dissent.
31
No. 2018AP594-CR.bh
¶105 BRIAN HAGEDORN, J. (dissenting). The Second
Amendment prohibits the government from infringing upon the
individual and fundamental right to keep and bear arms.
Wisconsin, however, makes possession of firearms a crime for any
person convicted of a felony. Wis. Stat. § 941.29(1m)(a) (2017-
18).1 This complete ban on possessing firearms never expires; it
lasts for a lifetime. It matters not whether the felony was for
making unlawful political contributions (
Wis. Stat.
§ 11.1401(1)(a)), legislative logrolling (
Wis. Stat. § 13.05),
armed robbery (
Wis. Stat. § 943.32(2)), or here, delinquent
child support (
Wis. Stat. § 948.22(2)).
¶106 In 2003, Leevan Roundtree was convicted of a felony
for failure to pay child support for more than 120 days. In
2015, a search warrant found him in possession of a firearm
under his mattress at his home, leading to the charge currently
before us on appeal. Roundtree asks this court to decide
whether the Second Amendment permits the State to criminalize
his possession of a firearm. The majority answers yes,
reasoning that the State may disarm all those who have committed
a felony of whatever kind. I disagree. I conclude that the
original public meaning of the Second Amendment supports
applying at least intermediate scrutiny to this type of
restriction. This places the burden on the State to demonstrate
that the law is constitutional as applied to Roundtree by
proving a substantial relationship, a close fit, between
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version.
1
No. 2018AP594-CR.bh
criminalizing gun possession for those convicted of any felony
or of the felony of failure to pay child support and the State's
interest in preventing gun-related violence. The State has come
nowhere close to meeting its burden. I respectfully dissent.
I. THE SECOND AMENDMENT
¶107 We begin by laying down the guiding principles of
constitutional interpretation, and then apply those principles
to the Second Amendment.2
A. Principles of Constitutional Interpretation
¶108 In America, the people are sovereign. This is the
bedrock principle of American government. Wis. Leg. v. Palm,
2020 WI 42, ¶172,
391 Wis. 2d 497,
942 N.W.2d 900 (Hagedorn, J.,
dissenting) ("Government has a morally legitimate claim to order
and command not because it has the biggest guns or because it's
always been that way, but because the people have given it that
power."). When the people established our federal government,
they granted it only a limited set of enumerated powers. United
States v. Morrison, 529 U.S. 598, 607 (2000). States,
meanwhile, retained broad and far-reaching police powers,
covering the state's inherent power "to promote the general
welfare," which "covers all matters having a reasonable relation
2 Roundtree also challenges Wis. Stat. § 941.29(1m)(a) under
Article I, Section 25 of the Wisconsin Constitution. However,
he fails to develop this argument in any meaningful way, and we
will not do so for him. Serv. Emps. Int'l Union, Loc. 1 v. Vos,
2020 WI 67, ¶24,
393 Wis. 2d 38,
946 N.W.2d 35. Accordingly,
this analysis focuses on the Second Amendment alone.
2
No. 2018AP594-CR.bh
to the protection of the public health, safety or welfare."
State v. Interstate Blood Bank, Inc., 65 Wis. 2d 482, 490,
222
N.W.2d 912 (1974).
¶109 Neither state nor federal power is without limitation,
however. The people declared certain areas off limits. Many of
these limits are listed in the federal Constitution's Bill of
Rights, including the Second Amendment's protection of the right
"to keep and bear Arms." U.S. Const. amend. II.
¶110 Initially, the Bill of Rights only applied against the
federal government. Timbs v. Indiana, 139 S. Ct. 682, 687
(2019). Following the Civil War, however, the people decided
that some of the limits on federal power should also constrain
the exercise of state power.
Id. To that end, the people
adopted the Fourteenth Amendment which, among other things,
provides that states may not "abridge the privileges or
immunities of citizens of the United States" or "deprive any
person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV, § 1. Over time, the United
States Supreme Court has construed the Fourteenth Amendment as
incorporating most of the protections in the Bill of Rights
against the States——the Second Amendment among them. McDonald
v. City of Chicago,
561 U.S. 742, 750 (2010). Once
incorporated, the amendment's "protection applies 'identically
to both the Federal Government and the States.'" Timbs, 139
U.S. at 689 (quoting McDonald,
561 U.S. at 766 n.14).
Therefore, no arm of Wisconsin government may infringe upon "the
3
No. 2018AP594-CR.bh
right of the people to keep and bear Arms." U.S. Const. amend.
II.
¶111 The Supreme Court's Second Amendment jurisprudence is
sparse, establishing for our purposes only two controlling
propositions: (1) the Second Amendment is incorporated against
the States via the Fourteenth Amendment; and (2) the right the
Second Amendment protects is an individual right, not a
collective right. McDonald, 561 U.S. at 749-50; District of
Columbia v. Heller,
554 U.S. 570, 595 (2008). While we are
bound by these holdings, neither offers much assistance in this
case. Several federal courts of appeals have opined on the
intersection of the Second Amendment and felon-dispossession
laws, but those decisions are merely persuasive, not binding.
¶112 In other words, this court is both free and duty-bound
to do the job of a court——not just to compare and contrast other
courts' opinions, but to explore the meaning of the Second
Amendment and apply it afresh. Admittedly, this is a difficult
task. But we are not without the tools to do the job. When the
people enacted the Constitution, they used words with certain
meanings, and those words were understood——and meant to be
understood——by the public. Our job when reading and applying
the Constitution is to learn how its words were understood by
the public when they were written, what many call the "original
public meaning."
¶113 The first task in this inquiry is, not surprisingly,
to read the constitutional text taking into account its context
and structure. The people who adopted it, after all, can be
4
No. 2018AP594-CR.bh
presumed to have meant what their words conveyed when they wrote
and adopted them. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188
(1824) ("[T]he people who adopted [the Constitution], must be
understood to have employed words in their natural sense, and to
have intended what they have said."); see also Joseph L. Story,
1 Commentaries on the Constitution of the United States § 451
(1833) ("In the first place, then, every word employed in the
constitution is to be expounded in its plain, obvious, and
common sense, unless the context furnishes some ground to
control, qualify, or enlarge it.").
¶114 However, sometimes the meaning of the text is
difficult to determine. This can be especially true with the
passage of time. When that is the case, we look to the
historical record for clues as to what the public understood the
provision to mean when it was adopted. Serv. Emps. Int'l Union,
Loc. 1 v. Vos, 2020 WI 67, ¶28 n.10,
393 Wis. 2d 38,
946
N.W.2d 35 ("[W]here necessary, helpful extrinsic aids may
include the practices at the time the constitution was adopted,
debates over adoption of a given provision, and early
legislative interpretation as evidenced by the first laws passed
following the adoption."). The meaning of the text as
enlightened by the historical record is no less binding because
the historical inquiry is still directed toward discovering what
the words were understood to convey when written. See McPherson
v. Blacker, 146 U.S. 1, 27 (1892); Heller,
554 U.S. at 592. In
other words, the original public meaning controls, even when we
have to work a little to find it.
5
No. 2018AP594-CR.bh
¶115 Judicial application of the original public meaning is
sometimes quite easy. A President, for example, must be at
least 35 years old. U.S. Const. art. II, § 1, cl. 5. Putting
that into practice isn't difficult and requires nothing more
than analyzing and applying the text. But other provisions,
especially the more vaguely worded protections in the Bill of
Rights, often demand some legal framework or test that enables a
court to apply the law to the facts of a case. See, e.g., Ezell
v. City of Chicago, 651 F.3d 684, 700-04 (7th Cir. 2011); see
also Bartlett v. Evers,
2020 WI 68, ¶¶256-59,
393 Wis. 2d 172,
945 N.W.2d 685 (Hagedorn, J., concurring). Our law is replete
with these implementing doctrines that give effect to various
constitutional provisions.3
¶116 A proper legal test must implement and effectuate the
original public meaning of the law. Bartlett, 393 Wis. 2d 172,
¶259 (Hagedorn, J., concurring) (explaining that an appropriate
implementing doctrine is one "that gets us to the heart of the
constitution's meaning"). This is not a license for the
judiciary to engage in policy-driven constitutional line
drawing. Rather, an implementing doctrine must be a faithful
3 For example, the Fourth Amendment protects against
unreasonable searches and seizures. This text is put into
practice with the default warrant requirement and analytical
categories such as reasonable suspicion, probable cause, and
exigent circumstances. E.g., Terry v. Ohio, 392 U.S. 1, 27
(1968); Payton v. New York,
445 U.S. 573, 590 (1980). Most
challenges under the equal protection clause are analyzed under
a rational basis test. E.g., Gregory v. Ashcroft,
501 U.S. 452,
470 (1991). But government discrimination on the basis of race
is subject to strict scrutiny. E.g., Loving v. Virginia,
388
U.S. 1, 11 (1967). And the list could go on.
6
No. 2018AP594-CR.bh
extension of the lines ascertainable in the provision's text and
history. Id., ¶¶257-59.
¶117 With these principles in mind, we turn to the text and
history of the Second Amendment, followed by a discussion of its
proper application.
B. The Text
¶118 The Second Amendment 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.
¶119 As more extensively discussed in Heller, the Second
Amendment contains both a prefatory and operative clause, the
latter of which protects the right to keep arms and to bear
them. Heller, 554 U.S. at 576-78. Historical evidence makes
clear that "'[k]eep arms' was simply a common way of referring
to possessing arms, for militiamen and everyone else."
Id. at
583. Similarly, to "bear" arms meant to carry, as it is
understood today.
Id. at 584.
¶120 The text's reference to "the right of the people"
reflects an understanding that this right——like the Founders'
understanding of many protections in the Bill of Rights——did not
create a new right unknown to the people. Id. at 592. Rather,
the Second Amendment presumes this right already existed and was
held by the people.
Id. The Second Amendment therefore called
upon a right that had an ascertainable scope and substance, and
gave it protection in our fundamental law.
7
No. 2018AP594-CR.bh
¶121 By adopting the Second Amendment, then, the people
prohibited the federal government from infringing their right to
keep and bear arms to the same extent the right existed when the
Second Amendment was ratified in 1791. As Heller explained,
"Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them, whether or not
future legislatures or (yes) even future judges think that scope
too broad." Id. at 634-35.
¶122 The text, however, leaves many questions unanswered.
It does not readily reveal the nature of the right as it was
originally understood, and therefore the power of the state to
regulate matters touching its protections. Accordingly, we look
to the historical record for further assistance.
C. The History
¶123 In 1689 King William and Queen Mary assured Englishmen
that they would never be disarmed. Heller, 554 U.S. at 593.
Codified in the English Bill of Rights, the protection provided:
"That the Subjects which are Protestants, may have Arms for
their Defence suitable to their Conditions, and as allowed by
Law."
Id. (quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at
Large 441 (1689)). The English right to arms "has long been
understood to be the predecessor to our Second Amendment." Id.
This forerunner, and its understanding leading up to the
adoption of the Second Amendment in 1791, is our starting point.
¶124 But our study of the historical record does not end
there. As noted above, the Second Amendment does not operate
8
No. 2018AP594-CR.bh
against the states directly; it does so by incorporation via the
Fourteenth Amendment, which was ratified in 1868. Although this
issue engenders some debate, the prevailing view is that "when
state- or local-government action is challenged, the focus of
the original-meaning inquiry is carried forward in time; the
Second Amendment's scope as a limitation on the States depends
on how the right was understood when the Fourteenth Amendment
was ratified." Ezell, 651 F.3d at 702 (citing McDonald,
561
U.S. at 770-77). Thus, our study of the historical record does
not conclude with the close of the Founding Era, but rather
continues through the Reconstruction Era. Id. at 702-03.
1. A Positive Right
¶125 At its core, the historical record demonstrates that
the Second Amendment protects the longstanding, natural right to
self-defense.
¶126 From the outset, the English Bill of Rights made this
point explicit by guaranteeing the right to "have Arms
for . . . Defence." Heller, 554 U.S. at 593. Blackstone,
reflecting on the English right, noted that it protected the
"natural right of resistance and self-preservation" and "the
right of having and using arms for self-preservation and
defence."
Id. at 594 (quoting 1 William Blackstone,
Commentaries on the Laws of England 139-40 (1765)).
¶127 Across the Atlantic, after King George III tried to
disarm American colonists, Americans "invoke[ed] their rights as
Englishmen to keep arms." Id. It was in that context that a
9
No. 2018AP594-CR.bh
New York newspaper said in April 1769 that "[i]t is a natural
right which the people have reserved to themselves, confirmed by
the Bill of Rights, to keep arms for their own defence." Id.
(quoted source omitted). On the American conception of the
right to keep and bear arms, Blackstone observed it was "without
any qualification as to their condition or degree, as [was] the
case in the British government." 1 William Blackstone,
Commentaries on the Laws of England 143 n.40 (St. George Tucker
ed. 1803).
¶128 In short, the central component of the Second
Amendment is the longstanding, natural right to self-defense.
Heller, 554 U.S. at 595. And, as Heller noted, this right
extends "to the home, where the need for defense of self,
family, and property is most acute."
Id. at 628.
2. With Limitations
¶129 This core right, however, was not impervious to
certain types of government regulation. Laws restricting the
right to keep and bear arms were rare, but they were not
unknown. Those that existed were largely aimed at persons or
classes of people who might violently take up arms against the
government in rebellion, or at persons who posed a more
immediate danger to the public.
¶130 An early instance of this was in 1689, the same year
the English Bill of Rights codified Protestants' right to
possess arms. At that time, Catholics were deemed a threat to
rebel against the Protestant crown and "were not permitted to
10
No. 2018AP594-CR.bh
'keep arms in their houses.'" Heller, 554 U.S. at 582 (quoting
4 William Blackstone, Commentaries on the Laws of England 55
(1769)). A 1695 Irish law disarmed Catholics on the same basis.
7 Will. III ch. 5, § 3 (1695); see also Joseph G.S. Greenlee,
The Historical Justifications for Prohibiting Dangerous Persons
from Possessing Arms,
20 Wyo. L. Rev. 249, 260 (2020). These
class-based dispossessions of those feared to be disloyal to the
crown, and therefore likely to take up arms against the crown,
were renewed multiple times and persisted well into the 18th
century. Greenlee, supra at 260-61.
¶131 The American colonies adopted similar laws disarming
those they feared would use them to violent ends. In 1736,
Virginia permitted constables to "take away Arms from such who
ride, or go, offensively armed, in Terror of the People."
Id. at 262 (quoting George Webb, The Office of Authority of a
Justice of Peace 92-93 (1736)). And in 1756, during the French
and Indian War, Virginia authorized the seizure of arms from
Catholics out of fear they were sympathetic to the French cause
and would take up arms against the colonies. Id. at 263. But
even that law provided an exception "for the defense of his
house or person." Id. (quoting 7 William Waller Hening, The
Statutes at Large; Being a Collection of All the Laws of
Virginia 37 (1820)). Maryland and Pennsylvania also enacted
similar laws during the French and Indian War.
Id.
¶132 The revolutionary years gave rise to related laws
targeting those perceived as disloyal to the American cause and
therefore at risk to take up arms in violence against it. In
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No. 2018AP594-CR.bh
1775, Connecticut prohibited anyone who defamed acts of Congress
from keeping arms "until such time as he could prove his
friendliness to the liberal cause." Id. at 268 (quoting G.A.
Gilbert, The Connecticut Loyalists in 4 Am. Historical Rev. 273,
282 (1899)). One year later, the Continental Congress passed
the Tory Act, which called for disarming those with "erroneous
opinions, respecting the American cause."4 Also that year,
Congress recommended that the colonies disarm those "who are
notoriously disaffected to the cause of America." 4 Journals of
the Continental Congress, 1774-1789 205 (1906). And, at a
minimum, Massachusetts, Pennsylvania, New Jersey, North
Carolina, and Virginia all heeded the call, disarming those
disaffected with or unwilling to take an oath of allegiance to
the American cause. Greenlee, supra at 264-65.
¶133 Massachusetts' responded likewise to Shays' Rebellion
a decade later. Beginning in August 1786, armed bands of
western Bay Staters revolted against the federal government,
attacking government properties and, on February 2, 1787,
engaging a Massachusetts militia in a military confrontation.
Id. at 268-69. In response to the violent rebellion,
Massachusetts placed a variety of restrictions on those
involved, including dispossession of their firearms for three
years. 1 Private and Special Statutes of the Commonwealth of
Massachusetts from 1780-1805 145-47 (1805). Notably, the law
provided that arms given up be kept safe "in order that they may
4 Journals of the Continental Congress, 1775-1789 18-22
4
(1906); https://www.loc.gov/resource/bdsdcc.00801/?st=text.
12
No. 2018AP594-CR.bh
be returned to the person or persons who delivered the same, at
the expiration of the said term of three years." Id. at 147.
The response to Shays' Rebellion epitomized the type of
dispossession laws that existed during the Founding Era. They
were aimed at those considered dangerous to the government
during a time of war, and to a more limited extent, those
considered dangerous to society.
¶134 Moving forward in time, the Reconstruction Era
unsurprisingly reflects the prejudices of the age; most arms
regulations targeted slaves and freedmen. At a minimum,
Mississippi, Indiana, Maryland, Kentucky, North Carolina, and
Delaware adopted such discriminatory laws. Greenlee, supra at
269 n.133. Before passage of the Fourteenth Amendment, Congress
condemned these laws as a violation of the right to keep and
bear arms in the Freedmen's Bureau Act and the Civil Rights Act,
both of 1866. McDonald, 561 U.S. at 773-75. Ratification of
the Fourteenth Amendment, which was widely viewed as
constitutionalizing the Civil Rights Act of 1866, affirmed that
states could not enact such discriminatory laws depriving
persons of their constitutional rights.
Id. at 775.
¶135 A Kansas law adopted in 1868, the same year the
Fourteenth Amendment was ratified, is quite instructive. See
Vos, 393 Wis. 2d 38, ¶64 ("Early enactments following adoption
of the constitution are appropriately given special weight.
This is because these enactments are likely to reflect the
original public meaning of the constitutional text." (citation
omitted)). It provides:
13
No. 2018AP594-CR.bh
Any person who is not engaged in any legitimate
business, any person under the influence of
intoxicating drink, and any person who has ever borne
arms against the government of the United States, who
shall be found within the limits of this state
carrying on his person a pistol, bowie-knife, dirk, or
other deadly weapon, shall be subject to arrest upon
charge of misdemeanor, and upon conviction shall be
fined a sum not exceeding one hundred dollars, or by
imprisonment in the county jail not exceeding three
months, or both, at the discretion of the court.
2 General Statutes of the State of Kansas 353 (1897). This law
prohibits carrying arms: (1) while "not engaged in legitimate
business"; (2) while intoxicated; or (3) for any individual "who
has ever borne arms against" the United States. The first two
restrictions are temporarily imposed in circumstances where
individuals pose a danger of engaging in arms-related violence.
The third restriction focuses on those who could be considered a
threat to rebel against the government because they had done so
in the past.
¶136 Notably the Kansas law prohibited only the "carrying,"
or "bearing," of arms, and not their possession. See supra ¶15.
Therefore, it did not prohibit keeping arms in defense of one's
home. The law also did not prohibit long guns, so it was not a
complete prohibition on carrying weapons. Greenlee, supra at
271 (citing Parman v. Lemmon, 244 P. 232, 233 (Kan. 1926)
(holding shotguns were not included in a similarly constructed
statute)).
¶137 Although more historical clarity would be welcome, the
record sufficiently establishes three key propositions regarding
the original meaning of the Second Amendment. First, possession
of firearms for self-defense and protection of one's home as an
14
No. 2018AP594-CR.bh
individual right was widely accepted as the core of the Second
Amendment's protections. And the relative paucity of laws
prohibiting the possession or carrying of arms shows that this
fundamental right was subject to only narrow bands of
restrictions. Second, in at least some circumstances, states
could permissibly restrict the right to keep and bear arms among
those posing a danger to take up arms against the government and
those posing a danger of engaging in arms-related violence.5
Third, states had some authority to protect against dangerous
individuals by way of class-based arms restrictions, even when
not everyone in the class posed a clear danger of putting their
arms to violent use.
¶138 Instead of this relevant historical evidence, the
majority relies in large part on Heller's declaration that its
opinion was not meant to cast doubt about "longstanding
prohibitions on the possession of firearms by felons," which
were presumed lawful. 554 U.S. at 626-27. This statement
reflects that Heller was limited in its reach, and at least
suggests not all such laws would be unconstitutional. But it
also does not mean all such laws are constitutional (that
question is reserved), nor does it establish that these laws are
In addition to the examples provided, see United States v.
5
Sheldon, in 5 Transactions of the Supreme Court of the Territory
of Michigan 337, 346 (W. Blume ed. 1940) ("The constitution of
the United States also grants to the citizen the right to keep
and bear arms. But the grant of this privilege cannot be
construed into the right in him who keeps a gun to destroy his
neighbor.").
15
No. 2018AP594-CR.bh
embedded into the original public meaning of the Second
Amendment.
¶139 To be sure, felon-dispossession laws laws have been on
the books for some time. But these laws are of 20th century
vintage; they do not date back to the 18th or 19th centuries——
the relevant time periods when the Second Amendment was
ensconced as an individual constitutional right. See generally
C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32
Harv. J.L. & Pub. Pol'y 695 (2009) (examining the genesis of
felon-dispossession laws). In fact, no historical evidence from
the time the Second Amendment was adopted or incorporated
against the states demonstrates broadscale dispossession of
those who have committed certain crimes. Kanter v. Barr,
919
F.3d 437, 454 (7th Cir. 2019) (Barrett, J., dissenting) ("[A]t
least thus far, scholars have not been able to identify any such
laws.").
¶140 The first felon-dispossession laws appeared in 1923,
when New Hampshire, North Dakota, and California enacted laws
forbidding felons from possessing pistols or revolvers.
Greenlee, supra at 273 & n.160. In 1927, Rhode Island went a
step further, barring those convicted of "a crime of violence"
from possessing "any firearm." Id. at 274 (quoting 1927 R.I.
Pub. Laws 257). The federal felon-dispossession law, meanwhile,
was not enacted until the Federal Firearms Act of 1938, and even
then it only applied to those who had committed certain violent
crimes.
Id. (citing Federal Firearms Act, ch. 850, §§ 1(6),
2(f),
52 Stat. 1250, 1250-51 (1938)). It was not until a 1961
16
No. 2018AP594-CR.bh
amendment to the Federal Firearms Act that federal law first
prohibited all felons nationwide from possessing firearms
regardless of their underlying felony. Marshall, supra at 698
(citing An Act to Strengthen the Federal Firearms Act, Pub. L.
No. 87-342, 75 Stat. 757 (1961)). Wisconsin's felon-
dispossession law, meanwhile, dates back only to 1981. Ch. 141,
Laws of 1981.
¶141 Thus, the proliferation of these laws in the last
century——far removed from the time the Second Amendment was
enshrined in the Constitution and incorporated against the
states——does not support the notion that these laws were
understood to be permissible under the historic preexisting
right to keep and bear arms. Such laws may be common today, but
they do not enlighten the original public meaning of the Second
Amendment.
¶142 Moreover, even if such a law had existed when the
Second and Fourteenth Amendments were ratified, it is unclear
how much help that would be. This is because the definition of
a "felon" has greatly expanded since the Founding Era. See
Kanter, 919 F.3d at 458-62 (Barrett, J., dissenting). In 1791,
felonies were a narrow subset of crimes generally involving
violence, many of which warranted the death penalty.
Id. at
459. In contrast, today a person can become a felon for
possessing certain fish illegally, falsifying a boat title, tax
fraud, trafficking SNAP benefits, second offense dialing 911 for
a nonexistent emergency, adultery, and perjury, just to name a
17
No. 2018AP594-CR.bh
few.6 This reality seems to undercut any useful comparisons
between the treatment of felons in 1791 and today. But again,
the historical record reveals no evidence from the Founding or
Reconstruction Eras of the kind of broad felon-dispossession law
like the one here.
¶143 Some have justified these laws by applying a so-called
"unvirtuous citizenry" theory to the Second Amendment. See
Greenlee, supra at 275-85. But this lacks any sound basis in
historical fact, at least insofar as it would apply to today's
felon-dispossession laws.
¶144 This theory is based on the accurate premise that
founding-era felons could be disqualified from exercising
certain civic rights because those rights belonged only to
virtuous citizens. See Thomas M. Cooley, A Treatise on the
Constitutional Limitations 29 (1st ed. 1868) (noting that
certain groups including "the idiot, the lunatic, and the felon,
on obvious grounds," were "almost universally excluded" from
exercising certain civic rights). The problem with extending
this theory to the Second Amendment, however, is that the right
to keep and bear arms is not a "civic right" as that term was
understood at the founding. "Civic rights" were understood to
be just that——rights related to the civic space, i.e., the
community. They included "individual rights that 'require[]
citizens to act in a collective manner for distinctly public
purposes.'" Kanter, 919 F.3d at 462 (Barrett, J., dissenting)
Wis. Stat. § 29.971(1)(c); § 30.80(3m); § 71.83(2)(b)(1);
6
§ 946.92(3)(a); § 256.35(10)(a); § 944.16; § 946.31(1).
18
No. 2018AP594-CR.bh
(quoting Saul Cornell, A New Paradigm for the Second Amendment,
22 Law & Hist. Rev. 161, 165 (2004) (alteration in original)).
Put differently, civic rights were those rights that empowered
individuals to participate in the enterprise of self-governance—
—for example, the right to vote and to serve on juries.
Id.
Although these civic rights are "held by individuals," they are
exercised "as part of the collective enterprise[s]" of self-
governance or administration of justice.
Id.
¶145 "Heller, however, expressly rejects the argument that
the Second Amendment protects a purely civic right"; it protects
a personal, individual right. Id. at 463 (citing Heller,
554
U.S. at 595 ("[T]he Second Amendment confer[s] an individual
right to keep and bear arms.")). Because the right to keep and
bear arms is not a civic right, it was not one of the rights
that could historically be withdrawn from unvirtuous citizens.
Indeed, there is "no historical evidence on the public meaning
of the right to keep and bear arms indicating that
'virtuousness' was a limitation on one's qualification for the
right——contemporary insistence to the contrary falls somewhere
between guesswork and ipse dixit." Binderup v. Att'y Gen. U.S.,
836 F.3d 336, 372 (3d Cir. 2016) (en banc) (Hardiman, J.,
concurring). In short, nothing in the text or history of the
Second Amendment suggests the right to keep and bear arms could
be removed by the government because the government deemed
certain kinds of people unvirtuous.
19
No. 2018AP594-CR.bh
¶146 Putting all this together, the historical record
reveals the following regarding the original public meaning of
the Second Amendment:
The Second Amendment protects an individual right to
keep and bear arms, especially in the defense of one's
home;
The government nevertheless was understood to have
some ability to dispossess those who posed a danger of
engaging in arms-related violence, often due to the
risk of rebellion against the government;
The government had some flexibility to disarm classes
of people that posed a high risk of engaging in arms-
related violence, even if individuals within that
group might themselves not pose that danger; and
No evidence supports the notion that felon-
dispossession laws of the type at issue here are
"longstanding" in the sense that they were
contemplated when the right to keep and bear arms was
safeguarded in the Constitution.
¶147 With this history in mind, we turn to the task of
determining what legal framework or test best effectuates the
Second Amendment's original public meaning.
D. An Implementing Doctrine
¶148 The application of these principles to the case before
us requires some additional work. We need some judicially
enforceable legal framework, or implementing doctrine, to
20
No. 2018AP594-CR.bh
effectuate the constitutional provision's original public
meaning. See supra ¶¶11-12.
¶149 For better or for worse, both federal courts and this
court have created and adopted a tiers of scrutiny approach for
evaluating some types of constitutional claims, especially those
dealing with fundamental rights. Courts typically employ three
tiers of judicial scrutiny: rational basis, intermediate
scrutiny, and strict scrutiny——although these tiers sometimes
work more like a sliding scale. Some have criticized this
approach, not without merit.7 But it has the virtue of putting
the State to its proof when government attempts to regulate in
areas the Constitution generally places outside the permissible
bounds of regulation. While a better analytical tool may be
devised, I accept this general construct in this case as a
reasonable approach to the tricky problem of applying the text
of the Constitution to various kinds of regulations touching the
Second Amendment.
¶150 The United States Supreme Court has described the
right to keep and bear arms as "among those fundamental rights
necessary to our system of ordered liberty." McDonald, 561 U.S.
at 778. This is consistent with its inclusion in the
Constitution alongside other basic, pre-existing rights,
including the freedoms of speech and religion. Generally, when
the government restricts the exercise of rights deemed
E.g., R. George Wright, What if All the Levels of
7
Constitutional Scrutiny Were Completely Abandoned?, 45 U. Mem.
L. Rev. 165 (2014) (advocating for abolition of the tiers of
scrutiny).
21
No. 2018AP594-CR.bh
fundamental, courts apply strict scrutiny. See, e.g., State v.
Post, 197 Wis. 2d 279, 302,
541 N.W.2d 115 (1995). To survive a
challenge, the "statute must further a compelling state interest
and be narrowly tailored to serve that interest."
Id. This
burden rests on the state, not the challenger, and will rarely
succeed.
¶151 An honest evaluation of the historical record
regarding the Second Amendment, however, suggests strict
scrutiny may not be appropriate for all regulations affecting
the right it protects. We must match the doctrine to the scope
of the right, and do so fairly. Prohibiting the possession of
firearms altogether (especially in the home, as with Roundtree),
cuts on its face right to the core of the Second Amendment
right. That said, as best as I can discern from the historical
evidence now available and summarized above, the state was
nevertheless understood to have some authority to dispossess
those who posed a danger of engaging in arms-related violence,
and to do so in ways that were at least somewhat over- or under-inclusive.
¶152 As explained above, in the early English tradition of
protecting the right to keep and bear arms, the government
dispossessed an entire class of citizens based on the fear they
would take up arms in violent rebellion against the Protestant
crown. Surely, not every member of that class was predisposed
to violence against the government, yet the class as a whole was
restricted. Similarly, during the Founding Era, states broadly
dispossessed those unwilling to take an oath to support the
22
No. 2018AP594-CR.bh
cause of independence or otherwise sympathetic to British rule.
Surely not everyone dispossessed under those laws presented a
danger to public safety. Even the 1868 Kansas law that
dispossessed anyone "who has ever borne arms against the
government of the United States" cannot be said to be narrowly
tailored in the context of the Civil War's aftermath. Former
confederate soldiers presumably comprised a not insignificant
class of people in Kansas, many of whom no longer would have
posed a significant risk of violence simply by virtue of their
past war efforts on behalf of the Confederacy.
¶153 As a starting point, then, the individual right to
keep and bear arms, especially for the protection of one's home,
is a fundamental and individual right that should be treated as
such. But where there is a significant risk of arms-related
violence, government retains some authority to restrict this
right in ways that are not narrowly drawn; it may be over- or
under-inclusive. Even though restrictions on the individual and
fundamental right to keep and bear arms should ordinarily be
subject to the highest judicial scrutiny, where the risk of gun-
related violence is at stake, a slightly more deferential
standard is appropriate and in keeping with the historical
record.
¶154 Overly-generous deference to the government, however,
would not be appropriate, especially since the text generally
carves this right out as an impermissible area of government
interference. The State must bear the burden in this context to
show it is acting within constitutional limits, not the other
23
No. 2018AP594-CR.bh
way around. When it comes to individuals who pose a danger of
using a firearm to commit violence, however, strict scrutiny
would seem to demand too much of the government in ways that do
not capture the historical understanding of the right. A more
appropriate analysis in this context is therefore a heightened
scrutiny that still puts the government to its proof. Among the
tools available, intermediate scrutiny best fits the bill.8
¶155 This approach has parallels in other areas of
constitutional law. The Supreme Court applies intermediate
scrutiny in some other circumstances where fundamental rights
are implicated. In the First Amendment context, for example,
the Court analyzes content-based restrictions on speech under
strict scrutiny, but it applies a form of intermediate scrutiny
to time, place, or manner regulations. Compare Texas v.
Johnson, 491 U.S. 397, 412 (1989) (applying "the most exacting
scrutiny" to a flag-burning statute) with United States v.
O'Brien,
391 U.S. 367, 376-77 (1968) (applying intermediate
scrutiny to uphold a defendant's conviction for burning a draft
8I endorse the majority of Justice Rebecca Bradley's
dissent. However, I believe something less than strict scrutiny
is more in keeping with the historical record——and therefore the
original public meaning——for the type of restriction here. I
also agree with the majority that our decision in Mayo v.
Wisconsin Injured Patients and Families Compensation Fund, 2018
WI 78,
383 Wis. 2d 1,
914 N.W.2d 678, is inapplicable. Whatever
analytical framework this court applies to equal protection
cases under the Wisconsin Constitution is not, in my view,
relevant to the framework we should employ to a claim under the
Second Amendment to the federal Constitution. The original
public meaning inquiry should dictate the appropriate legal
test, regardless of the tests this court has employed in
analyzing cases under different constitutional provisions.
24
No. 2018AP594-CR.bh
card); McCullen v. Coakley, 573 U.S. 464, 486 (2014) (applying
intermediate scrutiny to strike down a statute establishing
"buffer zones" around facilities where abortions are performed).
¶156 Intermediate scrutiny places the burden on the State
to show that the law at issue advances an important governmental
interest and is substantially related to that interest.
Gerhardt v. Estate of Moore, 150 Wis. 2d 563, 570-71,
441
N.W.2d 734 (1989). Even when the governmental interest is
important, a law survives intermediate scrutiny only if it "does
not burden substantially more [protected activity] than
necessary to further those interests." Turner Broad. Sys., Inc.
v. FCC,
520 U.S. 180, 189 (1997). As now-Justice Barrett
explained in her dissent in a case challenging this same
Wisconsin law, the fit between the means and the ends must be a
close one. Kanter
919 F.3d at 465 (Barrett, J., dissenting)
("'[A] very strong public-interest justification and a close
means-ends fit' is required before [the defendant] may be
constitutionally subject to the United States and Wisconsin
dispossession statutes.").
¶157 It's worth emphasizing again that the burden when
applying intermediate scrutiny is on the State to prove that the
restriction advances an important interest and is substantially
related to that interest. State v. Baron, 2009 WI 58, ¶14,
318
Wis. 2d 60,
769 N.W.2d 34. Every federal circuit to consider
this matter agrees. See, e.g., Binderup,
836 F.3d at 353; Tyler
v. Hillsdale Cnty. Sherriff's Dept.,
837 F.3d 678, 693 (6th Cir.
2016); Heller v. District of Columbia,
670 F.3d 1244, 1258 (D.C.
25
No. 2018AP594-CR.bh
Cir. 2011). As one court put it, "Strict and intermediate
scrutiny (which we collectively refer to as 'heightened
scrutiny' to distinguish them from the far less demanding
rational-basis review) in effect set up a presumption of
invalidity that the defendant must rebut." Hassan v. City of
New York, 804 F.3d 277, 299 (3d Cir. 2015).
¶158 To summarize, where the government purports to act in
ways the people have made clear in their constitution are
outside the power granted, it is not the citizen who must show
the government has acted unconstitutionally; it is the
government that must demonstrate it has authority to do what it
wishes. The Constitution reflects a presumption that government
action in that zone is unlawful unless proven otherwise. The
historic right to keep and bear arms is an individual and
fundamental right. But the government has broader authority to
restrict the right of those who would use arms for gun-related
violence. Intermediate scrutiny——requiring a substantial
connection to the important governmental interest——appears to
best capture and secure the right in accordance with its
original public meaning where government acts to protect against
those who pose a danger of engaging in gun-related violence.
26
No. 2018AP594-CR.bh
II. APPLICATION
¶159 Roundtree challenges the constitutionality of
Wisconsin's felon-dispossession law as applied to him.9
Wisconsin Stat. § 941.29(1m)(a) provides: "Any person who
possesses a firearm is guilty of a Class G felony if any of the
following applies: (a) The person has been convicted of a
felony in this state." "In this context, 'possess' . . . simply
'means that the defendant knowingly had actual physical control
of a firearm.'" State v. Black, 2001 WI 31, ¶19,
242
Wis. 2d 126,
624 N.W.2d 363. Thus, for anyone convicted of a
felony, § 941.29(1m)(a) operates as a lifetime ban on possessing
firearms for self-defense, hunting, or any other ordinarily
lawful purpose.
¶160 Roundtree brings two types of as-applied challenges.
First, he argues that the State may not constitutionally
dispossess him because the State has not shown that he
personally poses a danger of engaging in gun-related violence.
To support this challenge, Roundtree notes that his underlying
felony, besides being nonviolent, occurred more than ten years
ago, and that nothing he has done since suggests he poses any
heightened risk of using a gun violently. But as we have
discussed, the historical record suggests states may, consistent
9 As we have explained before, "Challenges to the
constitutionality of a statute are generally defined in two
manners: as-applied and facial." Vos, 393 Wis. 2d 38, ¶37.
Where "[a]s-applied challenges address a specific application of
the statute against the challenging party," a facial challenge
argues a statute "operates unconstitutionally in all
applications."
Id., ¶¶37-38.
27
No. 2018AP594-CR.bh
with the right secured by the Second Amendment, dispossess some
people on a somewhat overbroad class-wide basis. This is so
even if some individual members of the class demonstrate their
personal characteristics are inconsistent with a propensity for
violence. Moreover, the challenged law criminalizes firearm
possession for committing a felony, not for any of Roundtree's
personal characteristics or other actions. In other words, the
State has charged Roundtree with the crime of illegally
possessing a firearm on one basis only——his prior felony
conviction. Therefore, a challenge focused on Roundtree's
personal risk of danger is off the mark.
¶161 Roundtree also argues the State may not dispossess him
simply for belonging to either the class of people that
committed any felony or the class of people that committed the
same felony as him.
¶162 It is indisputable that public safety is a compelling
governmental interest. See State v. Cole, 2003 WI 112, ¶23,
264
Wis. 2d 520,
665 N.W.2d 328. This interest is also wellillustrated in the history of the Second Amendment. Wisconsin
Stat. § 941.29(1m)(a) therefore advances an important government
objective.
¶163 Thus, we turn to the second prong of the intermediate
scrutiny analysis: whether a law that dispossesses all felons
is substantially related to the government's interest in
preventing gun-related violence. And again, it's worth
repeating that the State bears the burden to show a close and
28
No. 2018AP594-CR.bh
substantial connection exists. The State tries to meet its
burden by pointing us to two studies.10
¶164 The study most heavily relied on by the State is a
2016 study on recidivism prepared by the Wisconsin Department of
Corrections. See Joseph R. Tatar II & Megan Jones, Recidivism
After Release from Prison, Wisconsin Dep't of Corrections
(August 2016) (hereinafter "DOC Study"). In its analysis, that
study grouped all offenses into four categories: violent
offenses, property offenses, drug offenses, and public order
offenses. Id. at 14. Relevant here, the public order offense
category included failure to pay child support (120 days+) in
addition to crimes like operating while intoxicated, bail
jumping, and operating a vehicle to elude an officer. Id. The
State primarily relies on the study's conclusion that for those
who committed a prior public order offense, 21.4 percent of
recidivists in that category went on to commit a violent offense
within three years. The remaining 78.6 percent of crimes
committed within three years by recidivists whose original
incarceration was for a public order offense committed non-
violent offenses (either a drug offense, property offense, or
another public order offense). Id.
10The majority, in a block quote to the majority opinion in
Kanter v. Barr, 919 F.3d 437, 449 (7th Cir. 2019), notes two
additional studies that are not discussed by the State in its
briefing. Majority op., ¶50. Because it is the State's burden
to satisfy the substantial relationship prong of intermediate
scrutiny, its failure to discuss these studies should preclude
the majority's consideration of them. This court should not
attempt to prove the State's case for it.
29
No. 2018AP594-CR.bh
¶165 The State erroneously cites this study for a
proposition it most certainly does not support. It
characterizes the DOC Study as concluding that 21.4 percent of
all those released after committing a public order offense went
on to commit a violent offense. That's simply not what the
study says, and it is an egregious error in light of its almost
singular prominence in the State's effort to prove the requisite
connection. This 21.4 percent is not the percentage of all
public order offenders who, after release, committed violent
crimes. Rather, it considers only those who committed another
crime after committing a public order offense, and conveys the
percentage of those public order offense recidivists who
committed a violent crime. In other words, this 21.4 percent
figure has nothing to do with, and makes no reference to, those
who never recidivate after committing a public order offense.
It should be obvious, then, that this statistic offers no
assistance in establishing the relationship between past crime
and a person's risk to commit gun-related violent crime in the
future, which is the core inquiry of the intermediate scrutiny
analysis.
¶166 The second study offered by the State surveys "5,923
authorized purchasers of handguns in California in 1977," 3,128
of whom had at least one prior misdemeanor conviction at the
time of purchase. Garen J. Wintemute et al., Prior Misdemeanor
Convictions as a Risk Factor for Later Violent and Firearm-
Related Criminal Activity Among Authorized Purchasers of
Handguns, 280 J. Am. Med. Ass'n 2083, 2083 (1998) (hereinafter
30
No. 2018AP594-CR.bh
"Wintemute Study"). Specifically, the State points to that
study's conclusion that "even handgun purchasers with only 1
prior misdemeanor conviction and no convictions or offenses
involving firearms or violence were nearly 5 times as likely as
those with no prior criminal history to be charged with new
offenses involving firearms or violence." Id. Consider me
unsurprised that people with criminal records who purchase
handguns are more likely to commit future crime than those
without a criminal record. But this correlation hardly
demonstrates the close and substantial relationship required to
justify this law. While those with a prior criminal record are
surely more likely to commit future crime, the vast majority of
people in the study who had prior criminal records did not
commit a new violent offense. And the State must demonstrate
that dispossessing the entire class that it chose will
substantially further the State's efforts to remediate the risk
of gun-related violence.11 This study falls far short of
demonstrating why those convicted of illegal possession of
certain fish, tax fraud, or failure to pay child support should
be dispossessed in the interest of preventing gun-related
violent crime.
¶167 The State's correlation-centric reasoning——that Wis.
Stat. § 941.29(1m)(a) substantially furthers the fight against
gun-related violence simply by virtue of a correlation between
past crime of any sort and future violent crime——does not meet
Importantly, the Wintemute Study does not actually
11
analyze felons as a class because generally, felons will not be
authorized handgun purchasers.
31
No. 2018AP594-CR.bh
the mark. Playing this logic out further, suppose those who
previously declared bankruptcy are modestly more likely to
commit violent crime in the future?12 Or those who do not have a
bachelor's degree by the time they are 25?13 How about those who
were born out of wedlock,14 or who fall below the poverty line?15
Taking the State's argument on its face, dispossession laws
barring these classes of persons (which impact not a small
amount of the population) would survive as long as the State
could prove that these features are correlated with an increased
risk of committing violent crime with a firearm. Modest
correlation, however, is simply not enough. And at best, that
is all the State has here.
Gercoline van Beek, Vivienne de Vogel & Dike van de
12
Mheen, The Relationship Between Debt and Crime: A Systematic
and Scoping Review, European J. of Probation, Oct. 2020, at 1
(showing "a strong association between debt and crime whereby
debt is a risk factor for crime").
Lance Lochner & Enrico Moretti, The Effect of Education
13
on Crime: Evidence from Prison Inmates, Arrests, and SelfReports, 94 The Am. Econ. Rev. 155, 156-57 (2004) ("Instrumental
variable estimates reveal a significant relationship between
education and incarceration . . . .").
Todd D. Kendall & Robert Tamura, Unmarried Fertility,
14
Crime, and Social Stigma, 53 J.L. & Econ. 185, 213 (2010) ("[A]n
increase of 10 nonmarital births per 1,000 live births is
associated with an increase in future murder and property crime
rates between 2.4 and 4 percent.").
U.S. Dep't of Justice, NCJ 248384, Household Poverty and
15
Nonfatal Violent Victimization, 2008-2012, 1 (2014) ("Persons in
poor households had a higher rate of violence involving a
firearm (3.5 per 1,000) compared to persons above the FPL (0.8-
2.5 per 1,000).").
32
No. 2018AP594-CR.bh
¶168 Including all felonies in Wis. Stat. § 941.29(1m)(a)'s
reach, no matter how violent and no matter how serious, is
"wildly overinclusive." Kanter,
919 F.3d at 466 (Barrett, J.,
dissenting). It is an extraordinarily broad class that lacks a
substantial relationship to the harm it seeks to remedy.
Id.
The fit between means and ends must be close——not perfect, but
close. The State's evidence is far from showing that
dispossessing all felons forever bears a close or substantial
relationship to remediating the danger of gun-related violence.
¶169 If the class of all felons is too broad, perhaps the
State could nonetheless show that criminalizing possession of
firearms based on the particular underlying felony survives
constitutional scrutiny. But the State does not even purport to
argue that those who have failed to pay child support or
committed other analogous crimes pose any risk of committing
gun-related violence as a consequence of their underlying
felony, nor do its studies support that conclusion. The State
therefore fails to meet its burden of proof here as well.
¶170 The important goal of protecting against gun-related
violence does not seem to be furthered by dispossessing those
who have not committed a violent act with a gun, and indeed have
not committed a violent act at all. The State does not meet
this challenge head on; it has not met its burden to prove a
close and substantial relationship between the means and ends of
the prohibition. Accordingly, Roundtree's conviction for
possession of a firearm, a criminal prohibition triggered
33
No. 2018AP594-CR.bh
because he was convicted of failure to pay child support for 120
days, violates the Second Amendment and is unconstitutional.
III. CONCLUSION
¶171 We are bound to interpret and apply the Constitution
as written. A careful study of the history surrounding the
right to keep and bear arms as protected by the Second Amendment
demonstrates that while the right to keep arms in the home for
self-defense is within the core of the right, some class-based
restrictions on firearm possession are permissible to protect
against the danger of gun-related violence. Felon-dispossession
laws may be permissible under this historical protection, but
only where the State shows the restriction substantially
advances the State's interest in protecting against gun-related
violence. Here, however, the State did not carry its burden to
show that Wisconsin's dispossession law satisfies this standard
as applied to Roundtree. Therefore, his conviction violates the
Second Amendment. I respectfully dissent.
34
No. 2018AP594-CR.bh
1
