State v. Mitchell L. Christen

2021 WI 39SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1767-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Mitchell L. Christen,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 391 Wis. 2d 650,943 N.W.2d 357(2020 – unpublished)
OPINION FILED: May 4, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 21, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Nicholas McNamara
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ.,
joined. HAGEDORN, J., filed a concurring opinion. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Steven Roy, Sun Prairie. There was an oral argument by
Steven Roy.
For the plaintiff-respondent, there was a brief filed by
Nicholas S. DeSantis, assistant attorney general; with whom on
the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Nicholas S. DeSantis.
2021 WI 39NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1767-CR
(L.C. No. 2018CM1998)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. MAY 4, 2021
Mitchell L. Christen, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ.,
joined. HAGEDORN, J., filed a concurring opinion. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, State v.
Christen, No. 2019AP1767-CR, unpublished slip op. (Wis. Ct. App.
Mar. 17, 2020), affirming the Dane County circuit court's1
judgment convicting Mitchell Christen of operating or going
1 The Honorable Nicholas J. McNamara presided.
No. 2019AP1767-CR
armed with a firearm while intoxicated, contrary to Wis. Stat.
§ 941.20(1)(b) (2017-18).2
¶2 Christen challenges his conviction arguing that Wis.
Stat. § 941.20(1)(b) is unconstitutional as applied to him. He
does not raise a facial challenge to the statute. Specifically,
Christen claims that the statute violates his fundamental Second
Amendment right to armed self-defense as held in District of
Columbia v. Heller, 554 U.S. 570 (2008).3 In Heller, the United
States Supreme Court recognized that the core of the Second
Amendment is the right to possess or carry a firearm for self-
defense. Id. at 635.
¶3 However, as to Christen's as-applied challenge, we
conclude Wis. Stat. § 941.20(1)(b) does not strike at the core
right of the Second Amendment because he did not act in self-
defense. Moreover, we conclude that § 941.20(1)(b) does not
severely burden his Second Amendment right. Accordingly, we
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3 We note that the United States Supreme Court in District
of Columbia v. Heller, 554 U.S. 570 (2008), stated this right in
a variety of ways: "the individual right to possess and carry
weapons in case of confrontation," id. at 592; "an individual
right to use arms for self-defense," id. at 603; and "the right
of law-abiding, responsible citizens to use arms in defense of
hearth and home," id. at 635. Each of these formulations makes
clear that the Second Amendment protects the right of an
individual to possess and carry weapons for self-defense. See
State v. Roundtree, 2021 WI 1, ¶35, 395 Wis. 2d 94, 952
N.W.2d 765 (identifying the core Second Amendment right detailed
in Heller as "the right of a law-abiding, responsible citizen to
possess and carry a weapon for self-defense").
2
No. 2019AP1767-CR
apply intermediate scrutiny to Christen's as-applied challenge.
Because § 941.20(1)(b) is substantially related to the important
government objective of protecting public safety, it survives
intermediate scrutiny as applied to Christen.
¶4 Accordingly, we conclude that Christen's as-applied
challenge to Wis. Stat. § 941.20(1)(b) fails. Therefore, we
affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 This case involves somewhat conflicting testimony
about Christen arming himself in self-defense. Christen, his
roommates, and his roommates' friends had been drinking alcohol
on the evening of February 2, 2018. There was conflicting
testimony about how much and to what extent there was arguing
and pushing among them. However, the testimony was
uncontroverted that Christen did arm himself. The jury was
called upon to weigh and consider the evidence and determined
that Christen went armed, was intoxicated, and did not act in
self-defense.
¶6 The jury heard that Christen and his two roommates,
B.H. and C.R., had a rocky relationship. This rocky
relationship came to a head on the night that gave rise to this
case, February 2, 2018. On that night, Christen and B.H. got in
an argument, which C.R. and a friend, K.L, overheard. Prior to
the argument, all of the men had been drinking alcohol. At the
conclusion of the initial argument, Christen went back to his
room, and C.R., B.H., and K.L. left to go to a bar. B.H.
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No. 2019AP1767-CR
testified that before they went to the bar that night Christen
said "something aggressive" and had called C.R.'s mother a
"piece of trash drunk."
¶7 Some point later in the night, C.R., B.H., and K.L.
returned to the apartment. Another friend of the men, M.A.,
joined them after they returned. Christen opened the door for
M.A. and said, "Here's the asshole roommates you were looking
for . . . ."
¶8 The jury also heard that Christen, C.R., and M.A were
in an argument. Christen had insulted C.R.'s mother, and M.A.
intervened. Christen testified that M.A. pushed Christen with
his chest up against Christen's doorframe. Christen testified
that, as a response to M.A.'s intervention, he said, "[he]
wasn't going to be a victim and [he] had a weapon and [he]
wasn't afraid to use it." He testified that he then pointed to
his handgun. He continued his testimony, stating, "I just
turned and pointed that it was where I had kept it on my
nightstand and I said I feel intimidated. I'm into my bedroom,
which is small. I have nowhere else to go. I was presenting
the weapon as a deterrent." Upon Christen pointing to the
handgun, the argument ended, and Christen closed his bedroom
door.
¶9 At some point, M.A. stopped in front of Christen's
room, and they exchanged words. M.A. testified that he knew
Christen was upset so he followed Christen to his room and said,
"hey, just take it easy, have fun with us." M.A. stated that
Christen responded by picking up his firearm and saying, "get
4
No. 2019AP1767-CR
out of here or I will shoot you." M.A. testified that he shut
the door and returned to the others. C.R. similarly testified
that he watched M.A. stop in front of Christen's room and saw a
"gun come up between [M.A.] and [Christen]." He confirmed that
M.A. shut the door, returned to the others, and said "[your]
fucking roommate just pulled a gun on me. What the fuck."
Christen characterized the incident differently. He stated that
after M.A. opened the door, he picked up his handgun, "held it
sideways towards the wall away from [M.A.]," and told M.A. to
leave, which M.A. did.
¶10 Christen began recording the situation on his
cellphone after this second interaction with M.A. The jury
viewed the video at trial; it began with Christen saying that
"[i]f someone comes through this door [he] will shoot them." He
further told M.A., who was standing in front of his door, that
M.A. "should get the fuck out of here." In response, M.A.
threatened to call 911. Christen stated that he didn't "give a
fuck" and that M.A. needed to leave. M.A. responded,
"Seriously. Be nice, be nice man, be nice." Christen can later
be heard saying on the video the following:
They're not listening; I've asked them to leave. I'm
within my right. I said go away, get away from my
house, away from my room. They should leave it would
just be smart for them.
¶11 Not long after that, Christen said that he was going
to the kitchen with his handgun because he did not "trust
anybody in this house." Christen came out of his room in
underwear displaying a handgun tucked in his waistband. The
5
No. 2019AP1767-CR
video then becomes jostled. The testimony revealed that M.A.
disarmed him, and Christen returned to his room. C.R. testified
that he heard Christen cock his shotgun, which the video
confirms. K.L. disassembled the handgun and placed the
disassembled handgun in the cabinets.
¶12 After he returned to his room, Christen stopped the
recording on his phone and called 911. The 911 recording was
also played for the jury. Christen told the 911 operator that
M.A. stole his handgun. He also stated that "[i]f someone comes
through [his] door, they're getting a fucking face full of
lead." Over the course of the nearly 20-minute 911 phone call,
Christen denied threatening M.A. Further, when the 911
dispatcher asked Christen whether M.A. attacked him before he
left with his handgun, Christen said "not physically."
¶13 The police arrived in response to Christen's 911 call.
Christen's two roommates and their two friends exited the
apartment and reported to the police that Christen was
intoxicated and had threatened them with his firearms. Christen
remained in the apartment for approximately 30 minutes before
exiting the apartment unarmed. One of the officers who
interacted with Christen after he exited the apartment testified
that as he spoke to Christen he "observed an odor of intoxicants
coming from [Christen's] breath and mouth [and] his eyes [were]
glassy and bloodshot." Other members of law enforcement
testified that Christen appeared "worked up" and "paranoid."
6
No. 2019AP1767-CR
¶14 The police arrested Christen and brought him to the
booking area of the jail. While in the booking area, Christen
claimed he armed himself in self-defense.
¶15 On February 4, 2018, the circuit court found probable
cause that Christen did commit a crime. Two days later, the
State filed a criminal complaint in the circuit court charging
Christen with three counts: Count 1, pointing a firearm at
another, contrary to Wis. Stat. § 941.20(1)(c), a Class A
Misdemeanor; Count 2, operating or going armed with a firearm
while intoxicated, contrary to § 941.20(1)(b), a Class A
Misdemeanor; and Count 3, disorderly conduct, contrary to Wis.
Stat. § 947.01(1), a Class B Misdemeanor. Christen made his
initial appearance the same day.
¶16 On March 21, 2018, Christen filed a motion to dismiss
Count 2, operating or going armed with a firearm while
intoxicated, arguing that it violated his Second Amendment
right. The circuit court held a hearing on this motion to
dismiss on July 13, 2018. The court concluded that Wis. Stat.
§ 941.20(1)(b), the statute that Christen challenged, "is
focused narrowly enough to withstand [the] constitutional
challenge that's been raised" and denied Christen's motion.
¶17 On October 17, 2018, Christen's jury trial began.
During the trial, the jury heard testimony from Christen, the
individuals in the apartment, and the officers who arrived on
the scene. After both sides rested their arguments, the court
instructed the jury.
7
No. 2019AP1767-CR
¶18 As part of the jury instructions, the circuit court
read a self-defense instruction on each count. The circuit
court informed the jury that it could find Christen guilty of
operating or going armed with a firearm while intoxicated only
if it was "satisfied beyond a reasonable doubt
that . . . [Christen] did not act lawfully in self-defense."
The parties then made closing arguments, and the court submitted
the case to the jury.
¶19 After deliberating, the jury returned a verdict of not
guilty on Count 1, pointing a firearm at another, and guilty on
Counts 2 and 3, operating or going armed with a firearm while
intoxicated and disorderly conduct, respectively. Thus, the
jury concluded affirmatively that the State proved beyond a
reasonable doubt that Christen did not operate or go armed with
a firearm nor engaged in disorderly conduct in self-defense.
The following day, the circuit court sentenced Christen to four
months in the Dane County jail for Count 2 and two months in the
Dane County jail for Count 3, to run concurrently. The circuit
court subsequently held the sentence in abeyance pending appeal.
¶20 On September 13, 2019, Christen appealed his
conviction of operating or going armed with a firearm while
intoxicated, arguing that Wis. Stat. § 941.20(1)(b) was
unconstitutional as applied to him. The State did not file a
response to this appeal.
8
No. 2019AP1767-CR
¶21 The court of appeals4 affirmed the judgment of
conviction. Christen, No. 2019AP1767-CR, ¶1. The court of
appeals determined that Christen failed to develop his as-
applied challenge based on the facts of his particular case.
Id., ¶7. The court of appeals held that this failure to apply
the law to his particular facts was "so complete that [the court
did] not need to address the standard of review or other points
referenced in his brief" and affirmed Christen's judgment of
conviction. Id.
¶22 On April 16, 2020, Christen petitioned this court for
review; we granted his petition.
II. STANDARD OF REVIEW
¶23 Christen asks us to review whether Wis. Stat.
§ 941.20(1)(b) 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. Roundtree, 2021 WI 1, ¶12, 395 Wis. 2d 94,
952 N.W.2d 765.
¶24 This case also requires us to determine the
appropriate level of scrutiny to guide our analysis. "This
issue likewise presents a question of law that we determine
independently." Id., ¶13.
4 Because Christen was appealing a misdemeanor conviction,
one court of appeals judge, the Honorable Brian W. Blanchard,
heard his appeal. See Wis. Stat. § 752.31(2)(f), (3).
9
No. 2019AP1767-CR
III. ANALYSIS
¶25 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."5 The right to keep and bear
arms is an individual "core" right protected and is a "right of
law abiding, responsible citizens to use arms in defense of
hearth and home." Heller, 554 U.S. at 635. However, "[l]ike
most rights, the right secured by the Second Amendment is not
unlimited." Id. at 626. Historically, "the right was not a
right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose." Id. The Heller Court
explained:
[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
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.
Id. at 626-27. The Court described these regulations and
prohibitions as "presumptively lawful." Id. at 627 n.26. Two
years after Heller, the Court held that the Second Amendment was
5Similarly, Article I, section 25 of the Wisconsin
Constitution provides: "The people have the right to keep and
bear arms for security, defense, hunting, recreation or any
other lawful purpose." However, Christen exclusively focuses
his arguments on the Second Amendment, so we will exclusively
focus our analysis on the Second Amendment as well. See
Roundtree, 394 Wis. 2d 94 (focusing exclusively on the Second
Amendment in a similar challenge).
10
No. 2019AP1767-CR
incorporated against the States. McDonald v. City of Chicago,
561 U.S. 742, 750 (2010). This means that the Second
Amendment's protections "apply identically to the States and the
Federal Government." Id. at 766 n.14.
¶26 Christen was convicted of possession of a firearm
while intoxicated contrary to Wis. Stat. § 941.20(1)(b), which
provides that a person who "[o]perates or goes armed with a
firearm while he or she is under the influence of an intoxicant"
"is guilty of a Class A misdemeanor."
¶27 Wisconsin Stat. § 941.20(1)(b) bars the use of a
firearm when the individual is intoxicated. This statute does
not completely dispossess a lawful firearm owner from ownership.
It merely limits the circumstances under which the lawful
firearm owner may use or carry the firearm, specifically while
intoxicated. Further, a lawful firearm owner, even if
intoxicated, cannot be convicted under § 941.20(1)(b) if he or
she acts in self-defense.
¶28 Christen argues that Wis. Stat. § 941.20(1)(b) is
unconstitutional as applied to him because it burdens his Second
Amendment right to armed self-defense recognized in Heller. He
frames the issue in terms of whether the consumption of a legal
intoxicant voids the Second Amendment's guarantee of the right
to carry a firearm in self-defense. He argues that his
possession of his firearms is within the scope of the Second
Amendment because he carried his firearms in his home for the
purpose of self-defense. Specifically, Christen asserts that he
was armed in response to an ongoing situation in which he was
11
No. 2019AP1767-CR
afraid he may need to resort to self-defense, despite the jury's
conclusion that he did not act in self-defense. He requests
that this court ignore the two-step approach that has become the
consensus framework for analyzing such Second Amendment
challenges6 and that this court applied in Roundtree. 394
Wis. 2d 94, ¶¶39-40.
¶29 While this two-step approach has been widely adopted,
courts are divided on which level of scrutiny to apply if a law
substantially burdens the core Second Amendment right.7 Christen
asserts that, if we continue to utilize the two-step approach,
we should apply strict scrutiny to his case because the right to
bear arms is fundamental and the statute burdens the core of the
Second Amendment. He contends that Wis. Stat. § 941.20(1)(b)
cannot survive strict scrutiny review and that, even if this
court were to apply intermediate scrutiny, the law is still
unconstitutional as applied to him.
6 See, e.g., Gould v. Morgan, 907 F.3d 659, 668 (1st Cir.
2018) (collecting cases that applied the two-step approach from
the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth,
and D.C. Circuits); GeorgiaCarry.org, Inc. v. U.S. Army Corps of
Eng'rs, 788 F.3d 1318, 1322 (11th Cir. 2015) (applying the two-
step approach); see also State v. Weber, No. 2019-0544, 2020 WL
7635472, at ¶13 (Ohio Dec. 23, 2020) (same); People v. Burns, 79
N.E.3d 159, ¶38 (Ill. 2015) (same); Hertz v. Bennett, 751 S.E.2d
90, 93 (Ga. 2013) (same).
7 Compare Mai v. United States, 952 F.3d 1106, 1115 (9th
Cir. 2020) (applying strict scrutiny to "laws that both
implicate a core Second Amendment right and place a substantial
burden on that right" while applying intermediate scrutiny in
any other context) cert. denied, No. 20-819, 2021 WL 1602649(mem.) (U.S. Apr. 26, 2021), with Ezell v. City of Chicago, 651
F.3d 684, 708 (7th Cir. 2011) (applying intermediate scrutiny on
a sliding scale).
12
No. 2019AP1767-CR
¶30 We begin our analysis by discussing as-applied
challenges generally. We then apply the established two-step
approach to Second Amendment challenges that we set forth and
applied in Roundtree, to Christen's challenge to Wis. Stat.
§ 941.20(1)(b).
A. As-Applied Challenges Generally
¶31 As we have repeatedly stated, there is a distinction
between a facial and as-applied challenge. See, e.g., Waupaca
Cnty. v. K.E.K., 2021 WI 9, ¶¶14-15, 395 Wis. 2d 460, 954
N.W.2d 366. "Under a facial challenge, the challenger must show
that the law cannot be enforced under any circumstances." Id.,
¶14 (quoting Winnebago Cnty. v. C.S., 2020 WI 33, ¶14, 391
Wis. 2d 35, 940 N.W.2d 875).
¶32 "In contrast, in an as-applied challenge, we assess
the merits of the challenge by considering the facts of the
particular case in front of us 'not hypothetical facts in other
situations.'" Id., ¶15 (quoting League of Women Voters of Wis.
Educ. Network, Inc. v. Walker, 2014 WI 97, ¶13, 357 Wis. 2d 360,
851 N.W.2d 302). As we recently explained in Roundtree:
For an as-applied challenge to succeed, the challenger
must demonstrate that the challenger's constitutional
rights were actually violated. If such a violation
occurred, the operation of the law is void as to the
facts presented for the party asserting the claim.
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.
395 Wis. 2d 94, ¶18 (citations omitted).
13
No. 2019AP1767-CR
B. Wisconsin Stat. § 941.20(1)(b) Survives
Christen's Challenge.
¶33 Christen argues in his as-applied challenge that Wis.
Stat. § 941.20(1)(b) interfered with his fundamental right to
bear firearms in self-defense, which the Second Amendment
guarantees to him. Christen asserts that, despite his ingestion
of alcoholic intoxicants, he was carrying his firearms for self-
defense, ignoring that the jury concluded that he did not act in
self-defense. As this is an as-applied challenge, he must
demonstrate that under these facts, his constitutional rights
were violated. He does not assert that the statute is
unconstitutional in all applications.
¶34 As explained in Roundtree, "[g]enerally, Second
Amendment challenges require this court to undertake a two-step
approach." 395 Wis. 2d 94, ¶39. Under this two-step approach,
"[w]e ask first 'whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amendment's
guarantee.'" Id. (quoting State v. Herrmann, 2015 WI App 97,
¶9, 366 Wis. 2d 312, 873 N.W.2d 257). "If the answer is no,
then the inquiry ends." Id. "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., ¶40
(quoting Herrmann, 366 Wis. 2d 312, ¶9). We conduct this second
inquiry through a means-end analysis and application of a
heightened level of scrutiny. See, e.g., id., ¶¶38, 41
14
No. 2019AP1767-CR
(applying intermediate scrutiny to a challenge to a felon-in-
possession law).
¶35 Christen raises a Second Amendment challenge arguing
that we should apply a "categorical approach" despite the fact
that we have adopted a two-step approach. See id., ¶¶26-40. We
continue to reject a categorical approach and apply the same
two-step approach we adopted in Roundtree.
1. Step one: Does Wis. Stat. § 941.20(1)(b)
impose a burden on conduct falling within
the Second Amendment's scope?
¶36 The first step in the inquiry is to consider "whether
the regulated activity falls within the scope of the Second
Amendment." Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)
(quoted source omitted). "This is a textual and historical
inquiry; if the government can establish that the challenged law
regulates activity falling outside the scope of the right as
originally understood, then 'the regulated activity is
categorically unprotected, and the law is not subject to further
Second Amendment review.'" Id. (quoted source omitted). Thus,
we must determine whether the regulated activity here, operating
or going armed while intoxicated, falls outside the scope of the
Second Amendment as historically understood. If it does fall
outside the scope, the inquiry ends, and the challenged statute
does not conflict with the Second Amendment.
¶37 We recognize that Wisconsin has a long tradition of
criminalizing the use and carrying of a firearm while
intoxicated. § 3, ch. 329, Laws of 1883. A similar tradition
15
No. 2019AP1767-CR
of laws regulating firearms and alcohol also existed in some
form at the time of the founding. See State v. Weber, No.
2019-0544, 2020 WL 7635472, at ¶103 (Ohio Dec. 23, 2020)
(DeWine, J., concurring in judgment) (collecting colonial
statutes that criminalize the use of a firearm while
intoxicated). Such statutes continued to proliferate and expand
throughout the United States during the 19th and 20th centuries.
See id., at ¶20 (collecting statutes criminalizing the use or
carrying of a firearm while intoxicated enacted during the 19th
and 20th centuries).
¶38 While these statutes provide a relevant, perhaps even
persuasive backdrop that shows a long history of criminalizing
the use and carrying of firearms while intoxicated, it is
debatable whether these statutes show that the use and carrying
of firearms in such circumstances is categorically unprotected.
Compare People v. Deroche, 829 N.W.2d 891, 896 (Mich. Ct. App.
2013) (concluding that the historical evidence demonstrates that
the use and carrying of a firearm while intoxicated was within
the scope of the Second Amendment) and Dissent, infra (same)
with Weber, 2020 WL 7635472, at ¶108 (DeWine, J., concurring in
judgment) (concluding that the historical evidence demonstrates
that the use and carrying of a firearm while intoxicated was
outside the scope of the Second Amendment) and Concurrence,
infra (same).
¶39 However, we need not resolve this case on step one
because, as we explain below, Christen's challenge fails under
step two. As such, we assume, without deciding, that Wis. Stat.
16
No. 2019AP1767-CR
§ 941.20(1)(b) regulates conduct that falls within the scope of
the Second Amendment.8 See Weber, 2020 WL 7635472, at ¶22
(assuming step one is answered affirmatively and collecting
cases where the court assumed arguendo step one).
2. Step two: Is Wis. Stat. § 941.20(1)(b)
unconstitutional as applied to Christen based on the
appropriate means-end analysis?
¶40 In considering step two, Heller dictates that we apply
some form of heightened scrutiny, Heller, 554 U.S. at 628 n.27,
so we first must determine what level of heightened scrutiny to
apply to Christen's challenge. We then must apply that level of
scrutiny.
a. Level of scrutiny
¶41 Christen and the State disagree as to the level of
scrutiny that we should employ in this case. It is clear that
we cannot use the rational basis level of scrutiny to review
statutes that are alleged to burden core Second Amendment
rights. Id. ("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."). So, we must
determine whether intermediate or strict scrutiny applies to
Christen's as-applied challenge.
¶42 In Roundtree, we adopted the Seventh Circuit's
approach from Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.
8We leave further analysis of step one for another case.
No inferences should be drawn from our assumption and preference
to decide these issues based upon our analysis in step two.
17
No. 2019AP1767-CR
2011), 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 that
right." Roundtree, 395 Wis. 2d 94, ¶¶26, 34 (quoting Ezell, 651
F.3d at 703). "[T]he core right identified in Heller is 'the
right of a law-abiding, responsible citizen to possess and carry
a weapon for self-defense . . . .'" Id., ¶35 (quoting United
States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010)). Because
Christen's as-applied challenge argues that Wis. Stat.
§ 941.20(1)(b) burdens this core right that Heller identified,
we do not need to conclusively determine the entire scope of the
Second Amendment to resolve this case. See id., ¶36; Serv. Emp.
Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946
N.W.2d 35 ("We do not step out of our neutral role to develop or
construct arguments for parties; it is up to them to make their
case."). Accordingly, this case requires us to determine how
close § 941.20(1)(b) comes to Christen's right to possess and
carry a weapon for self-defense and the severity of the burden
§ 941.20(1)(b) imposes on that right.
i. Wisconsin Stat. § 941.20(1)(b) does not strike at
the core of the Second Amendment.
¶43 Christen argues that Wis. Stat. § 941.20(1)(b) strikes
at the core of the Second Amendment. He asserts that he has a
core fundamental Second Amendment right to possess and bear his
firearms in anticipation of the need for self-defense, whether
intoxicated or not, so as to necessitate the highest tier of
scrutiny——strict scrutiny. While he does have the right to
18
No. 2019AP1767-CR
"possess and carry weapons in case of confrontation," "the right
secured by the Second Amendment is not unlimited." Heller, 554
U.S. at 592, 626. As such, we must consider how close to the
Second Amendment core right that § 941.20(1)(b) strikes.
¶44 Although at trial Christen successfully raised9 the
issue of self-defense, the jury found beyond a reasonable doubt
that Christen did not act in self-defense. Wisconsin has
codified the privilege of self-defense. § 939.48(1) ("A person
is privileged to threaten or intentionally use force against
another for the purpose of preventing or terminating what the
person reasonably believes to be an unlawful interference with
his or her person by such other person."). This self-defense
privilege extends further in the context of the home where the
privilege may include the presumptive right to use deadly force.
See § 939.48(1m)(ar). When a defendant successfully raises the
self-defense privilege, the State has the burden to disprove
self-defense beyond a reasonable doubt at trial. State v. Head,
2002 WI 99, ¶106, 255 Wis. 2d 194, 648 N.W.2d 413. If the State
cannot prove beyond a reasonable doubt at trial that the
defendant did not act in self-defense, then the self-defense
privilege serves as "a defense to prosecution for any crime
based on that conduct." § 939.45.
"'Successfully' putting self-defense at issue means the
9
defendant has satisfied the burden of production." State v.
Austin, 2013 WI App 96, ¶12 n.5, 349 Wis. 2d 744, 836
N.W.2d 833.
19
No. 2019AP1767-CR
¶45 Throughout his brief, Christen continually asserts
that he went armed for self-defense. However, the jury was
instructed on self-defense and concluded that Christen did not
act in self-defense. As Christen raises an as-applied
challenge, his challenge must rest upon these facts. The jury
heard competing testimony and witnesses and was instructed to
consider whether Christen was armed in self-defense. Given that
the jury concluded that Christen did not act in self-defense, it
would be irreconcilable to conclude that his right to
self-defense was somehow infringed. See Head, 255 Wis. 2d 194,
¶106.10 As such, the facts of this case, upon which Christen
must rely for his as-applied challenge, are that he was not
operating or going armed with a firearm in self-defense.
¶46 Christen also seems to infer that his consuming
intoxicants in his own home is a relevant fact that makes Wis.
Stat. § 941.20(1)(b) unconstitutional as applied to him. By
this assertion, he could mean various things. His argument is
less than cogent. However, if he were to possess his firearm in
his home and not ingest any intoxicants, this statute would not
Christen does not assert that the self-defense jury
10
instruction was flawed. Furthermore, Christen does not assert
that the scope of the self-defense jury instruction contradicts
the scope of self-defense that the Second Amendment protects.
As such, we will not develop this argument for him. See Serv.
Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d
38, 946 N.W.2d 35 ("We do not step out of our neutral role to
develop or construct arguments for parties; it is up to them to
make their case."). Accordingly, we assume, without deciding,
that the scope of the self-defense jury instruction is
commensurate with the scope of self-defense that the Second
Amendment protects.
20
No. 2019AP1767-CR
be implicated. If he were ingesting intoxicants, in his home,
and possessing his firearm, that is not prohibited under the
statute unless he reaches the point of intoxication. If he were
to possess his firearm in self-defense, even if intoxicated, he
would have a defense under Wis. Stat. § 939.48. Here, the jury
concluded that he possessed his firearm, while he was
intoxicated, and that he was not acting in self-defense. That
is in fact a violation of § 941.20(1)(b).
¶47 As a general rule, it is not illegal to possess a
firearm. Similarly, it is generally not illegal to be
intoxicated in one's own home. Furthermore, the right to self-
defense is "most acute" in the home. Heller, 554 U.S. at 628.
However, Christen's assertion that the Second Amendment allows
him to possess a firearm in his own home even though he is at
the point of intoxication, regardless of whether he is acting in
self-defense, misses the mark.
¶48 Here, the jury had to conclude that Christen was not
merely consuming intoxicants in his own home——the jury had to
conclude that Christen was instead intoxicated, which means
"under the influence of an intoxicant." "Under the influence of
an intoxicant" is a legal term in Wisconsin law that requires,
as the jury concluded, that "the defendant's ability to handle a
firearm was materially impaired because of the consumption of an
alcoholic beverage." Wis. JI——Criminal 1321, at 1 (2019). For
the jury to find that someone was "under the influence," the
State must establish beyond a reasonable doubt that "the person
[had] consumed a sufficient amount of alcohol to cause the
21
No. 2019AP1767-CR
person to be less able to exercise the clear judgment and steady
hand necessary to handle a firearm." Id. at 2. Because the
jury here found Christen guilty of operating or going armed with
a firearm while intoxicated, the jury had to conclude that he
was intoxicated and "less able to exercise the clear judgment
and steady hand necessary to handle a firearm." Id.
¶49 Moreover, this case does not present a factual
scenario wherein a person was drinking intoxicants in his or her
own home, alone, and possessing a gun. The facts of this as-
applied challenge indeed reflect that Christen was not merely in
his home ingesting alcoholic beverages and possessing his
firearm. The facts of this case are that Christen was in a
shared apartment with his two cohabitants and two other guests.
The circumstances were such that the jury concluded that
Christen was disorderly, and that he operated or went armed with
a firearm while he was intoxicated and that he was not acting in
self-defense.
¶50 Consequently, we are not persuaded that Wis. Stat.
§ 941.20(1)(b) strikes at Christen's fundamental core Second
Amendment right to possess or carry a weapon for self-defense,
pursuant to the Second Amendment. This militates against
applying strict scrutiny.
ii. Wisconsin Stat. § 941.20(1)(b) does not impose
a severe burden on Christen's core
Second Amendment right.
¶51 Furthermore, Wis. Stat. § 941.20(1)(b) has limited
application. The statute does not strip the intoxicated
22
No. 2019AP1767-CR
individual of the right to self-defense——the statute does not
strip firearm owners of the right to own and possess the
firearm. Section 941.20(1)(b) also does not prohibit a firearm
from being in a home or provide that the gun be rendered
inoperable if someone in the home is intoxicated. Rather, it
limits the circumstances under which the lawful firearm owner
may use or carry the firearm, specifically while intoxicated.
But this restriction is even more limited, as it does not apply
when the intoxicated individual uses or carries the firearm in
self-defense. Section 941.20(1)(b) sets forth a limited
restriction that imposes a slight burden on the core right of
the Second Amendment. See Weber, 2020 WL 7635472, at ¶30
(concluding that the burden on Second Amendment rights by an
intoxicated use of a firearm statute was "very slight"). Such a
slight burden counsels us to apply intermediate scrutiny to
Christen's challenge as well.11
¶52 Because Wis. Stat. § 941.20(1)(b) does not strike at
the core right of the Second Amendment, due to the jury's
determination that Christen did not act in self-defense, and any
We
11 note that numerous other courts have applied
intermediate scrutiny in challenges to regulations on firearms
far more restrictive than the restriction that Wis. Stat.
§ 941.20(1)(b) may impose. See, e.g., Roundtree, 395 Wis. 2d 94(applying intermediate scrutiny to a complete prohibition on
firearm possession by convicted felons); Stimmel v. Sessions,
879 F.3d 198, 206 (6th Cir. 2018) (applying intermediate
scrutiny to a complete prohibition on firearm possession by
individuals previously convicted of a misdemeanor crime of
domestic violence); Mai, 952 F.3d at 1115 (applying intermediate
scrutiny to a complete prohibition on firearm possession by
mentally ill individuals).
23
No. 2019AP1767-CR
burden it does impose on that core right is slight in this case,
we conclude that Christen's as-applied challenge to
§ 941.20(1)(b) requires the application of intermediate
scrutiny.12
b. Application of intermediate scrutiny
¶53 "Pursuant to an intermediate scrutiny analysis, we ask
whether a law is substantially related to an important
governmental objective." Roundtree, 395 Wis. 2d 94, ¶28.
¶54 "[W]e recognize public safety generally, and
preventing gun violence specifically, as important governmental
objectives. Indeed, '[p]ublic safety and the protection of
human life is a state interest of the highest order.'" Id., ¶43
(quoting State v. Miller, 196 Wis. 2d 238, 249, 538 N.W.2d 573(Ct. App. 1995)) (citations omitted). Even more relevant to
this case, the State has a legitimate interest "in protecting
people from harm from the combination of firearms and alcohol."
Weber, 2020 WL 7635472, at ¶32; see also People v. Wilder, 861
N.W.2d 645, 653 (Mich. Ct. App. 2014) ("The extreme danger posed
12 The determination that intermediate scrutiny is the
appropriate level of scrutiny is consistent with other courts
that have addressed a statute similar to Wis. Stat.
§ 941.20(1)(b). See, e.g., Weber, 2020 WL 7635472, at ¶31;
People v. Deroche, 829 N.W.2d 891, 897 (Mich. Ct. App. 2013).
Our conclusion does not, however, exclude the possibility that
another level of scrutiny could apply to a different statute or
under different facts. See Heller, 554 U.S. at 628 n.27
(leaving open the question of the appropriate level of
heightened scrutiny); United States v. Marzzarella, 614 F.3d 85,
96 (3d Cir. 2010) (noting that strict scrutiny may apply to a
Second Amendment challenge depending on the facts and
circumstances of the challenge).
24
No. 2019AP1767-CR
by a drunken person with a gun is real and cannot be over
emphasized.").
¶55 Christen argues that Wis. Stat. § 941.20(1)(b) is not
substantially related to these important governmental interests
because the statute criminalizes going armed while intoxicated
which does not impact public safety. Specifically, he asserts
that the statute "does not require the defendant [to] pull the
trigger, or cause injury of any sort, or even create a dangerous
situation for another." Beyond these general arguments,
Christen explains that he was not engaged in any unlawful or
uncommon behaviors. Rather, "he merely had a few drinks over
the course of an evening" and was defending himself, despite the
jury's conclusion that he did not act in self-defense. As such,
he claims that, based on the facts of his case, § 941.20(1)(b)
is not substantially related to the important governmental
objectives identified.
¶56 We disagree. Wisconsin Stat. § 941.20(1)(b) is
substantially related to the important interest of "protecting
people from harm from the combination of firearms and alcohol."
Weber, 2020 WL 7635472, at ¶32.
¶57 The statute criminalizes operating or going armed with
a firearm only while the individual is "under the influence of
an intoxicant." Wis. Stat. § 941.20(1)(b). The phrase "under
the influence of an intoxicant" is satisfied only when "the
defendant's ability to handle a firearm was materially impaired
because of consumption of an alcoholic beverage." Wis. JI——
Criminal 1321, at 1 (2019). As the Ohio Supreme Court aptly
25
No. 2019AP1767-CR
explained, "[w]hen an intoxicated person carries or uses a gun,
either at home or outside the home, the impairment of cognitive
functions and motor skills can result in harm to anyone around
the intoxicated person and even to the intoxicated person
himself or herself." Weber, 2020 WL 7635472, at ¶33. Even in
the event that the firearm is unloaded, there is still a danger
that the individual will harm the public. See id., at ¶¶43-44
(explaining the danger that an unloaded firearm may cause in the
hands of an intoxicated individual). Accordingly,
§ 941.20(1)(b) furthers the important governmental interest of
protecting the public.
¶58 The State points to cases from foreign jurisdictions
to support its argument that Wis. Stat. § 941.20(1)(b) is
substantially related to public safety. Of those cases, we find
State v. Weber from Ohio the most persuasive.13 As the Ohio
Supreme Court recognized, "[r]esearch shows that 'people who
abuse alcohol or illicit drugs are at an increased risk of
committing acts of violence.'" Id., ¶36 (quoting Webster &
Vernick, Keeping Firearms from Drug and Alcohol Abusers, 15
Although the State cites to the Court of Appeals of
13
Ohio's decision in Weber, the Ohio Supreme Court subsequently
reviewed the Court of Appeals of Ohio's decision. Weber, 2020
WL 7635472, at ¶1. The Ohio Supreme Court's decision was
announced after briefing was completed in this case. As such,
we look to the analysis and reasoning of the Ohio Supreme Court
because the data in that case are general and assist our inquiry
in this case. Cf. Roundtree, 395 Wis. 2d 94, ¶50 (citing
studies from Kanter v. Barr, 919 F.3d 437, 449 (7th Cir. 2019),
to support its conclusion that the statute at issue was
substantially related to an important governmental interest).
26
No. 2019AP1767-CR
Injury Prevention 425 (2009)).14 Beyond even a general risk of
violence, "[s]tudies show that there is a strong correlation
between heavy drinking and self-inflicted injury, including
suicide, from a firearm." Id. (citing Branas, Han & Wiebe,
Alcohol Use and Firearm Violence, 38 Epidemiologic Reviews 32,
36 (2016)). Horrifically, "[f]or men, deaths from alcohol-
related firearm violence equal those from alcohol-related motor
vehicle crashes." Id. (quoting Garen Wintemute, Alcohol Misuse,
Firearm Violence Perpetration, and Public Policy in the United
States, 79 Preventive Medicine 15 (2015)). These data support a
substantial relationship between intoxicated use of firearms and
public safety, preventing gun violence, and the protection of
human life.
¶59 Our case law provides examples of the dangerous
combination of alcohol and firearms. See, e.g., Larson v.
14 The Ohio Supreme Court expounded on this statement:
The victims of such violence are often a gun owner's
family members or the gun owner himself. For example,
"[d]rug and alcohol use by domestic abusers has been
strongly linked with the perpetration of fatal and
non-fatal domestic violence." [Webster & Vernick,
Keeping Firearms from Drug and Alcohol Abusers, 15
Injury Prevention 425 (2009).] "[A]n overwhelming
proportion (70%) of [intimate-partner] homicide
perpetrators were under the influence of substances
when the crime occurred, . . . and the use of alcohol
is a strong predictor of intimate terrorism of women."
Darryl W. Roberts, Intimate Partner Homicide:
Relationships to Alcohol and Firearms, 25
J.Contemp.Crim.Just. 67, 70 (2009).
Weber, 2020 WL 7635472, at ¶36.
27
No. 2019AP1767-CR
State, 86 Wis. 2d 187, 271 N.W.2d 647 (1978) (addressing a case
of homicide while intoxicated); Jones v. State, 70 Wis. 2d 41,
233 N.W.2d 430 (1975) (same); State v. Witkowski, 143
Wis. 2d 216, 420 N.W.2d 420 (Ct. App. 1988) (addressing a case
of armed robbery while the defendant "appeared to be
intoxicated").
¶60 Therefore, the State has important governmental
interests in public safety, preventing gun violence, protecting
human life, and protecting people from the harm the combination
of firearms and alcohol causes. The means the legislature chose
to further these important objectives, Wis. Stat.
§ 941.20(1)(b), is substantially related to the important
governmental objectives. Indeed, "[i]t is difficult to
understand how the government could have attempted to further
that interest in any other viable manner." Weber, 2002 WL
7635472, at ¶39.
¶61 The specific facts of Christen's case do not cast
doubt upon this conclusion. As we discussed above, the jury
rejected Christen's claim that he was acting in self-defense.
Christen does not supply or allege any other facts that would
call into question the constitutionality of the statute as
applied to him. The specific facts of Christen's case
demonstrate why Wis. Stat. § 941.20(1)(b) is substantially
related to public safety and preventing gun violence. The jury
found that Christen was so intoxicated that he was "less able to
exercise the clear judgment and steady hand necessary to handle
a firearm." See Wis. JI——Criminal 1321, at 2 (2019). Christen
28
No. 2019AP1767-CR
threatened his roommates and their guests numerous times. As he
stated on the 911 call, "[i]f someone comes through [his] door,
they're getting a fucking face full of lead." The studies and
data noted above demonstrate that there was a real risk that the
combination of Christen's intoxication and his firearms would
cause harm to those around him. Thus, the facts of this case
demonstrate why § 941.20(1)(b) is substantially related to
public safety, preventing gun violence, protecting human life,
and protecting people from the harm the combination of firearms
and alcohol causes.
¶62 Accordingly, we conclude that Christen's as-applied
challenge to Wis. Stat. § 941.20(1)(b) fails.
IV. CONCLUSION
¶63 As to Christen's as-applied challenge, we conclude
Wis. Stat. § 941.20(1)(b) does not strike at the core right of
the Second Amendment because he did not act in self-defense.
Moreover, we conclude that § 941.20(1)(b) does not severely
burden his Second Amendment right. Accordingly, we apply
intermediate scrutiny to Christen's as-applied challenge.
Because § 941.20(1)(b) is substantially related to the important
government objective of protecting public safety, it survives
intermediate scrutiny as applied to Christen.
¶64 Accordingly, we conclude that Christen's as-applied
challenge to Wis. Stat. § 941.20(1)(b) fails. Therefore, we
affirm.
29
No. 2019AP1767-CR
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2019AP1767-CR.bh
¶65 BRIAN HAGEDORN, J. (concurring). The Second
Amendment to the United States Constitution protects the
individual right to keep and bear arms. This right is broad,
but it does not always prohibit the state from taking focused,
prophylactic measures to protect against gun-related violence.
Earlier this term, I concluded in dissent that the state did not
meet its burden to prove a substantial relationship between
dispossessing a felon convicted of failing to pay child support
for 180 days and preventing gun-related violence. See State v.
Roundtree, 2021 WI 1, ¶¶105-71, 395 Wis. 2d 94, 952 N.W.2d 765(Hagedorn, J., dissenting). This case provides another
opportunity for this court to explore the contours of the rights
protected by the Second Amendment. The court concludes——and I
agree——that Mitchell Christen's conviction for operating or
going armed with a firearm while intoxicated does not violate
the Second Amendment. However, in my view, the majority's
analysis is insufficiently rooted in the original public meaning
of the Second Amendment. Therefore, I reach the same underlying
conclusion, but rest instead on the history of the Second
Amendment right as understood when adopted and incorporated
against the states.
I. BACKGROUND
¶66 Christen's conviction stems from events that took
place during the early-morning hours of February 3, 2018, in a
Madison apartment he shared with two roommates. Christen
estimated that, over the course of the evening, he consumed four
1
No. 2019AP1767-CR.bh
beers and one shot. After returning to his apartment, Christen
argued with one of his roommates and one of his roommate's
friends. At one point, Christen, who was in his bedroom, picked
up a gun and "held it sideways towards the wall away from" his
roommate's friend, prompting the friend to shut Christen's
bedroom door.
¶67 After that exchange, Christen began recording a video
with his cell phone. He announced that he was going to the
kitchen and bringing a gun with him because he did not "trust
anybody in this house." Christen emerged from his bedroom with
a handgun tucked into his waistband and went to the kitchen.
The friend Christen previously threatened disarmed him and
another friend disassembled the gun. Christen retreated to his
bedroom, where he retrieved a shotgun and cocked it. From his
bedroom, Christen dialed 911 to report a stolen firearm; police
responded, and Christen was arrested. The responding officer
noted that Christen bore several indicators of intoxication.
¶68 Christen was charged with pointing a firearm at
another, operating or going armed with a firearm while
intoxicated, and disorderly conduct. Christen moved the circuit
court1 to dismiss the second charge, arguing that a conviction
under Wis. Stat. § 941.20(1)(b) (2017-18)2 would violate his
right to bear arms within his home. The circuit court denied
1The Honorable Nicholas J. McNamara of the Dane County
Circuit Court presided.
2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
2
No. 2019AP1767-CR.bh
that motion, and a jury convicted him of disorderly conduct and
operating or going armed with a firearm while intoxicated under
§ 941.20(1)(b). Christen appealed the circuit court's denial of
his motion to dismiss, which the court of appeals affirmed.
State v. Christen, No. 2019AP1767-CR, unpublished slip op. (Wis.
Ct. App. Mar. 17, 2020). This court granted Christen's petition
for review.
II. DISCUSSION
¶69 Wisconsin Stat. § 941.20(1)(b) provides that a person
who "[o]perates or goes armed with a firearm while he or she is
under the influence of an intoxicant" is guilty of a Class A
misdemeanor. Put simply, § 941.20(1)(b) criminalizes armed
intoxication. Christen challenges the constitutionality of this
provision as applied to him. Therefore, we look to the specific
facts of his case, not to hypothetical or different facts. See
State v. Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665
N.W.2d 785. When analyzing an as-applied challenge, it
generally does not matter whether the statute might have some
applications that are contrary to the Constitution if the
defendant's own conviction lacks a constitutional defect. See
State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63.
An as-applied challenge therefore attacks the application of the
statute——a conviction in this case——rather than the statute
itself. See Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67,
¶37, 393 Wis. 2d 38, 946 N.W.2d 35.
3
No. 2019AP1767-CR.bh
¶70 In my dissenting opinion in Roundtree, 395 Wis. 2d 94,
¶¶105-71 (Hagedorn, J., dissenting), I explained that the
original public meaning of the Second Amendment should guide the
constitutional analysis, and why the historical record is of
particular import to this inquiry. I begin with a brief summary
of these principles, then review the historical record, and
finally, apply this to the facts of Christen's case.
A. Principles of Interpretation
¶71 Under our Constitution, the people declared that the
government has no power to regulate in certain areas, and
therefore it may not criminalize conduct in those areas. See
Cohen v. California, 403 U.S. 15, 18-19 (1971); Roundtree, 395
Wis. 2d 94, ¶109 (Hagedorn, J., dissenting). Many of these
limits are found in the federal Constitution's Bill of Rights——
among them, the Second Amendment's protection of the right "to
keep and bear Arms." U.S. Const. amend. II; McDonald v. City of
Chicago, 561 U.S. 742, 791 (2010).
¶72 The primary interpretive tool in constitutional
analysis is the constitutional text, informed by its context and
structure. District of Columbia v. Heller, 554 U.S. 570, 576-77
(2008); Vos, 393 Wis. 2d 38, ¶28. The Second Amendment says, "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. The text's reference
to "the right of the people" recognizes that the Second
Amendment "codified a pre-existing right" to keep and bear arms,
4
No. 2019AP1767-CR.bh
one already held by the people when the Second Amendment was
adopted. Heller, 554 U.S. at 592. The Second Amendment
therefore referenced a right with a preexisting scope and
substance, and gave it protection in our fundamental law. Id.¶73 The scope and substance of a constitutional right
articulated in the text may be informed by the historical
record. Vos, 393 Wis. 2d 38, ¶28 n.10. In the Second Amendment
context, it is not immediately apparent, more than two centuries
removed from its enactment, precisely what fell within the full
reach of "the right of the people to keep and bear Arms," nor
whether and when the government may enact laws touching upon
firearm possession, carrying, and use. Young v.
State, F.3d , 2021 WL 1114180, at *13 (9th Cir. 2021) (en
banc); Roundtree, 395 Wis. 2d 94, ¶122 (Hagedorn, J.,
dissenting). Nevertheless, by looking to the historical record,
"we can discern the principal themes" that inform what the
public understood the provision to mean when it was adopted.
Young, F.3d , at *13; Roundtree, 395 Wis. 2d 94, ¶114
(Hagedorn, J., dissenting). "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." Roundtree,
395 Wis. 2d 94, ¶114 (Hagedorn, J., dissenting). Therefore, our
task in this case is to study the historical record to learn
whether the right protected by the Second Amendment protects
armed intoxication.
5
No. 2019AP1767-CR.bh
B. Armed Intoxication
¶74 The Second Amendment protects the longstanding,
natural right to self-defense, but even as originally
understood, this core right was not unlimited in scope; some
regulation was permitted. Heller, 554 U.S. at 595; Roundtree,
395 Wis. 2d 94, ¶¶125, 129 (Hagedorn, J., dissenting). When the
Second Amendment was adopted, and later incorporated against the
states,3 laws restricting the right to keep and bear arms were
rare, but did exist. See McDonald, 561 U.S. at 770-77. "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." Roundtree, 395 Wis. 2d 94, ¶129 (Hagedorn, J.,
dissenting).
¶75 It appears that no jurisdiction had a law
criminalizing armed intoxication on its books when the Second
Amendment was adopted in 1791. See State v.
Weber, N.E.3d , ¶85, 2020 WL 7635472 (Ohio 2020) (DeWine,
J., concurring) ("It seems clear that laws identical to R.C.
3"Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them." District
of Columbia v. Heller, 554 U.S. 570, 634-35 (2008). The Second
Amendment was ratified in 1791, but when analyzing the Second
Amendment's meaning as incorporated against the states under the
Fourteenth Amendment, "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 v. City of
Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (citing McDonald v.
City of Chicago, 561 U.S. 742, 770-77 (2010)). Therefore, our
study of the Second Amendment's historical record includes both
the Founding and Reconstruction Eras.
6
No. 2019AP1767-CR.bh
2923.15 [criminalizing armed intoxication] did not exist at the
time of the founding."). However, the historical record
suggests states could permissibly curtail the reckless handling
of firearms and recognized the aggravating nature of
intoxication, particularly when paired with weapons.
¶76 One set of laws along these lines prohibited firing a
gun under circumstances where doing so would be reckless. A
1655 Virginia law required anyone who fired a gun while
intoxicated to forfeit 100 pounds of tobacco.4 A New York law
from the same era prohibited firing guns on New Year's and May
Days, recognizing the "deplorable accidents such as wounding"
caused by the drunken handling of weapons on those days.5 A 1774
Pennsylvania law similarly prohibited firing a gun without
reason around New Year's.6 And a 1785 New York law did the same
for "the eve of the last day of December, and the first and
second days of January."7
¶77 In addition, stretching back to 1840, states have in
various ways forbidden the reckless brandishing of a weapon when
4 Act of March 10, 1655, 1655 Va. Laws 401-02.
Ordinance of The Director General and Council of New
5
Netherland to Prevent Firing Of Guns, Planting May Poles and
Other Irregularities Within This Province, 1665 N.Y. Laws 205.
An Act to Suppress the Disorderly Practice of Firing Guns,
6
etc., on the Times Therein Mentioned, 1759-1776 Pa. Acts 421,
§ 1.
An Act to Prevent the Firing of Guns and other Fire Arms
7
within this State on Certain Days Therein Mentioned, 1784-1785
N.Y. Laws 152.
7
No. 2019AP1767-CR.bh
not necessary for self-defense. An 1840 Mississippi law
provided:
If any person having or carrying any dirk, dirk knife,
Bowie knife, sword, sword cane, or other deadly
weapon, shall, in the presence of three or more
persons, exhibit the same in a rude, angry and
threatening manner, not in necessary self-defense, or
shall in any manner unlawfully use the same in any
fight or quarrel, the person or persons so offending,
upon conviction thereof in the circuit or criminal
court of the proper county, shall be fined in a sum
not exceeding five hundred dollars, and be imprisoned
not exceeding three months.[8]
An 1854 Washington law followed suit, making it a crime to "in a
rude, angry, or threatening manner, in a crowd of two or more
persons, exhibit any pistol, bowie knife, or other dangerous
weapon."9 And an 1855 California law similarly made it illegal
to "draw or exhibit any of said deadly weapons in a rude, angry
and threatening manner, not in necessary self-defense . . . in
any fight or quarrel."10 During the 1860s and 70s, several more
states adopted similar laws criminalizing brandishing a weapon
when not necessary for self-defense, including: Idaho in 1864,
8Volney Erskine Howard, The Statutes of the State of
Mississippi of a Public and General Nature, with the
Constitutions of the United States and of this State: And an
Appendix Containing Acts of Congress Affecting Land Titles,
Naturalization, and a Manual for Clerks, Sheriffs and Justices
of the Peace 676 (1840).
9An Act Relative to Crimes and Punishments, and Proceedings
in Criminal Cases, 1854 Wash. Sess. Law 80, ch. 2, § 30.
William H.R. Wood, Digest of the Laws of California:
10
Containing All Laws of a General Character Which were in Force
on the First Day of January, 1858 334 (1861).
8
No. 2019AP1767-CR.bh
Texas in 1866, Arizona in 1867, Arkansas in 1868, Nevada in
1873, and Indiana in 1875.11
¶78 It is also clear that founding-era governments had
broad power to regulate intoxication, even when doing so might
impinge on certain fundamental rights. One early Ohio
territorial statute provided that if "any person by being
intoxicated, shall be found making or exciting any noise,
contention or disturbance, at any tavern, court, election, or
other meeting" that person could be fined or imprisoned until
"such court, election or meeting is over."12 Another law, an
1811 Maryland statute, forbade selling "spirituous or fermented
liquors" on election days. Cearfoss v. State, 42 Md. 403, 406
(1875). "Simply because the right to vote and the right to
assemble were considered fundamental rights did not mean that
11An Act Concerning Crimes and Punishments, 1864 Id. Sess.
Laws 304, § 40; George Washington Paschal, 2 A Digest of the
Laws of Texas: Containing Laws in Force, and the Repealed Laws
on Which Rights Rest 1321 (1873); An Act to Prevent the Improper
Use of Deadly Weapons and the Indiscriminate Use of Fire Arms in
the Towns and Villages of the Territory, 1867 Ariz. Sess. Laws
21-22, § 1; 1868 Ark. Acts 218, §§ 12-13; An Act to Amend an Act
Entitled "An Act Concerning Crimes and Punishments," 1873 Nev.
Stat. 118, ch. 62, § 1; An Act Defining Certain Misdemeanors,
and Prescribing Penalties Therefore, 1875 Ind. Acts 62, § 1.
These and other relevant laws can be accessed via the
Repository of Historical Gun Laws at the Duke Center for
Firearms Law. https://firearmslaw.duke.edu/repository/search-
the-repository/.
12Salmon P. Chase, Statutes of Ohio and of the Northwestern
Territory, Adopted or Enacted from 1788 to 1833 Inclusive:
Together with the Ordinance of 1787; the Constitutions of Ohio
and of the United States, and Various Public Instruments and
Acts of Congress 503 (1833).
9
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the government could not restrain someone from exercising those
rights while they were intoxicated." Weber, N.E.3d ,
¶107 (DeWine, J., concurring). So too, it seems, with the
fundamental right protected under the Second Amendment.
¶79 The Reconstruction Era presents the most direct
evidence that laws prohibiting armed intoxication are
permissible under the Second Amendment. In 1868, the same year
the Fourteenth Amendment was ratified, Kansas adopted the
following law:
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.[13]
This law prohibits carrying a firearm while "under the influence
of intoxicating drink"——precisely the conduct criminalized under
Wis. Stat. § 941.20(1)(b). The temporal connection between this
prohibition on armed intoxication and the Fourteenth Amendment's
ratification is strong evidence that the Second Amendment,
particularly as incorporated against the states, was not
originally understood to preclude states from criminalizing
armed intoxication.
¶80 An 1878 Mississippi law is also insightful:
2 General Statutes of the State of Kansas 353 (1897)
13
(emphasis added).
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It shall not be lawful for any person to sell to any
minor or person intoxicated, knowing him to be a minor
or in a state of intoxication, any weapon of the kind
or description in the first section of this Act
described [which included pistols], or any pistol
cartridge, on any conviction shall be punished by a
fine not exceeding two hundred dollars, and if the
fine and costs are not paid, be condemned to hard
labor under the direction of the board of supervisors
or of the court, not exceeding six months.[14]
This law attempted to limit the reckless handling of firearms by
forbidding the sale of firearms to minors or intoxicated
individuals. If states could criminalize selling arms to
intoxicated individuals, the same rationale would support the
conclusion that states could also temporarily prohibit
intoxicated individuals from handling guns.
¶81 Viewing this evidence as a whole, the right to keep
and bear arms has never prevented governments from enacting
reasonable regulations to curtail the reckless handling of
firearms, such as prohibitions on firing in a crowded area or
brandishing a firearm in ways dangerous to others and not in
self-defense. And the unique danger of intoxication when
combined with potentially deadly force has long been
acknowledged. Moreover, the founding-era historical record
suggests, and the reconstruction-era evidence confirms, that one
way the government could curtail the reckless handling of
firearms was by criminalizing armed intoxication. Therefore, at
least as a general matter, laws forbidding armed intoxication do
not violate the Second Amendment right to keep and bear arms.
An Act to Prevent the Carrying of Concealed Weapons and
14
for Other Purposes, 1878 Miss. Laws 175, § 2.
11
No. 2019AP1767-CR.bh
¶82 In view of this historical evidence, we need not
employ an additional implementing doctrine such as intermediate
or strict scrutiny to conclude that the Wis. Stat.
§ 941.20(1)(b) is not contrary to the Second Amendment's
original public meaning in this context. This type of law fits
comfortably within the historical record, and therefore no
additional layer of legal analysis is necessary.15
C. Application
¶83 With this backdrop, resolution of the case before us
is straightforward. The Second Amendment, while protecting the
right to carry a firearm generally, does not protect armed
intoxication——at least not under the facts of this case.
¶84 A more nuanced analysis may be required if Christen
was truly acting in self-defense. This is so because whatever
else the Second Amendment means, it "surely elevates above all
other interests the right of law-abiding, responsible citizens
to use arms in defense of hearth and home." Heller, 554 U.S. at
15 The majority concludes intermediate scrutiny governs this
constitutional inquiry, but it conspicuously declines to examine
whether the Second Amendment's original understanding supports
application of that framework in this context. See majority
op., ¶¶38-39, 52. As the Ninth Circuit unanimously agreed, this
approach runs contrary to Heller's explicit direction that the
Second Amendment be interpreted in light of its historical
record. Young v. State, F.3d , 2021 WL 1114180, at *12
(9th Cir. 2021) (en banc) ("We do not think we can avoid the
historical record. Heller relied heavily on history, and we do
not think that it exhausted all subsequent need to confront our
history in resolving challenges to other firearm regulations.");
id. at *50-62 (O'Scannlain, J., dissenting) (following "Heller's
historical imperative" to analyze the Second Amendment's
historical record).
12
No. 2019AP1767-CR.bh
635. Christen invokes self-defense, but the facts simply do not
support it. None of the four people in the apartment when
Christen took up arms threatened to physically harm him. It
seems that it is Christen who was the source of most of the
discord that occurred that evening. Moreover, the jury rejected
the statutory self-defense argument proffered by Christen.16 In
short, Christen's right to defend himself was not implicated.
Under these facts, the Second Amendment does not protect
Christen's right to take up arms notwithstanding his
intoxication.
¶85 Therefore, Christen's conviction under Wis. Stat.
§ 941.20(1)(b) is consistent with the Second Amendment and his
as-applied challenge fails. For these reasons, I respectfully
concur.
The jury was instructed on the statutory privilege of
16
self-defense and returned a guilty verdict. This means the jury
did not believe Christen satisfied the statutory prerequisites
for self-defense codified in Wis. Stat. § 939.48. As the
dissent points out, the Second Amendment right to self-defense
is more expansive than the statutory privilege. Even so, the
facts of this case do not lead us to those waters.
13
No. 2019AP1767-CR.rgb
¶86 REBECCA GRASSL BRADLEY, J. (dissenting). The
majority persists in ignoring the text and history of the Second
Amendment, flouting controlling United States Supreme Court
precedent——District of Columbia v. Heller, 554 U.S. 570 (2008)——
by doing exactly what Heller renounced. Although Heller
"expressly rejected the argument that the scope of the Second
Amendment right should be determined by judicial interest
balancing," McDonald v. City of Chicago, Ill., 561 U.S. 742, 785
(2010) (citing Heller, 554 U.S. at 633-35), the majority
nevertheless concludes that "important governmental interests"
override one of America's most cherished rights.
"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." Heller, 554 U.S. at 634-35.
¶87 The majority also misapprehends the difference between
operating a firearm in self-defense and going armed in case of
confrontation. The fact that Christen did not act in self-
defense has nothing to do with his Second Amendment right to go
armed in case of confrontation. While many readers may not be
troubled by the outcome of this case in light of Christen's
threatening behavior toward his roommates and their guests, the
majority's decision erodes a fundamental freedom, the "true
palladium of liberty" for all Americans. St. George Tucker,
Blackstone's Commentaries 143 (1803).
¶88 Examining "both text and history" of the Second
Amendment is necessary to understand the original public meaning
1
No. 2019AP1767-CR.rgb
of the "individual right to keep and bear arms." Heller, 554
U.S. at 595. The majority neglects to review either.
Textually, the individual right to keep and bear arms
"guarantee[s] the individual right to possess and carry weapons
in case of confrontation." Id. at 592. Historically,
legislatures did not limit the ability of individuals to carry
firearms while under the influence of an intoxicant. Because
"'the need for defense of self, family, and property is most
acute' in the home[,]" McDonald, 561 U.S. at 767 (quoting
Heller, 554 U.S. at 628), a law prohibiting individuals from
going armed while intoxicated cannot constitutionally be applied
to an individual who goes armed in his own home. Wisconsin
Stat. § 941.20(1)(b) violated Christen's right to carry a
firearm in his own home in case of confrontation,
notwithstanding his intoxication. I respectfully dissent.
I. The Majority Applies an Incorrect Analytical
Framework.
A. Heller's Holding and Analytical Framework
¶89 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. Over a decade ago, the United States
Supreme Court issued a decision in a "landmark case on the
meaning of the Second Amendment," "writ[ing] on a slate that was
almost clean" considering the dearth of Second Amendment
jurisprudence from our nation's highest court. Lawrence B.
Solum, District of Columbia v. Heller and Originalism, 103 Nw.
2
No. 2019AP1767-CR.rgb
U. L. Rev. 923, 925, 980 (2009). In Heller, the Court held, "on
the basis of both text and history, that the Second Amendment
conferred an individual right to keep and bear arms"——a right
which "belongs to all Americans." Heller, 554 U.S. at 581, 595.
In doing so, the Court "dispelled the prevalent, but
historically ignorant notion that the Second Amendment protects
merely a collective, militia member's right." State v.
Roundtree, 2021 WI 1, ¶65, 395 Wis. 2d 94, 952 N.W.2d 765(Rebecca Grassl Bradley, J., dissenting). Although the Court
wrote that the Second Amendment "conferred" the right, the Court
clarified that "[t]he very text of the Second Amendment
implicitly recognizes the pre-existence of the right and
declares only that it 'shall not be infringed.'" Heller, 594
U.S. at 592 (emphasis added). Like other rights protected by
the Constitution, the right to keep and bear arms "is not a
right granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence." Id. (quoted
source omitted). Instead, the Framers "codified a pre-existing
right"——one that "elevates above all other interests the right
of law-abiding, responsible citizens to use arms in defense of
hearth and home." Id. at 635.
¶90 But Heller did more than just confirm that the right
to keep and bear arms is retained individually. It also set
forth the proper analytical framework for courts to consider
Second Amendment inquiries. In particular, the Heller Court
arrived at its seminal holding by substantively analyzing the
"text and history" of the Second Amendment's "operative clause":
3
No. 2019AP1767-CR.rgb
"the right of the people to keep and bears Arms."1 Id. at 595
(emphasis added).
¶91 The Court determined that the phrase "the people"——as
used in the First Amendment, the Second Amendment, the Fourth
Amendment, and elsewhere in the Constitution——"unambiguously
refers to all members of the political community, not an
unspecified subset." Id. at 580. After ascertaining the holder
of the right——"the people"——the Court turned to its substance.
The phrase "to keep [arms]" most reasonably means to "to have
weapons" and the phrase "to bear arms" means "to carry arms."
Id. at 581-84. "The 18th-century meaning [of these phrases] is
no different from the meaning today." Id. at 581. Drawing upon
a wealth of 18th century dictionaries and authorities (e.g.,
William Blackstone's Commentaries on the Laws of England), the
Court declared these clauses "guarantee the individual right to
possess and carry weapons in case of confrontation"——a
conclusion "strongly confirmed by the historical background of
the Second Amendment." Id. at 592 (emphasis added).
¶92 The Court then explored how the scope of the Second
Amendment was understood during the founding era. The Court
first examined constitutions of four states——Pennsylvania,
Vermont, North Carolina, and Massachusetts——that predated the
federal Constitution. Each state adopted language analogous to
1 Drawing upon founding-era sources, the Court also analyzed
the Second Amendment's "prefatory clause," which provides: "A
well regulated Militia, being necessary to the security of a
free State." District of Columbia v. Heller, 554 U.S. 570, 595-
98 (2008).
4
No. 2019AP1767-CR.rgb
the Second Amendment regarding the right to bear arms.
According to the Court, "the most likely reading of all four of
these pre-Second Amendment state constitutional provisions is
that they secured an individual right to bear arms for defensive
purposes." Id. at 602. Post-ratification commentary supports
this conclusion. Similar to William Blackstone, St. George
Tucker understood the right to bear arms as "the palladium of
liberty." Id. at 606 (citing 2 St. George Tucker, Blackstone's
Commentaries 143 (1803)). Tucker declared "[t]he right to self
defence is the first law of nature: in most governments it has
been the study of rulers to confine the 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." Id.(citing Tucker, infra, at 300). Other prominent scholars during
the founding era——from William Rawle to Joseph Story to
preeminent abolitionists——understood the Second Amendment in a
similar light. Id. at 606-10. With only a single exception,
all post-ratification commentators construed the Second
Amendment "to protect an individual right unconnected with
militia services," particularly in regard to confrontation and
self-defense. Id. at 605-10.2
The Court also extensively examined pre-civil war cases,
2
post-civil war legislation, and post-civil war commentary to
document the historical foundation for the Second Amendment.
Heller, 554 U.S. at 610-19.
5
No. 2019AP1767-CR.rgb
¶93 The Court then applied its textual interpretation and
historical study to the particular restriction before the Court:
the District of Columbia's ban on firearms, which the Court
concluded was unconstitutional. Specifically, the Court
determined that "the District's ban on handgun possession in the
home violates the Second Amendment, as does its prohibition
against rendering any lawful firearm in the home operable for
the purpose of immediate self-defense." Id. at 635. "Assuming
that Heller is not disqualified from the exercise of Second
Amendment rights," concluded the Court, "the District must
permit him to register his handgun and issue him a license to
carry it in the home." Id.¶94 The Heller Court was exhaustive in its historical
research into the meaning of the Second Amendment. In
considering the District of Columbia's firearm ban, at no point
did the Court weigh the interests of the government against the
Constitution's clear language, nor did it undertake the
judicially-invented intermediate or strict scrutiny analysis
preferred by many lower courts. Instead, it examined the text
and history of the Second Amendment, asking whether the statute
violated the original public meaning of the right to keep and
bear arms. In doing so, the Court prescribed the proper method
of interpretation for resolving challenges under the Second
Amendment.
¶95 In employing this framework, the Heller Court
decidedly rejected the sort of interest-balancing tests the
majority applies in this case. As the Court explained, the
6
No. 2019AP1767-CR.rgb
Second Amendment is "the very product of an interest balancing
by the people." Id. at 635 (emphasis added). Just two years
later, the Court reiterated this point, noting that Heller
"expressly rejected the argument that the scope of the Second
Amendment right should be determined by judicial interest
balancing[.]" McDonald, 561 U.S. at 785 (citing Heller, 554
U.S. at 633-35). "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 guarantee
subject to future judges' assessments of its usefulness is no
constitutional guarantee at all." Heller, 554 U.S. at 634.
¶96 Heller unequivocally superseded judicial balancing
tests with an analysis of whether the original public meaning of
the Second Amendment text, in the context of the history and
tradition enveloping the right, would support the regulation or
restriction challenged in a particular case. As then-Judge
Brett Kavanaugh confirmed, "Heller and McDonald leave little
doubt that courts are to assess gun bans and regulations based
on text, history, and tradition, not by a balancing test such as
strict or intermediate scrutiny." Heller v. District of
Columbia, 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J.,
dissenting). And for good reason: "the Heller test [is] more
determinate and 'much less subjective' because 'it depends upon
a body of evidence susceptible of reasoned analysis rather than
a variety of vague ethico-political First Principles whose
combined conclusion can be found to point in any direction the
7
No. 2019AP1767-CR.rgb
judges favor.'" Id. at 1275 (Kavanaugh, J., dissenting)
(quoting McDonald, 561 U.S. at 804 (Scalia, J., concurring)).
¶97 While conducting this "historical analysis can be
difficult," "it is the best means available in an imperfect
world" and avoids "intrud[ing] . . . upon the democratic
process." McDonald, 561 U.S. at 804 (Scalia, J., concurring)
(emphasis in original). The Court "based [Heller] on the scope
of the right to keep and bear arms as it was understood at the
time of the adoption of the Second Amendment." New York State
Rifle & Pistol Ass'n, Inc. v. City of New York, New York, ___
U.S. ___, 140 S. Ct. 1525, 1540 (2020) (Alito, J., joined by
Thomas and Gorsuch, JJ., dissenting) (emphasis added). "Because
history provided no support for laws like the District [of
Columbia's]," the law at issue in Heller violated the individual
right protected by the Second Amendment. Id. (Alito, J., joined
by Thomas and Gorsuch, JJ., dissenting) (emphasis added).
B. The Majority Eschews Heller's Framework.
¶98 Troublingly, although the United States Supreme Court
has established a Second Amendment analytical framework rooted
in text, history, and tradition, "many courts have resisted [the
Court's] decisions in Heller and McDonald." Rogers v. Grewal,
___ U.S. ___, 140 S. Ct. 1865, 1866 (2020) (denying petition for
writ of certiorari) (Thomas, J., dissenting). "Instead of
following the guidance provided in Heller, these courts
minimized that decision's framework. They then 'filled' the
self-created 'analytical vacuum' with a 'two-step inquiry' that
incorporates tiers of scrutiny on a sliding scale." Id.8
No. 2019AP1767-CR.rgb
(Thomas, J., dissenting) (internal quotations and citations
omitted). "Under this test, courts first ask 'whether the
challenged law burdens conduct protected by the Second
Amendment. If so, courts proceed to the second step——
determining the appropriate level of scrutiny," applying either
intermediate or strict scrutiny. Id. at 1867 (Thomas, J.,
dissenting).
¶99 This is precisely the two-step process the majority of
this court erroneously follows in the case before us. See
majority op., ¶34. This "two-step inquiry" leads the majority
to conclude that Wis. Stat. § 941.20(1)(b)——Wisconsin's law
prohibiting individuals from going armed while intoxicated——may
be constitutionally applied to Christen in his own home. Using
this "entirely made up" judicial balancing test contravenes
Heller and McDonald. Rogers, 140 S. Ct. at 1867 (Thomas, J.,
dissenting).
¶100 "The critical tool of constitutional interpretation in
this area is examination of a variety of legal and other sources
to determine the public understanding of a legal text in the
period after its enactment or ratification." Binderup v. Att'y
Gen. United States of Am., 836 F.3d 336, 362 (3d Cir. 2016)
(Hardiman, J., concurring) (emphasis in original) (internal
quotations omitted). The two-step test applied by the majority
in this case never takes up the "critical tools" of Heller's
originalist and textualist approach, favoring Justice Stephen
Breyer's outcome-oriented dissent in Heller instead. Rather
than ascertaining the original public meaning of the Second
9
No. 2019AP1767-CR.rgb
Amendment, Justice Breyer advocated "simply adopt[ing] . . . an
interest-balancing inquiry explicitly," which would ask "whether
[a] statute burdens a protected interest in a way or to an
extent that is out of proportion to the statute's salutary
effects upon other important governmental interests." Heller,
554 U.S. at 689-90 (Breyer, J., dissenting). The fact that both
federal and state courts, including our own, have embraced
Heller's dissent does not make it lawful. See, e.g., Kanter v.
Barr, 919 F.3d 437 (7th Cir. 2019); State v. Weber, 2020-Ohio-
6832, ___ N.E.3d ___. Not only does the two-step test run afoul
of the law pronounced by the United States Supreme Court, it is
antithetical to our duty to protect the people's rights as
"established by a constitutional history formed by democratic
decisions." McDonald, 561 U.S. at 805 (Scalia, J., concurring).
The people should be alarmed that their constitutionally-
guaranteed rights may be infringed whenever a majority of judges
on a reviewing court quite subjectively decides the "salutary
effects" of a regulation outweigh them, as the majority does in
this case.
10
No. 2019AP1767-CR.rgb
¶101 The majority's two-step approach is not only wrong,3
its application in this case is decidedly haphazard. The
majority conducts a meager review of the first step——that is,
whether Wis. Stat. § 941.20(1)(b) burdens conduct protected by
the Second Amendment. Confusingly, the majority concludes the
statute "does not strike at the core right of the Second
Amendment" but in the next sentence contradicts itself, saying
the statute "does not severely burden [that] right." Majority
op., ¶¶3, 63. Logically, if a right is not even implicated, it
cannot be burdened. Rather than engaging in what it
acknowledges should be "a textual and historical inquiry" the
majority instead skips to the second step, employing
intermediate scrutiny in order to elevate "important
governmental objectives" over a fundamental individual right.
See majority op., ¶¶36, 39, 60. It selects the wrong test and
then applies only part of it. The majority's decision to employ
means-end scrutiny——abandoning any meaningful inquiry into the
protections afforded to the people under the Second Amendment
because, in its mind, the historical record is "debatable"——
3The right to keep and bear arms is a "species of right we
denominate as fundamental." State v. Roundtree, 2021 WI 1, ¶72,
395 Wis. 2d 94, 952 N.W.2d 765 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Wisconsin Carry, Inc. v. City of Madison,
2017 WI 19, ¶9, 373 Wis. 2d 543, 892 N.W.2d 233). If a statute
restricts a fundamental right, this court applies strict
scrutiny review. Id., ¶73 (citing Mayo v. Wisconsin Injured
Patients & Families Comp. Fund, 2018 WI 78, ¶28, 383 Wis. 2d 1,
914 N.W.2d 678). Accordingly, if this court insists on applying
a judicial balancing test in reviewing a statute restricting the
right to keep and bear arms (notwithstanding Heller's contrary
direction), the intermediate scrutiny the majority applies in
Christen's case is in error.
11
No. 2019AP1767-CR.rgb
lends the majority a license to declare the meaning of the
Constitution's "list of protected rights" as "whatever [it]
wish[es] it to be." McDonald, 561 U.S. at 805 (Scalia, J.,
concurring). Under the majority's approach, Second Amendment
analysis becomes a "system in which . . . judges always get
their way": if the court's "balancing" weighs in favor of
stripping individuals of protected rights, then so it shall be.
Id. (Scalia, J., concurring). Ungrounded in text or history,
the majority's approach subjects a fundamental constitutional
right to the will, rather than the judgment, of the judiciary.
¶102 Using a balancing test in Second Amendment cases
facilitates judicial contortions utterly untethered to the
original meaning of the Constitution. The majority's reliance
upon social science research to buoy its means-end analysis
illuminates the problem. To support the State's proffered
"substantial interest" in prohibiting intoxicated individuals
from carrying firearms, the majority cites "studies show[ing]
that there is a strong correlation between heavy drinking and
self-inflicted injury" due to a firearm. See majority op., ¶58
(quoted source omitted). Because the results of social science
studies are unavoidably imbued with the biases of their authors
and their interpretation subject to society's evolving
sensitivities, courts should never "consult social science
research to interpret the Constitution." State v. Roberson,
2019 WI 102, ¶84, 389 Wis. 2d 190, 935 N.W.2d 813 (Rebecca
Grassl Bradley, J., concurring); see Missouri v. Jenkins, 515
U.S. 70, 119-20 (1995) (Thomas, J., concurring). "Only the
12
No. 2019AP1767-CR.rgb
Constitution can serve as a reliable bulwark of the rights and
liberty of the people." Roberson, 389 Wis. 2d 190, ¶86 (Rebecca
Grassl Bradley, J., concurring). In the majority's estimation,
if social science dictates that the State's interest in
regulating firearms is "substantial," then it may circumscribe
constitutional rights in conformance with the research of the
day.
¶103 Constitutional rights rest on perilously fragile
footing if they may be curtailed by subjective judicial
predilections. Only the text and history of the Second
Amendment should inform the analysis of whether Wis. Stat.
§ 941.20(1)(b)——Wisconsin's law prohibiting an intoxicated
individual from going armed with a firearm in his own home——may
be constitutionally applied to Christen. Text and history show
it may not.
II. Wisconsin Stat. § 941.20(1)(b) As Applied to Christen
¶104 In full, Wis. Stat. § 941.20(1)(b) reads:
(1) Whoever does any of the following is guilty of a
Class A misdemeanor:
. . .
(b) Operates or goes armed with a firearm while
he or she is under the influence of an
intoxicant.
(Emphasis added.) This statute criminalizes going armed with a
firearm while intoxicated, even within the confines of one's
home. The State charged Christen for going armed with a firearm
while intoxicated in violation of § 941.20(1)(b) and the jury
convicted him.
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¶105 Christen challenges the constitutionality of Wis.
Stat. § 941.20(1)(b) as applied to him. The record shows that
Christen did not operate a firearm while under the influence of
an intoxicant. Instead, Christen went armed with (carried) a
firearm while under the influence of an intoxicant. "[I]n an
as-applied challenge, we assess the merits of the challenge by
considering the facts of the particular case in front of us,
'not hypothetical facts in other situations.'" League of Women
Voters of Wisconsin Educ. Network, Inc. v. Walker, 2014 WI 97,
¶13, 357 Wis. 2d 360, 851 N.W.2d 302. Accordingly, the analysis
is limited to Christen's right to "go[] armed with a firearm"——
not his ability to "operate" one.
¶106 A review of the text and history of the Second
Amendment establishes that Wis. Stat. § 941.20(1)(b) is
unconstitutional as applied to Christen. The Second Amendment
does not countenance restricting Christen's fundamental right to
go armed in his own home, even while under the influence of an
intoxicant. Historically, legislatures did not limit the
ability of individuals to carry firearms while under the
influence of an intoxicant, and the Second Amendment affords
heightened protections of the right as exercised in the home.
Accordingly, Wis. Stat. § 941.20(1)(b) unconstitutionally
infringed Christen's right to bear arms within his own home.
A. Legislatures did not historically limit an individual's
right to bear arms while under the influence of an
intoxicant.
¶107 Contrary to the majority's mode of analysis, "Heller
signals that courts should approach challenges to statutes
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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."
Roundtree, 395 Wis. 2d 94, ¶75 (Rebecca Grassl Bradley, J.,
dissenting) (emphasis added). From before the enactment of the
Second Amendment through the late-18th and early-19th centuries,
legislatures did not limit the individual right to bear arms
while under the influence of an intoxicant. Indeed, few
colonial-era laws even regulated the use of firearms while
consuming alcohol, and none dealt with carrying while
intoxicated. See Mark Frassetto, Firearms and Weapons
Legislation up to the Early 20th Century (January 15, 2013).4
For example, in 1655 Virginia passed a law stating: "What
persons or persons soever shall, after publication hereof, shoot
any guns at drinking (marriages and funerals only excepted) that
such person or persons so offending shall forfeit 100 lb. of
tobacco . . . ." 1655 Va. Acts 401, Acts of March 10, 1655, Act
XII (emphasis added). This law had nothing to do with bearing a
firearm while drinking; instead, it prohibited shooting while
drinking, although shooting guns while celebrating a marriage or
mourning a death was completely lawful.
¶108 Other states regulated the firing of guns on
particular occasions. A 1665 New York law, for example, stated:
"Whereas experience hath demonstrated and taught that . . . much
4This source is readily available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200991.
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Drunkenness and other insolence prevail on New Year's and May
Days, by firing of guns, . . . [which leads] to deplorable
accidents such as wounding, . . . the director
General . . . expressly forbids from this time forth all firing
of Guns." Ordinance of the Director General and Council of New
Netherland to Prevent Firing of Guns, 1665 N.Y. Laws 205. New
York did not prohibit the carrying of weapons while consuming
alcohol, but forbade the firing of guns on only two days out of
the year——New Years and May Day——due to the "Drunkenness and
insolence prevail[ing]" on those holidays. Even the shooting of
firearms while under the influence of intoxicants remained
lawful the other 363 days of the year, while the act of carrying
guns was lawful every day.
¶109 Other laws closely predating ratification of the
Second Amendment also indicate that early Americans regulated
only the shooting or operation of guns but not the act of
bearing them. In 1769, New York passed a law prohibiting "any
person" from "fir[ing] and discharg[ing] any guns . . . in any
street, lane, or alley, garden, or other inclosure, or from any
house, or in any other place where persons frequently walk." An
Act for the More Effectual Prevention of Fires in the City of
New York, 1761-1775 N.Y. Laws 548 (1769). Likewise, in 1771 New
Jersey passed a law prohibiting "any person . . . to set any
loaded gun in such manner as that the same shall be intended to
go off or discharge itself." An Act to Prevent Trespassing with
Guns, 1763-1775 N.J. Laws 346, ch. 539, § 10. Neither of these
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laws restricted the carrying of a firearm, regardless of a
person's state of sobriety or level of intoxication.
¶110 Influencing colonial regulation of shooting——whether
intoxicated or sober——was a concern for the wasteful expenditure
of gunpowder and the potential for its unsafe storage. See Saul
Cornell & Nathan DeNino, A Well-Regulated Right: The Early
American Origins of Gun Control, 73 Fordham L. Rev. 487, 510-11
(2004). Indeed, an array of 18th century statutes in the
founding era "provide[d] for the safe storage and transport of
gunpowder" and set "[l]imits on the amount of gunpowder a person
could possess." Id. at 510 n.159, 511 (collecting statutes).
Early 17th century laws also reflected this concern by
proscribing the expenditure of gunpowder while drinking. In
1632, for example, Virginia passed a law prohibiting the
"commander of any plantation" from "spend[ing] powder
unnecessarily, that is to say in drinking or entertainment."
1632 Va. Acts 178, Acts of September 4th, 1632, Act XLIV
(emphasis added). Laws criminalizing the carrying of a weapon
while consuming alcohol are non-existent in the historical
record predating and surrounding ratification of the Second
Amendment.
¶111 The realities of life in early America explain why
individuals under the influence of an intoxicant were able to
carry arms with no legal impediment. "In early America,
drinking alcohol was an accepted part of everyday life at a time
when water was suspect[.]" Bruce I. Bustard, Alcohol's Evolving
Role in U.S. History, Spirited Republic, Winter 2014, at 15, 15.
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"Farmers took cider, beer, or whiskey into their fields," and
ale would often accompany supper for many early Americans. Id.From the late-18th century until the mid-19th century, annual
alcohol consumption was on average much higher than present day.
Id.; see Bradley J. Nicholson, Courts-Martial in the Legion
Army: American Military in the Early Republic, 1792-1796, 144
Mil. L. Rev. 77, 93 n.69 ("Heavy alcohol consumption was common
in early America.") (citation omitted). In 1790, the average
early American consumed approximately 5.8 gallons of alcohol
annually, a figure which rose to 7.1 gallons by 1830. Bustard,
supra, at 15. Contrast this to contemporary times, during which
the average American consumes only 2.3 gallons per year. Id.
¶112 Coinciding with early America's culture of alcohol
consumption was the widespread ownership of arms. "Gun owning
was so common in colonial America (especially in comparison with
other commonly owned items) that any claim that 18th-century
America did not have a 'gun culture' is implausible, just as one
could not plausibly claim that early Americans did not have a
culture of reading or wearing clothes." James Lindgren & Justin
L. Heather Counting Guns in Early America, 43 Wm. & Mary L. Rev.
1777, 1840-41 (2002). Guns were held by many Americans and were
often passed down from generation to generation. See id. 1800-
01, 1811 ("Guns were common in 1774 estates, even in admittedly
incomplete probate records."). Accordingly, while founding-era
lawmakers may have limited an individual's ability to shoot guns
while drinking, prohibiting the carrying of firearms while
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drinking did not square with the prevalence of early-American
alcohol consumption and the carrying of firearms.
¶113 The right to bear arms was not unlimited, even in the
founding era. During that time period, legislatures
"disqualified categories of people from the right to bear
arms . . . when they judged that doing so was necessary to
protect the public safety." Kanter v. Barr, 919 F.3d 437, 451
(7th Cir. 2019) (Barrett, J., dissenting). In particular, early
Americans restricted the possession of firearms by individuals
who were "dangerous to society," such as violent felons. See
Roundtree, 395 Wis. 2d 94, ¶75 (Rebecca Grassl Bradley, J.,
dissenting). However, there is no evidence in the historical
record indicating that individuals under the influence of
intoxicants were understood to present a "danger" to society
much less temporarily disqualified from using firearms. To the
contrary, the common law restricted firearm possession by those
who committed "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).
Additionally, "colonial legislatures passed statutes disarming
Native Americans and slaves, purportedly out of fear of their
armed 'revolt' or other threats to 'public safety.'" Roundtree,
395 Wis. 2d 94, ¶89 (Rebecca Grassl Bradley, J., dissenting)
(citing Kanter, 919 F.3d at 458 (Barrett, J., dissenting)
(citing Joyce Lee Malcolm, To Keep and Bear Arms 122 (1994))).
Reflecting English parliament's fear of Catholic "revolt,
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massacre, and counter-revolution," American colonists also
dispossessed Catholics of their firearms. Kanter, 919 F.3d at
457 (Barrett, J., dissenting). Individuals temporarily under
the influence of an intoxicant simply did not fall under any
categorical exclusions from firearm possession, even
temporarily, as confirmed by the lack of any founding-era laws
imposing such restrictions.5
¶114 Founding-era history supports the conclusion that the
Second Amendment protects the individual right to bear arms,
notwithstanding the concurrent consumption of alcohol, but
resolving Christen's as-applied challenge rests on a more
fundamental foundation of the Second Amendment: an individual's
right to bear arms within the home.
B. The Second Amendment provides heightened
protections in the home.
¶115 The Second Amendment's protection of the individual
right to bear arms is most heightened in the home——where the
State alleged Christen violated Wis. Stat. § 941.20(1)(b). As
recognized by the United States Supreme Court, "'the need for
defense of self, family, and property is most acute' in the
home." McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at
5 Heller's language stating that the opinion should not be
read to "cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill" is of no
relevance in assessing the constitutionality of laws
criminalizing the intoxicated bearing of firearms. Heller, 554
U.S. at 626. Heller decided the constitutionality of a ban on
handguns in the home and the Court unequivocally ruled that
challenges to other restrictions on the Second Amendment right
must be resolved based upon its text, history, and tradition.
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628). For this reason, the Second Amendment "elevates above all
other interests the right of law-abiding, responsible citizens
to use arms in defense of hearth and home." Heller, 554 U.S. at
635.
¶116 Unlike the majority's conclusions in this case, the
United States Supreme Court's holdings are grounded in
constitutional history. In colonial times, many able-bodied men
were "not simply allowed to keep their own arms, but
affirmatively required to do so." Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82
Mich. L. Rev. 204, 214-15 (1983). This duty was deeply rooted
in the English tradition, under which individuals had "arms
readily available in their homes, . . . prepared at all times to
chase down felons in response to the hue and cry, or to assemble
together . . . in case of foreign invasion." Id. at 215 (citing
F. Maitland, The Constitutional History of England 276 (Fisher
ed., 1961)). In keeping with this tradition, "the [early
American] duty to keep arms applied to every household, not just
to those containing persons subject to militia services." Id.In this manner, colonial settlers provided "for the defense of
their homes from criminals and foreign enemies." Id. (citing
The Laws and Liberties of Massachusetts 42 (M. Farrard ed.,
1929, reprinted from the 1648 ed.)).
¶117 Many founding-era scholars, who either influenced the
Framers or interpreted the Constitution shortly after its
adoption, understood the importance of keeping firearms in the
home. William Blackstone, for example, described the right to
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keep and bear arms in the home as an "absolute right of
individuals," explaining that "having arms for . . . defence" is
a "natural right of resistance and self-preservation." William
Blackstone, Commentaries on the Laws of England 144 (John
Murray, ed., 1857). St. George Tucker, a prominent anti-
federalist, described the right to bear arms as the "true
palladium of liberty" and cautioned against gradual
encroachments on this right as witnessed in England. St. George
Tucker, Blackstone's Commentaries 143 (1803). Tucker feared the
State's "specious pretext[s]" for disarmament where "not one man
in five hundred can keep a gun in his house without being
subject to a penalty." Id. Both Blackstone's and Tucker's
conceptions of the Second Amendment were deeply rooted in the
writings of Sir Edward Coke, who likewise influenced the
Framers. Coke adamantly affirmed the existence of the right to
possess arms for home defense. See 3 Sir Edward Coke, The Third
Part of the Institutes of the Laws of England 161 (5th ed.,
1671). "For a mans house is his castle," wrote Coke, and "for
where shall a man be safe, if it be not in his house?" Id.¶118 "At the time of the founding, as now, 'to bear' meant
to 'carry'"——a term which some understood, among other things,
to reflect "the natural right of defense 'of one's person or
house.'" Heller, 554 U.S. at 584 (citing 2 Collected Works of
James Wilson (K. Hall & M. Hall eds., 2007)). Similarly, "arms"
were understood to mean "weapons of offence, or armour of
defence"——a right which unsurprisingly would retain paramount
significance in the home. Id. at 581 (citing Samuel Johnson, 1
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Dictionary of the English Language (1773)). Given the original
meaning of the "right to bear arms," the Heller Court naturally
determined that the Second Amendment "guarantee[s] the
individual right to possess and carry weapons in case of
confrontation," particularly in "defense of hearth and home."6
Heller, 554 U.S. at 592, 635 (emphasis added).
C. Wisconsin Stat. § 941.20(1)(b) as applied to Christen's
right to bear arms in case of confrontation in his home
¶119 The Second Amendment's protection of the individual
right to bear arms in the home in case of confrontation renders
Wis. Stat. § 941.20(1)(b) unconstitutional as applied to
Christen. On the night in question, Christen consumed alcohol
to a point of intoxication. He went armed in case of
confrontation with his roommates or their guests. Importantly,
all of this conduct occurred within the confines of his own
home. The Second Amendment most assuredly protects "carrying a
gun from the bedroom to the kitchen" in one's home, yet
§ 941.20(1)(b) criminally penalized Christen for exercising this
fundamental right. Rogers, 140 S. Ct. at 1868 (Thomas, J.,
This is not to say that the Second Amendment does not
6
apply with full force outside the home. Far from it. "It would
take serious linguistic gymnastics——and a repudiation of [the]
Court's decisions in Heller——to claim that the phrase 'bear
arms' does not extend the Second Amendment beyond the home."
Rogers v. Grewal, ___ U.S. ___, 140 S. Ct. 1865, 1869 (2020)
(denying petition for writ of certiorari) (Thomas, J.,
dissenting). Indeed, "the full context . . . [of Heller] shows
that the Second Amendment" is not "confined to the 'defense of
hearth and home.'" State v. Roundtree, 2021 WI 1, ¶92, 395
Wis. 2d 94, 952 N.W.2d 765 (Rebecca Grassl Bradley, J.,
dissenting).
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dissenting) (quoted source omitted). The Second Amendment does
not countenance such a restriction on the fundamental individual
right to bear arms in case of confrontation in the home.
¶120 The fact that Christen was intoxicated does not
justify the State's encroachment on this fundamental right.
During the founding era, legislatures did not restrict the
individual right to bear arms to periods of sobriety, even
outside the home. Within the home, the right to bear arms is
"most acute." McDonald, 561 U.S. at 767 (quoting Heller, 554
U.S. at 628).
¶121 While the majority acknowledges that "[a] lawful
firearm owner, even if intoxicated, cannot be convicted under
§ 941.20(1)(b) if he or she acts in self-defense," majority op.,
¶27 (emphasis added), the majority fails to understand the
difference between acting in self-defense and going armed in
case of confrontation. In Wisconsin, "[a] person is privileged
to threaten or intentionally use force against another for the
purpose of preventing or terminating what the person reasonably
believes to be an unlawful interference with his or her person
by such other person." Wis. Stat. § 939.48(1). In this case,
because a jury concluded that Christen did not act in self-
defense, the majority leaps to the conclusion that he was
properly convicted. See majority op., ¶46. But in rejecting
Christen's self-defense argument, the jury concluded only that
Christen was not privileged to threaten or use force against his
roommates or their guests. In upholding Christen's conviction,
the majority conflates carrying a gun with actions taken in
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self-defense——the threat or intentional use of force. The
majority never addresses Christen's argument that the Second
Amendment guarantees the right to bear arms in the home in case
of confrontation, whether intoxicated or sober. It does.
¶122 As the constitutional text and the historical record
establish, criminalizing the intoxicated carrying of firearms in
the home violates the original meaning of the Second Amendment,
which "guarantee[s] the individual right to possess and carry
weapons in case of confrontation." Heller, 554 U.S. at 592.
This exercise of the right to bear arms retains heightened
protections in the home, "where the need for defense of self,
family, and property is most acute." Id. at 628. Because Wis.
Stat. § 941.20(1)(b) criminalized the right to bear arms in case
of confrontation in the home, the statute violated Christen's
Second Amendment right to bear arms.
* * *
A blind enforcement of every act of the
legislature, might relieve the court from the trouble
and responsibility of deciding on the consistency of
the legislative acts with the constitution; but the
court would not be thereby released from its
obligations to obey the mandates of the constitution,
and maintain the paramount authority of that
instrument[.]
Philip B. Kurland & Ralph Lerner, The Founders' Constitution,
Vol. V, p. 213 (1987) (quoting Bliss v. Commonwealth, 12 Little
90 (Ky. 1822)). The majority reflexively defers to the
legislature's encroachment of fundamental constitutional rights,
in derogation of the "paramount authority" of the Constitution.
In doing so, the majority embraces the policy-laden notion that
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the Second Amendment protects something the majority deems too
dangerous and perhaps dislikes. The majority's disdain for the
"pre-existing right" of "citizens to use arms in defense of
hearth and home," Heller, 554 U.S. at 635, is evident in its
unconstitutional recasting of this fundamental right as a mere
"privilege" bestowed by the State, as the majority sees it. See
majority op., ¶44. This case represents the latest example of
judges "decid[ing] on a case-by-case basis whether the right is
really worth insisting upon." Heller, 554 U.S. at 634. As the
United States Supreme Court recognized in Heller, that decision
was made by the American people at the time the Second Amendment
was adopted. In this decision, the majority overrides the will
of the people by circumscribing the fundamental constitutional
right to bear arms in case of confrontation in the home. I
respectfully dissent.
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1