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“As applied” challenge to guns statute fails, despite State’s tacit concession

State v. Mitchell L. Christen, 2019AP1767-Cr, 3/17/20, District 4 (1-judge opinion; ineligible for publication); review granted 9/16/16; case activity (including briefs)

Interesting case. Section 941.20(1)(b) makes operating or going armed with a firearm while under the influence of an intoxicant a misdemeanor.  Christen argued that the statute violates the 2nd Amendment “as applied” to anyone who engages in the prohibited conduct while inside his or her home. The State declined to file a response brief, which means it conceded the point. Still, the court of appeals rejected Christen’s argument and affirmed.

A party may challenge the constitutionality of a statute “on its face” (which means it’s unconstitutional in all circumstances) or “as applied” (which means it’s unconstitutional in the facts or circumstances presented by the party’s case). A party making an “as applied” challenge, must show that his constitutional rights were actually violated.

Christen claimed his rights were violated per District of Columbia v. Heller, 554 U.S. 570, (2008), which protects a person’s right to keep handguns for use and protection in one’s own home.

The court of appeals noted that the 2nd Amendment right to bear arms is tied to “a virtuous citizenry and the government may disarm “unvirtuous citizens.” Opinion, ¶5. (citing U.S. v. Yancey, 621 F.3d 681, 684-685 (7th Cir. 2010)(per curiam) and U.S. v. Vongxay, 594 F.3d 1111 (9th Cir. 2010)).

Turns out the court of appeals didn’t see Christen as all that “virtuous.” His own brief admitted to drinking heavily and getting into disputes with his roommates, making threats with his gun and so forth.  His argument rested entirely on hypotheticals involving virtuous handgun owners, not the facts of his case. Hence, judgment affirmed. (Opinion, ¶7).

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