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Ban on firearm silencers is constitutional

State v. Thomas Michael Barrett, 2020 WI App 13; case activity (including briefs)

The court of appeals rejects Barrett’s facial and void-for-vagueness challenges to Wisconsin’s prohibition on firearm silencers, § 941.298.

Barrett’s facial challenge argues the statute violates the Second Amendment, and relies on District of Columbia v. Heller, 554 U.S. 570 (2008).

¶19     Heller stated that the definition of “arms” protected by the Second Amendment is the same today as it was in the eighteenth century; that is, “[w]eapons of offence, or armour of defen[se]” or “any thing that a man wears for his defen[se], or takes into his hands, or use[s] in wrath to cast at or strike another.” Id. at 581 (citations omitted; first set of brackets in Heller). The Court recognized that “the Second Amendment is not unlimited,” and does not include the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. It also recognized that the Second Amendment protects only “the sorts of weapons … in common use,” and does not extend to “dangerous and unusual weapons” “not typically possessed by law- abiding citizens for lawful purposes[.]” Id. at 625-27 (citations omitted).

¶20    A silencer does not fall within the definition of “arms” contemplated by Heller—it is not used as a defense nor is it, in and of itself, used to “cast at or strike another.” See id. at 581 (citation omitted). A silencer does not serve any intrinsic self-defense purpose nor is it “typically possessed by law-abiding citizens for lawful purposes[.]” See id. at 625. Silencers, therefore, are not “arms.”

Nor are silencers protected because they are necessary for the effective operation of a firearm, a category recognized by Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (invalidating ordinance banning firing ranges in city while simultaneously requiring firing-range training to own a firearm). “Barrett points to no evidence suggesting that firearms cannot be effectively used without silencers. He simply points to activities which would be enhanced by silencer usage, but that are not dependent upon such usage. Unlike the facts in Ezell where the use of firing ranges was mandatory for lawful gun ownership and necessary for maintaining proficiency in firearm usage, nothing about the use of silencers is mandatory for effective firearm usage.” (¶22).

Barrett’s vagueness argument—that the statute fails to give notice of what types of items are prohibited—also misses its target. (¶¶24-29). “Barrett’s argument is centered on the fact that the statute does not identify who must intend that the device is for silencing. The statute is not concerned with who possesses a silencer or why; the statute deals with silencers in and of themselves. The statute clearly states that any device used for silencing—whether it was manufactured as a silencer or not—is prohibited by the statute unless a party is registered to own such a device.” (¶28). And in any event, Barrett’s conduct plainly fell within the scope of the statute. (¶29).

Barrett also makes fact-specific claims about outrageous government conduct in his case that the court of appeals rejects as insufficiently supported by legal argument or the facts. (¶¶5-11, 30-35).

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