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SCOW rejects 2nd Amendment challenge to felon-in-possession statute

State v. Leevan Roundtree, 2012 WI 1, 1/7/21, affirming a per curiam court of appeals opinion, 2018AP594-CR; case activity (including briefs)

In 2003, Roundtree was convicted of multiple felony counts of failure to pay child support. Twelve years later, police executed a search warrant at his home and found a firearm and ammunition under his mattress. He pled guilty to one count of felon in possession. On appeal, he argued that §941.29(2)(2013-2014), which barred him from possessing a firearm, is unconstitutional as applied to his case. The statute has no time limit and draws no distinction between serious or violent felonies versus less serious felonies like failure to pay child support. In a 5-2 decision SCOW upheld the statute.

SCOTUS has twice struck down laws barring residential handgun possession as violating the 2nd Amendment.  Heller v. District of Columbia, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).  It held that the 2nd Amendment is not limitless, but did not define its endpoint.

Before deciding the constitutionality of Wisconsin’s felon in possession law, SCOW had to decide whether to analyze it under strict or intermediate scrutiny. SCOTUS has yet to address this point.

To survive strict scrutiny, a statute must be narrowly tailored to advance a compelling state interest. Monroe Cnty. Dep’t of Human Servs. v. Kelli B., 2004 WI 48, ¶17, 271 Wis. 2d 51, 678 N.W.2d 831.  Laws rarely survive strict scrutiny analysis. Opinion, ¶27. Intermediate scrutiny asks whether a law is substantially related to an important governmental objective.  Opinion, ¶28.

Following a recent 7th Circuit decision, SCOW settled on intermediate scrutiny. It noted Heller‘s holding that felon dispossession laws are “presumptively lawful.” Applying strict scrutiny would in effect remove that presumption. Opinion, ¶30 (citing Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019). It noted that other federal courts and the Wisconsin Court of Appeals had reached the same conclusion. Opinion, ¶¶31-32 (cases cited therein).

Intermediate scrutiny requires, in part, that a court consider the strength of the government’s justification for restricting the exercise of 2nd Amendment rights.  Even though failure to pay child support is not a violent offense, SCOW held that it is reasonable for the government to keep firearms out of the hands of those who commit felonies. It cited studies, and cases that cited studies, showing that persons convicted of nonviolent felonies often went on to commit violent felonies. Opinion, ¶¶48-51. It held that Wisconsin’s lifetime firearm ban felon is constitutional as applied to a person convicted of felony failure to pay child support.

The majority did not decide the second–and very important–issue in this case: whether the guilty plea waiver rule barred Roundtree from pursuing his as-applied challenge to the felon-in-possession statute. Under Wisconsin case law, the answer is “yes.” But SCOTUS recently held that under federal law the answer is “no.” Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018). Justice Dallet wrote a helpful concurring opinion, joined by Justices A.W. Bradley and Karoksky, explaining why Wisconsin should follow Class.  Because the majority did not decide this point, it is a great issue for a future petition for review. The lawyer who raises it now knows that at least 3 justices will follow Class. Only one more vote is needed to make a significant change in Wisconsin law. See our post on Class here. 

Justices R.G. Bradley and Hagedorn filed separate dissents. The substantive difference between them is that, like the majority, Hagedorn would apply intermediate scrutiny, but he would strike down the statute. R.G. Bradley would apply strict scrutiny, but she says that under either standard the statute is unconstitutional as applied in this case.  Both dissents cite lots of “founding era” scholars, conventions, and laws in defense of the 2nd amendment right to bear arms. Bradley’s 31-page dissent is fervid. Hagedorn’s 34-page dissent is dispassionate.

 

 

 

 

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{ 2 comments… add one }
  • Christian Thomas January 11, 2021, 10:48 am

    “It cited studies, and cases that cited studies, showing that persons convicted of nonviolent felonies often went on to commit violent felonies. Opinion, ¶¶48-51.”

    Isnt this the BEST argument for not convicting people of non-violent felonies??? The false assumption is that it is some sort of indicia of a criminal personality type. We all know that it is far more likely that labeling someone a Felon, along with possibly traumatizing that person with prison, makes it so much harder for that person to carve out a lawful and peaceful life.

  • Peter Heyne January 13, 2021, 10:50 am

    It’s a shame that Roundtree did not develop the stronger claim under the state Constitution. Article I, Section 25 of the Wisconsin Constitution, states “[t]he people have the right to keep and bear arms for security, defense, hunting, recreation **or any other lawful purpose.**” (emphasis added).

    As Justice Hagedorn noted in his dissent ¶107 n.2: “Roundtree also challenges Wis. Stat. § 941.29(1m)(a) under Article I, Section 25 of the Wisconsin Constitution. However, he fails to develop this argument in any meaningful way, and we will not do so for him. Serv. Emps. Int’l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. Accordingly, this analysis focuses on the Second Amendment alone.”

    As Justice R. Bradley noted in her dissent ¶72: “State v. Cole, 2003 WI 112, ¶20, 264 Wis. 2d 520, 665 N.W.2d 328 (“We find that the state constitutional right to bear arms is fundamental.”)”

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