1. Section 941.29(2) prohibits any person convicted of a felony—even if it doesn’t involve physical violence–from possessing firearms the rest of his life. Is this statute unconstitutional as applied to a person convicted of failure to pay child support?
2. Does a guilty plea waive a claim that the statute of conviction is unconstitutional as applied?
Years ago Roundtree was twice convicted of failure to pay child support, which is a felony. He has committed no other felonies, and he likes likes to keep a gun in home for protection. Unfortunately, §941.29(2) bans him from having a gun for life and includes no mechanism for petitioning for return of his 2nd Amendment right to keep and bear arms.
Not too long ago SCOTUS struck down laws banning the possession of handguns in the home. Heller v. District of Columbia, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). SCOW has not examined the constitutionality of §941.29(2) since it decided those cases. But the court of appeals has repeatedly held that §941.29(2) is constitutional on both on its face and as applied to non-violent felons. See State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894 (Ct. App. 2012); State v. Culver, 2018 WI App 55, 384 Wis. 2d 222, 918 N.W.2d 103; State v. Rueden, 2012 WI App 88, 343 Wis. 2d 678, 819 N.W.2d 562.
The postconviction court held that by pleading guilty Roundtree forfeited his right to make an “as applied” challenge to §941.29(2). But SCOTUS recently reached the opposite conclusion in Class v. United States, _U.S._, 138 S.Ct. 798 (2018). Roundtree asks SCOW to clarify Wisconsin’s “guilty plea waiver” rule and hold that it does not apply to “as applied” challenges to the constitutionality of a statute.