State v. Bernabe Gonzalez, 2024AP358-CR, 5/6/25, District I (1-judge decision, ineligible for publication); case activity
In what we believe is COA’s first foray into the vexing world of firearm regulation post-Bruen and Rahimi, COA holds that Wisconsin’s statute prohibiting intoxicated persons from “going armed” passes muster under an originalist legal analysis.
Faithful readers will recall that this issue previously reached SCOW in 2021, resulting in a 5-1-1 decision (with Justice Hagedorn concurring and Justice R.G. Bradley dissenting) holding that § 941.20(1)(b) is constitutional.
As COA now acknowledges, however, that decision has been overruled by SCOTUS’s decision in Bruen, which “rejected” the legal analysis relied on by the majority in that decision. (¶3). Accordingly, Gonzalez moved to dismiss this prosecution based on that newer, controlling legal authority. (Id.). Following some interesting legal wrangling (more on that in a moment), the circuit court granted the motion. (¶6). COA addresses the following issues on appeal:
Forfeiture
Pursuant to the burden-shifting scheme set forth in Bruen, Gonzalez’s motion should have triggered the State’s duty to prove the constitutionality of this firearm regulation. The State’s response, however, was to cite Christen, apparently without recognizing that this authority was no longer valid. (¶3). Prior to the hearing–and after briefing had apparently completed–the State filed a letter making some additional legal arguments. (Id.). Although Gonzalez objected to the court’s consideration of the letter, the court indicated that the letter would not change its analysis, critiqued the quality of the State’s litigation, and then relied on its own legal research to find the law unconstitutional. (¶4).
The State then filed a motion for reconsideration under a civil statute, § 806.07. (¶5). Gonzalez objected to the State’s belated attempt to meet its burden using this legal mechanism. (¶6). The court accepted the State’s motion, made more comments critical of the State’s efforts, and once again ruled in favor of Gonzalez. (Id.).
On appeal, Gonzalez’s first argument is that the State forfeited the more sophisticated historical arguments it now makes on appeal. (¶9). COA is unmoved. Its task in this case is to resolve a pure issue of law without any disputed facts and which was already presented to the circuit court. (¶11). Thus, even though COA, like the circuit court, criticizes the State in a lengthy footnote, the State’s failure to adequately litigate the issue below does not bar it from obtaining relief on appeal. (Id.).
To paraphrase Mel Brooks: It’s good to be the State.
Court’s Independent Investigation
COA flatly rejects the premise of Gonzalez’s argument that, when faced with a complex legal issue of this nature, the circuit court was not permitted to conduct its own legal research. (¶13). The court had an independent duty to get the answer right and a long line of cited cases establish that there is nothing improper about a court using its own legal research to assist it in reaching a decision. (Id.). Likewise, even though the circuit court made several comments that the State’s deficient litigation forced it to conduct its own research, COA holds that the circuit court did not show bias or partiality and did not improperly abandon its role to develop the arguments on the State’s behalf. (¶14).
Gonzalez is within the class of persons protected by the Second Amendment
Moving to the meaty constitutional issue, the State first argues that the Second Amendment right is possessed only by law-abiding or “responsible citizens” with reliance on some isolated language from Heller and a 2022 district court decision from Texas. (¶20). Ultimately, COA finds the argument undeveloped and does not further consider it. (¶22).
In Rahimi, SCOTUS rejected similar arguments that would restrict who is protected by the Bill of Rights:
Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8-11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. See, e.g., Heller, 554 U.S., at 635, 128 S.Ct. 2783; Bruen, 597 U.S., at 70, 142 S.Ct. 2111. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.”
For a more thorough takedown of this argumentative strategy, which seeks to preemptively bar certain folks from having constitutional rights in the first place (instead of asking the distinct question as to when persons can have their constitutional rights restricted), we encourage our readers to check out the informative decision of the Third Circuit in the more recent Range decision, which held that it is unconstitutional to bar at least some felons from possessing firearms.
History and Tradition
Applying the requisite originalist inquiry, COA is adequately persuaded that the State’s more robust briefing in this forum satisfies the requirement of a sufficient historical analogy. (We won’t bore our readers with an exhaustive canvass of those authorities or Gonzalez’s attempts to distinguish them). Instead, relying heavily on a concurrence from Justice Hagedorn in Christen COA holds:
Here, the State cited to laws from 1867, 1879, 1883, 1890, and 1909 that prohibit the possession of firearms while under the influence of alcohol. See 1867 Kan. Laws, ch. 12, § 1; MO. REV. STAT. ch. 24, § 1274 (1879); 1883 Wis. Laws, ch. 329, § 3; OKLA. STAT. art. 47, § 4 (1890); H.B. 62, § 1, 10th Leg., Reg. Sess. (Idaho 1909). These laws support that it was understood from the mid-19th century to the early 20th century that the Second Amendment did not prevent criminalizing intoxicated possession of firearms.9 Additionally, they confirm what the State’s earlier historical laws suggest, that it is permissible under the Second Amendment to regulate firearms to solve problems caused by intoxicated firearm use. See also Christen, 396 Wis. 2d 705, ¶81 (Hagedorn, J., concurring) (concluding “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”).
Ultimately, WIS. STAT. § 941.20(1)(b) is relevantly similar to historical laws because these laws all address a comparable problem—preventing firearm misuse by intoxicated people—by regulating firearm use and possession. Thus, the State has sufficiently established that § 941.20(1)(b) is consistent with our national history and tradition of regulating firearms. Therefore, we conclude that § 941.20(1)(b) is constitutional as applied to Gonzalez.11 See also Christen, 396 Wis. 2d 705, ¶81 (Hagedorn, J., concurring) (concluding based solely on historical evidence that “laws forbidding armed intoxication do not violate the Second Amendment right to keep and bear arms”).
(¶¶32-33).
How can this… so blatantly disregard evident and established things to just gaslight the existence of supreme court decisions?
I feel like the states attorney making this argument is going to have a lot of questions asked of him in the state supreme court and be embarassed right out of there