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SCOW rejects 2nd Amendment challenge to “going armed while intoxicated” statute

State v. Mitchell L. Christen, 2019AP1767-CR,  affirming an unpublished court of appeals decision; 5/4/21, case activity (including briefs)

Christen was armed while drunk in his apartment when he threatened to shoot his roommates.  A jury found that he violated §941.20(1)(b), which makes it a crime to operate or go armed with a firearm while intoxicated. Christen challenged the constitutionality of §941.20(1)(b) as applied to him because it burdened his 2nd Amendment right to armed self-defense under District of Columbia v. Heller, 554 U.S. 570 (2008). In a 5-1-1 opinion, SCOW rejects this challenge. Hagedorn concurs. R.G. Bradley dissents arguing in part that the prevalence of guns and copious alcohol consumption in the colonies show that the Framers guaranteed Americans the right to be armed while drunk.

Christen argued that, under §941.20(1)(b), his legal consumption of alcohol voided his 2nd Amendment right to carry a firearm in self-defense. But the majority noted that his consumption wasn’t legal.  A jury specifically found that Christen was “under the influence of an intoxicant”–i.e. his ability to handle a firearm was materially impaired” due to the consumption of alcohol. The jury also specifically found that Christen was not acting in self-defense. Opinion, ¶¶48-49.

The majority held that the right to bear arms is a core right protected by the 2nd Amendment. Per its recent decision in State v. Roundtree, 2021 WI 1, 395 Wis. 2d 94, 952 N.W.2d 765, it thus assessed Christen’s challenge using a two-step inquiry: (1) does a challenged law impose a burden that falls within the scope of the 2nd Amendment; and (2) what is the strength of the government’s interest in restricting the exercise of 2nd Amendment rights. Opinion, ¶34. [Click here for our post on Roundtree where SCOW rejected a 2nd Amendment challenge to the felon-in-possession statute.]

Applying “intermediate scrutiny” the majority held that Christen’s “as applied” challenge failed step two. Opinion, ¶¶40-62. It stressed the State’s legitimate interest in protecting people from harm caused by the combination of firearms and alcohol consumption and held that §941.20(1)(b) is substantially related to this important objective.  Opinion, ¶¶56-61.

The majority chose intermediate level scrutiny based on decisions by non-Wisconsin courts but cautioned that a different level of scrutiny might apply in a case involving a different statute or different facts.  Opinion, ¶52 n.12.

Fodder for future litigation: The majority dropped a footnote suggesting that the scope of Wisconsin’s self-defense jury instruction may not be commensurate with the scope of self-defense protected by the 2nd Amendment. Opinion, ¶45 n.10.

Hagedorn filed a concurring opinion arguing that the majority opinion “was insufficiently rooted in the original public meaning of the 2nd Amendment.”

R.G. Bradley filed a dissent defending the individual’s “true palladium of liberty” to carry a firearm while drunk in his own home. She criticizes the majority for failing to follow Heller‘s analytical framework which requires consideration of the 2nd Amendment’s text and history. There’s a lot more to her opinion but what stands out is her argument that the Framers did not limit the colonists’ right to bear arms to periods when they were sober. In colonial America, gun ownership was widespread and the average colonist drank 5.8 gallons of alcohol annually compared to the average American today who drinks 2.3 gallons annually. Thus, she reasons, “[f]ounding era history supports the conclusion that the Second Amendment protects the individual right to bear arms notwithstanding the concurrent consumption of alcohol.” Opinion, ¶114.



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