On Point: 34. Bear Arms, 2nd Am.

State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

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.

State v. Mitchell L. Christen, 2019AP1767-Cr, 3/17/20, District 4 (1-judge opinion; ineligible for publication); review granted 9/16/16; case activity (including briefs)

Interesting case. Section 941.20(1)(b) makes operating or going armed with a firearm while under the influence of an intoxicant a misdemeanor.  Christen argued that the statute violates the 2nd Amendment “as applied” to anyone who engages in the prohibited conduct while inside his or her home. The State declined to file a response brief, which means it conceded the point. Still, the court of appeals rejected Christen’s argument and affirmed.

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.

State v. Norris W. Culver, 2018 WI App 55; case activity (including briefs)

Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.

Question presented:

Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction?

The brief answer from two recent federal court decisions is “yes,” though the devil, as they say, is in the details.

Voisine v. United States, USSC No. 14-10154, 2016 WL 3461559, 579 U.S. ___ (June 27, 2016), affirming United States v. Voisine, 778 F.3d 176 (1st Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. § 922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use … of physical force.” 18 U.S.C. § 921(a)(33)(A). Resolving a question that United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014), left unanswered, the Court, by a 5-to-2 vote, holds that misdemeanor assault convictions for reckless conduct (as contrasted to knowing or intentional conduct) trigger the statutory firearms ban.

Village of Somerset v. Mark J. Hoffman, 2015AP140, District 3, 5/17/16 (not recommended for publication); case activity (including briefs)

Viewed through the interpretive prism mandated by § 66.0409(6), a local ordinance prohibiting “wander[ing] or stroll[ing] in an aimless manner” that is “not usual for law abiding individuals under circumstances that warrant alarm for the safety of persons” isn’t violated by a person walking around with a loaded semi-automatic rifle slung over his shoulder and a loaded handgun in a holster on his hip.

Jaime Caetano v. Massachusetts, USSC No. 14-10078, 2016WL1078932 (per curiam), vacating Commonwealth v. Caetano, 470 Mass. 774, 26 N.E.2d 688 (2015); SCOTUSblog page (including links to briefs and commentary)

Jaime Caetano obtained a stun gun in order to protect herself from an abusive boyfriend. When she was prosecuted for violating a Massachusetts statute that prohibited the possession of stun guns, she argued that the law violated her 2nd Amendment right to keep and bear arms.  The Supreme Judicial Court of Massachusetts ruled against her. SCOTUS, in one fell swoop, granted her cert petition and reversed. Here is the meat of its two-page per curiam opinion: