932 N.W.2d 430
Wis. Ct. App.2019Background
- Moran, a Wisconsin resident, had a 1995 Virginia felony embezzlement conviction; he completed sentence and probation and paid restitution.
- Virginia governor removed political disabilities in 2006 but specifically withheld restoration of firearm rights; Moran later obtained a Virginia court order (2013) restoring his right to carry and purchased firearms in Virginia after passing NICS.
- Moran attempted to buy a handgun in Wisconsin (2016); Wisconsin DOJ denied the transfer based on his out-of-state felony under WIS. STAT. § 941.29 and § 175.35.
- DOJ concluded § 941.29(5) permits firearm possession only if a felon has (a) a pardon (as referenced in obsolete 18 U.S.C. app. § 1203) or (b) relief under 18 U.S.C. § 925(c) (a program effectively defunded by Congress).
- Moran argued (1) federal law preempts § 941.29(5) (so federal definition of "conviction" applies), (2) Virginia's restoration is the functional equivalent of a pardon, and (3) Wisconsin's denial violates Full Faith and Credit and federal/state constitutional rights.
- The DOJ administrator and circuit court upheld the denial; the court of appeals affirmed, holding Moran did not meet § 941.29(5) prerequisites and his constitutional arguments fail.
Issues
| Issue | Moran's Argument | Wisconsin/DOJ's Argument | Held |
|---|---|---|---|
| Whether federal law preempts WIS. STAT. § 941.29(5) so federal § 921(a)(20) governs | § 921(a)(20) defines "conviction" so Moran's Virginia restoration must be recognized and preempts the state statute | No conflict; state may impose its own disqualification/conditions for firearm possession and § 941.29(5) stands | Preemption rejected; Wisconsin statute controls |
| Whether Virginia's restoration of firearm rights is a "pardon" under § 941.29(5)(a) | The combined gubernatorial/court restoration in VA is functionally equivalent to a pardon for Wisconsin purposes | Virginia law distinguishes a gubernatorial pardon from restoration of political rights; Moran did not receive a pardon | Restoration is not a pardon; Moran does not satisfy § 941.29(5)(a) |
| Whether lack of available federal relief under 18 U.S.C. § 925(c) renders § 941.29(5) invalid or unenforceable | Because § 925(c) is defunded, the statutory prerequisites in § 941.29(5) are effectively nullified | The unavailability of § 925(c) does not invalidate state law; § 941.29(5) still requires its listed conditions (pardon or § 925(c) relief) | § 941.29(5) remains enforceable; Moran cannot rely on § 925(c) now |
| Constitutional challenges: Full Faith & Credit, Second Amendment, Wisconsin Constitution art. I § 25 | Full Faith & Credit requires Wisconsin to recognize VA order; Second and state constitutional rights bar application of § 941.29(5) to Moran | Full Faith & Credit does not force a State to substitute another State’s policy where they conflict; felon bans are longstanding and permissible under Heller and Wisconsin precedent | Claims rejected; no Full Faith & Credit violation and felon-in-possession ban is constitutional |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (Second Amendment ban on certain regulations does not cast doubt on longstanding prohibitions on felons possessing firearms)
- United States v. Bean, 537 U.S. 71 (ATF/AG authority and history of § 925(c) relief and its suspension)
- Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (preemption/conflict standard)
- Franchise Tax Bd. v. Hyatt, 136 S. Ct. 1277 (Full Faith and Credit limits and state policy conflicts)
- Carroll v. Lanza, 349 U.S. 408 (Full Faith and Credit does not require forum to adopt another State's conflicting statute)
- People v. Shear, 71 Cal. App. 4th 278 (state may refuse to recognize another state's restoration of firearm rights for purposes of its own criminal law)
- State v. Pocian, 341 Wis. 2d 380 (Wisconsin precedent: right to bear arms subject to reasonable restrictions, including felon-in-possession ban)