State v. Pocian, 814 N.W.2d 894

Pocian, a felon, was convicted in 1986 of writing forged checks and remained a felon under Wisconsin law.
In 2008 Pocian was charged with being a felon in possession of a firearm under Wis. Stat. § 941.29 after using his father’s gun.
Pocian challenged Wis. Stat. § 941.29 as facially overbroad and as applied to him, arguing it is unconstitutional and that he is nonviolent.
The circuit court denied the motion to dismiss; Pocian appealed interlocutorily, and the court granted review.
The court applies intermediate scrutiny to assess whether § 941.29 suitably advances public safety while respecting the Second Amendment rights, and ultimately upholds the statute as applied and facially constitutional.
The court concludes the ban on felons possessing firearms is constitutional and extends to all felons, including Pocian, and affirms the circuit court’s order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wis. Stat. § 941.29 is unconstitutionally overbroad.	Pocian argues overbreadth under Heller and McDonald.	Wis. § 941.29 reasonably restricts felons from firearm possession for public safety.	§ 941.29 is not unconstitutionally overbroad.
Whether § 941.29 is unconstitutional as applied to Pocian.	As applied to nonviolent felons, the statute lacks public-safety justification for Pocian.	State may deprive Pocian of firearm rights to protect the public.	§ 941.29 is constitutional as applied to Pocian.
What level of scrutiny applies and does § 941.29 survive that scrutiny?	Rational basis should govern post-Heller; it fails.	Intermediate scrutiny applies; law substantially related to public safety.	Intermediate scrutiny satisfied; law substantially related to public safety.
Does incorporation of the Second Amendment to the states affect the outcome?			McDonald confirms incorporation but permits enduring regulation; no disagreement here.

Heller v. Dist. of Columbia, 554 U.S. 570 (2008) (recognizes individual right to keep and bear arms with exceptions noted)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (incorporation to states; right not unfettered; regulation permissible)
State v. Thomas, 274 Wis. 2d 513 (Wis. App. 2004) (upheld felon-in-possession statute under reasonable public-safety rationale)
United States v. Williams, 616 F.3d 685 (7th Cir. 2010) (post-Heller/McDonald intermediate scrutiny applied to felon-in-possession)
United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (supports public-safety objective in firearm restrictions)
State v. Agnello, 226 Wis. 2d 164 (1999) (state constitutional rights interpreted consistently with federal)