State of Wisconsin, Plaintiff-Respondent, v. Mitchell L. Christen, Defendant-Appellant-Petitioner.
No. 2019AP1767-CR
Supreme Court of Wisconsin
May 4, 2021
2021 WI 39
2021 WI 39
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1767-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Mitchell L. Christen, Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 391 Wis. 2d 650, 943 N.W.2d 357
(2020 – unpublished)
OPINION FILED: May 4, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 21, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Nicholas McNamara
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs filed by Steven Roy, Sun Prairie. There was an oral argument by Steven Roy.
For the plaintiff-respondent, there was a brief filed by Nicholas S. DeSantis, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an orаl argument by Nicholas S. DeSantis.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No. 2019AP1767-CR
(L.C. No. 2018CM1998)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
v.
Mitchell L. Christen,
Defendant-Appellant-Petitioner.
FILED
MAY 4, 2021
Sheila T. Reiff
Clerk of Supreme Court
ZIEGLER, C.J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1
armed with a firearm while intoxicated, contrary to
¶2 Christen challenges his conviction arguing that
¶3 However, as
By the Court.—The decision of the court of appeals is affirmed.
2019AP1767-CR.bh
¶65 BRIAN HAGEDORN, J. (concurring). The Second Amendment
I. BACKGROUND
¶66 Christen‘s conviction stems from events that took place during the early-morning hours of February 3, 2018, in a Madison apartment he shared with two roommates. Christen estimated that, over the course of the evening, he consumed four beers and one shot. After returning to his apartment, Christеn argued with one of his roommates and one of his roommate‘s friends. At one point, Christen, who was in his bedroom, picked up a gun and “held it sideways towards the wall away from” his roommate‘s friend, prompting the friend to shut Christen‘s bedroom door.
¶67 After that exchange, Christen began recording a video with his cell phone. He announced that he was going to the kitchen and bringing a gun with him because he did not “trust anybody in this house.” Christen emerged from his bedroom with a handgun tucked into his waistband and went to the kitchen. The friend Christen previously threatened disarmed him and another friend disassembled the gun. Christen retreated to his bedroom, whеre he retrieved a shotgun and cocked it. From his bedroom, Christen dialed 911 to report a stolen firearm; police responded, and Christen was arrested. The responding officer noted that Christen bore several indicators of intoxication.
¶68 Christen was charged with pointing a firearm at another, operating or going armed with a firearm while intoxicated, and disorderly conduct. Christen moved the circuit court1 to dismiss the second charge, arguing that a conviction under
that motion, and a jury convicted him of disorderly conduсt and operating or going armed with a firearm while intoxicated under
II. DISCUSSION
¶69
¶70 In my dissenting opinion in Roundtree, 395 Wis. 2d 94, ¶¶105-71 (Hagedorn, J., dissenting), I explained that the original public meaning of the Second Amendment should guide the constitutional analysis, and why the historical record is of particular import to this inquiry. I begin with a brief summary of these principles, then review the historical record, and finally, apply this to the facts of Christen‘s case.
A. Principles of Interpretation
¶71 Under our Constitution, the people declared that the government has no power to regulate in certain areas, and therefore it may not criminalize conduct in those areas. See Cohen v. California, 403 U.S. 15, 18-19 (1971); Roundtree, 395 Wis. 2d 94, ¶109 (Hagedorn, J., dissenting). Many of these limits are found in the federal Constitution‘s Bill of Rights—among them, the Second Amendment‘s protection of the right “to keep and bear Arms.”
¶72 The primary interpretive tool in constitutional analysis is the constitutional text, infоrmed by its context and structure. District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008); Vos, 393 Wis. 2d 38, ¶28. The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
one already held by the people when the Second Amendment was adopted. Heller, 554 U.S. at 592. The Second Amendment therefore referenced a right with a preexisting scope and substance, and gave it protection in our fundamental law. Id.
¶73 The scope and substance of a constitutional right articulated in the text may be informed by the historical record. Vos, 393 Wis. 2d 38, ¶28 n.10. In the Second Amendment context, it is not immediately apparent, more than two centuries removed from its enactment, precisely what fell within the full reach of “the right of the people to keep and bear Arms,” nor whether and when the government may enact laws touching upon firearm possession, carrying, and use. Young v. State, 992 F.3d 765, 784 (9th Cir. 2021) (en banc); Roundtree, 395 Wis. 2d 94, ¶122 (Hagedorn, J., dissenting). Nevertheless, by looking to the historical record, “we can discern the principal themes” that inform what the public understood the provision to mean when it was adopted. Young, 992 F.3d at 784; Roundtree, 395 Wis. 2d 94, ¶114 (Hagedorn, J., dissenting). “The meaning of the text as enlightened by the historical record is no less binding because the historical inquiry is still directed toward discovering what the words were understood to convey when written.” Roundtree, 395 Wis. 2d 94, ¶114 (Hagedorn, J., dissenting). Therefore, our task in this case is to study the historical record to learn whether the right protected by the Second Amendment protects armed intoxication.
B. Armed Intoxication
¶74 The Second Amendment protects the longstanding, natural right to self-defense,
¶75 It appears that no jurisdiction had a law criminalizing armed intoxication on its books when the Second Amendment was adopted in 1791. See State v. Weber, 163 Ohio St. 3d 125, 2020-Ohio-6832, 168 N.E.3d 468, ¶85 (DeWine, J., conсurring) (“It seems clear that laws identical to R.C.
2923.15 [criminalizing armed intoxication] did not exist at the time of the founding.“). However, the historical record suggests states could permissibly curtail the reckless handling of firearms and recognized the aggravating nature of intoxication, particularly when paired with weapons.
¶76 One set of laws along these lines prohibited firing a gun under circumstances where doing so would be reckless. A 1655 Virginia law required anyone who fired a gun while intoxicated to forfeit 100 pounds of tobacco.4 A New York law from the same era prohibited firing guns on New Year‘s and May Days, recognizing the “deplorable accidents such as wounding” caused by the drunken handling of weapons on those days.5 A 1774 Pennsylvania law similarly prohibited firing a gun without reason around New Year‘s.6 And a 1785 New York law did the same for “the eve of the last day of December, and the first and second days of January.”7
¶77 In addition, stretching back to 1840, states have in various ways forbidden the reckless brandishing of a weapon when
not necessary for self-defense. An 1840 Mississippi law provided:
If any person having or carrying any dirk, dirk knife, Bowie knife, sword, sword cane, or other deadly weapon, shall, in the presence of three оr more persons, exhibit the same in a rude,
angry and threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or quarrel, the person or persons so offending, upon conviction thereof in the circuit or criminal court of the proper county, shall be fined in a sum not exceeding five hundred dollars, and be imprisoned not exceeding three months.[8]
An 1854 Washington law followed suit, making it a crime to “in a rude, angry, or threatening manner, in a crowd of two or more persons, exhibit any pistol, bowie knife, or
¶78 It is also clear that founding-era governments had broad power to regulate intoxication, even when doing so might impinge on certain fundamental rights. One early Ohio territorial statute provided that if “any person by being intoxicated, shall be found making or exciting any noise, contention or disturbancе, at any tavern, court, election, or other meeting” that
Drunkenness and other insolence prevail on New Year‘s and May Days, by firing of guns, . . . [which leads] to deplorable accidents such as wounding, . . . the director General . . . expressly forbids from this time forth all firing of Guns.” Ordinance of the Director General and Council of New Netherland to Prevent Firing of Guns, 1665 N.Y. Laws 205
¶109 Other laws closely predating ratification of the Second Amendment also indicate that early Americans regulated only the shooting or
laws restricted the carrying of a firearm, regardless of a person‘s state of sobriety or level of intoxication.
¶110 Influencing colonial regulation of shooting—whether intoxicated or sober—was a concern for the wasteful expenditure of gunpowder and the potential for its unsafe storage. See Saul Cornell & Nathan DeNino, A Well-Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 510-11 (2004). Indeed, an array of 18th century statutes in the founding era “provide[d] for the safe storage and transport of gunpowder” and set “[l]imits on the amount of gunpowder a person could possess.” Id. at 510 n.159, 511 (collecting statutes). Early 17th century laws also reflected this concern by proscribing the expenditure of gunpowder while drinking. In 1632, for example, Virginia passed a law prohibiting the “commander of any plantation” from “spend[ing] powder unnecessarily, that is to say in drinking or entertainment.” 1632 Va. Acts 178, Acts of September 4th, 1632, Act XLIV (emphasis added). Laws criminalizing the carrying of a weapon while consuming alcohol are non-existent in the
¶111 The realities of life in early America explain why individuals under the influence of an intoxicant were able to carry arms with no legal impediment. “In early America, drinking alcohol was an accepted part of everyday life at a time when water was suspect[.]” Bruce I. Bustard, Alcohol‘s Evolving Role in U.S. History, Spirited Republic, Winter 2014, at 15, 15.
“Farmers took cider, beer, or whiskey into their fields,” and ale would often accompany supper for many early Americans. Id. From the late-18th century until the mid-19th century, annual alcohol consumption was on average much higher than presеnt day. Id.; see Bradley J. Nicholson, Courts-Martial in the Legion Army: American Military in the Early Republic, 1792-1796, 144 Mil. L. Rev. 77, 93 n.69 (“Heavy alcohol consumption was common in early America.“) (citation omitted). In 1790, the average early American consumed approximately 5.8 gallons of alcohol annually, a figure which rose to 7.1 gallons by 1830. Bustard, supra, at 15. Contrast this to contemporary times, during which the average American consumes only 2.3 gallons per year. Id.
¶112 Coinciding with early America‘s culture of alcohol consumption was the widespread ownership of arms. “Gun owning was so common in colonial America (especially in comparison with other commonly owned items) that any claim that 18th-century America did not have a ‘gun culture’ is implausible, just as one could not plausibly claim that early Americans did not have a culture of reading or wearing clothes.” James Lindgren & Justin L. Heather, Counting Guns in Early America, 43 Wm. & Mary L. Rev. 1777, 1840-41 (2002). Guns were held by many Americans and were often passed down from generation to generation. See id. 1800-01, 1811 (“Guns were common in 1774 estates, even in admittedly incomplete probate records.“). Accordingly, while founding-era lawmakers may have limited an individual‘s ability to shoot guns while drinking, prohibiting the carrying of firearms while
drinking did not square with the prevalence of early-American alcohol consumption and the carrying of firearms.
¶113 The right to bear arms was not unlimited, even in the founding era. During that time period, legislatures “disqualified categories of people from the right to bear arms . . . when they judged that doing so was necessary to protect the public safety.” Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting). In particular, early Americans restricted the possession of firearms by individuals who were “dangerous to society,” such as violent felons. See Roundtree, 395 Wis. 2d 94, ¶75 (Rebecca Grassl Bradley, J., dissenting). However, there is no evidence in the historical record indicating that individuals under the influence of intoxicants were understood to present a “danger” to society much less temporarily disqualified from using firearms. To the contrary, the common law restricted firearm possession by those who committed “very serious, very dangerous offenses such as murder, rape, arson, and robbery.” Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339, 1362 (2009). Additionally, “colonial legislatures passed statutes disarming Native Americans and slaves, purportedly out of fear of their armed ‘revolt’ or other threats to ‘public safety.‘” Roundtree, 395 Wis. 2d 94, ¶89 (Rebecca Grassl Bradley, J., dissenting) (citing Kanter, 919 F.3d at 458 (Barrett, J., dissenting) (citing Joyce Lee Malcolm, To Keep and Bear Arms 122 (1994))). Reflecting English parliament‘s fear of Catholic “revolt,
massacre, and counter-revolution,”
¶114 Founding-era history supports the conclusion that the Second Amendment protects the individual right to bear arms, notwithstanding the concurrent consumption of alcohol, but resolving Christen‘s as-applied challenge rests on a more fundamental foundation of the Second Amendment: an individual‘s right to bear arms within the home.
B. The Second Amendment provides heightened protections in the home.
¶115 The Second Amendment‘s protection of the individual right to bear arms is most heightened in the home—where the State alleged Christen violated
628). For this reason, the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.
¶116 Unlike the majority‘s conclusions in this case, the United States Supreme Court‘s holdings are grounded in constitutional history. In colonial times, many able-bodied men were “not simply allowed to keep their own arms, but affirmatively required to do so.” Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 214-15 (1983). This duty was deeply rooted in the English tradition, under which individuals had “arms readily available in their homes, . . . prepared at all times to chase down felons in response to the hue and cry, or to assemble together . . . in case of foreign invasion.” Id. at 215 (citing F. Maitland, The Constitutional History of England 276 (Fisher ed., 1961)). In keeping with this tradition, “the [early American] duty to keep arms applied to every household, not just to those containing persons subject to militia services.” Id. In this manner, colonial settlers provided “for the defense of their homes from criminals and foreign enemies.” Id. (citing The Laws and Liberties of Massachusetts 42 (M. Farrard ed., 1929, reprinted from the 1648 ed.)).
¶117 Many founding-era scholars, who either influenced the Framers or interpreted the Constitution shortly after its adoption, understood the importance of keeping firearms in the home. William Blackstone, for example, described the right to
keep and bear arms in the home as an “absolute right of individuals,” explaining that “having arms for . . . defence” is a “natural right of resistance and self-preservation.” William Blackstone, Commentaries on the Laws of England 144 (John Murray, ed., 1857). St. George Tucker, a prominent anti-federalist, described the right to bear arms as the “true
¶118 “At the time of the founding, as now, ‘to bear’ meant to ‘carry‘“—a term which some understood, among other things, to reflect “the natural right of defense ‘of one‘s person or house.‘” Heller, 554 U.S. at 584 (citing 2 Collected Works of James Wilson (K. Hall & M. Hall eds., 2007)). Similarly, “arms” were understood to mean “weapons of offence, or armour of defence“—a right which unsurprisingly would retain paramount significance in the home. Heller, 554 U.S. at 581 (citing Samuel Johnson, 1
Dictionary of the English Language (1773)). Given the original meaning of the “right to bear arms,” the Heller Court naturally determined that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation,” particularly in “defense of hearth and home.”6 Heller, 554 U.S. at 592, 635 (emphasis added).
C. Wisconsin Stat. § 941.20(1)(b) as applied to Christen‘s right to bear arms in case of confrontation in his home
¶119 The Seсond Amendment‘s protection of the individual right to bear arms in the home in case of confrontation renders
dissenting) (quoted source omitted). The Second Amendment does not countenance such a restriction on the fundamental individual right to bear arms in case of confrontation in the home.
¶120 The fact that Christen was intoxicated does not justify the State‘s encroachment on this fundamental right. During the founding era, legislatures did not restrict the individual right to bear arms to periods of sobriety, even outside the home. Within the home, the right to bear arms is “most acute.” McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 628).
¶121 While the majority acknowledges that “[a] lawful firearm owner, even if
self-defense—the threat or intentional use of force. The majority never addresses Christen‘s argument that the Second Amendment guarantees the right to bear arms in the home in case of confrontation, whether intoxicated or sober. It does.
¶122 As the constitutional text and the historical record establish, criminalizing the intoxicated carrying of firearms in the home violates the original meaning of the Second Amendment, which “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, 554 U.S. at 592. This exercise of the right to bear arms retains heightened protections in the home, “where the need for defense of self, family, and property is most acute.” Id. at 628. Because
* * *
A blind enforcement of every act of the legislature, might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the constitution; but the court would not be thereby released from its obligations to obey the mandates of the constitution, and maintain the paramount authority of that instrument[.]
Philip B. Kurland & Ralph Lerner, The Founders’ Constitution, Vol. V, p. 213 (1987) (quoting Bliss v. Commonwealth, 12 Little 90 (Ky. 1822)). The majority reflexively defers to the legislature‘s encroachment of fundamental constitutional rights, in derogation of the “paramount authority” of the Constitution. In doing so, the majority embraces the policy-laden notion that
the Second Amendment protects something the majority deems too dangerous and perhaps dislikes. The majority‘s disdain for the “pre-existing right” of “citizens to use arms in defense of hearth and home,” Heller, 554 U.S. at 635, is evident in its unconstitutional recasting of this fundamental right as a mere “privilege” bestowed by the State, as the majority sees it. See majority op., ¶44. This case represents the latest example of judges “decid[ing] on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U.S. at 634. As the United States Supreme Court recognized in Heller, that decision was made by the American people at the time the Second Amendment was adopted. In this decision, the majority overrides the will of the people by circumscribing the fundamental constitutional right to bear arms in case of confrontation in the home. I respectfully dissent.