958 N.W.2d 746

Wis.

2021

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

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(2020 – unpublished)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 oral аrgument 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,

Mitchell L. Christen,

Defendant-Appellant-Petitioner.

FILED

MAY 4, 2021

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op. (Wis. Ct. App. Mar. 17, 2020), affirming the Dane County circuit court‘s¹ judgment convicting Mitchell Christen of operating or going

armed with a firearm while intoxicated, contrary to Wis. Stat. § 941.20(1)(b) (2017-18).²

¶2 Christen challenges his conviction arguing that Wis. Stat. § 941.20(1)(b) is unconstitutional as applied to him. He does not raise a facial challenge to the statute. Specifically, Christen claims that the statute violates his fundamental Second Amendment right to armed self-defense as held in District of Columbia v. Heller, 554 U.S. 570 (2008).³ In Heller, the United States Supreme Court recognized that the core of the Second Amendment is the right to possess or carry a firearm for self-defense. Id. at 635.

¶3 However, as to Christen‘s as-applied challenge, we conclude Wis. Stat. § 941.20(1)(b) does not strike at the core right of the Second Amendment because he did not act in self-defense. Moreover, we conclude that § 941.20(1)(b) does not severely burden his Second Amendment right. Accordingly, we

By the Court.—The decision of the court of appeals is affirmed.

State v. Christen

2019AP1767-CR.bh

Wisconsin Supreme Court

¶65 BRIAN HAGEDORN, J. (concurring). The Second Amendment to the United States Constitution protects the individual right to keep and bear arms. This right is broad, but it does not always prohibit the state from taking focused, prophylactic measures to protect against gun-related violence. Earlier this term, I concluded in dissent that the state did not meet its burden to prove a substantial relationship between dispossessing a felon convicted of failing to pay child support for 180 days and preventing gun-related violence. See State v. Roundtree, 2021 WI 1, ¶¶105-71, 395 Wis. 2d 94, 952 N.W.2d 765 (Hagedorn, J., dissenting). This case provides another opportunity for this court to explore the contours of the rights protected by the Second Amendment. The court concludes—and I agree—that Mitchell Christen‘s conviction for operating or going armed with a firearm while intoxicated does not violate the Second Amendment. However, in my view, the majority‘s analysis is insufficiently rooted in the original public meaning of the Second Amendment. Therefore, I reach the same underlying conclusion, but rest instead on the history of the Second Amendment right as understood when adopted and incorporated against the states.

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 hе 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, Christen 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 tuckеd 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, where 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, аrguing that a conviction under Wis. Stat. § 941.20(1)(b) (2017-18)² would violate his right to bear arms within his home. The circuit court denied

that motion, and a jury convicted him of disorderly conduct and operating or going armed with a firearm while intoxicated under § 941.20(1)(b). Christen appealed the circuit court‘s denial of his motion to dismiss, which the court of appeals affirmed. State v. Christen, No. 2019AP1767-CR, unpublished slip op. (Wis. Ct. App. Mar. 17, 2020). This court granted Christen‘s petition for review.

II. DISCUSSION

¶69 Wisconsin Stat. § 941.20(1)(b) provides that a person who “[o]perates or goes armed with a firearm while he or she is under the influence of an intoxicant” is guilty of a Class A misdemeanor. Put simply, § 941.20(1)(b) criminalizes armed intoxication. Christen challenges the constitutionality of this provision as applied to him. Therefore, we look to the specific facts of his case, not to hypothetical or different facts. See State v. Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785. When analyzing an as-applied challenge, it generally does not matter whether the statute might have some applications that are contrary to the Constitution if the defendant‘s own conviction lacks a constitutional defect. See State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63. An as-applied challenge therefore attacks the application of the statute—a conviction in this case—rather than the statute itself. See Serv. Emps. Int‘l Union, Loc. 1 v. Vos, 2020 WI 67, ¶37, 393 Wis. 2d 38, 946 N.W.2d 35.

¶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 Amendmеnt‘s protection of the right “to keep and bear Arms.” U.S. Const. amend. II; McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).

¶72 The primary interpretive tool in constitutional analysis is the constitutional text, informed 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.” U.S. Const. amend. II. The text‘s reference to “the right of the people” recognizes that the Second Amendment “codified a pre-existing right” to keep and bear arms,

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, but even as originally understood, this core right was not unlimited in scope; some regulation was permitted. Heller, 554 U.S. at 595; Roundtree, 395 Wis. 2d 94, ¶¶125, 129 (Hagedorn, J., dissenting). When the Second Amendment was adopted, and later incorporated against the states,³ laws restricting the right to keep and bear arms were rare, but did exist. See McDonald, 561 U.S. at 770-77. “Those that existed were largely aimed at persons or classes of people who might violently take up arms against the government in rebellion, or at persons who posed a more immediate danger to the public.” Roundtree, 395 Wis. 2d 94, ¶129 (Hagedorn, J., dissenting).

¶75 It appears that no jurisdiction hаd 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., concurring) (“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 cаrrying any dirk, dirk knife, Bowie knife, sword, sword cane, or other deadly weapon, shall, in the presence of three or 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 оr more persons, exhibit any pistol, bowie knife, or other dangerous weapon.”⁹ And an 1855 California law similarly made it illegal to “draw or exhibit any of said deadly weapons in a rude, angry and threatening manner, not in necessary self-defense . . . in any fight or quarrel.”¹⁰ During the 1860s and 70s, several more states adopted similar laws criminalizing brandishing a weapon when not necessary for self-defense, including: Idaho in 1864,

Texas in 1866, Arizona in 1867, Arkansas in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1868, Nevada in 1873, and Indiana in 1875.¹¹

¶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 eаrly Ohio territorial statute provided that if “any person by being intoxicated, shall be found making or exciting any noise, contention or disturbance, at any tavern, court, election, or other meeting” that person could be fined or imprisoned until “such court, election or meeting is over.”¹² Another law, an 1811 Maryland statute, forbade selling “spirituous or fermented liquors” on election days. Cearfoss v. State, 42 Md. 403, 406 (1875). “Simply because the right to vote and the right to assemble were considered fundamental rights did not mean that

These and other relevant laws can be accessed via the Repository of Historical Gun Laws at the Duke Center for Firearms Law. https://firearmslaw.duke.edu/repository/search-the-repository/.

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. New York did not prohibit the carrying of weapons while consuming alcohol, but forbade the firing of guns on only two days out of the year—New Years and May Day—due to the “Drunkenness and insolence prevail[ing]” on those holidays. Even the shooting of firearms while under the influence of intoxicants remained lawful the other 363 days of the year, while the act of carrying guns was lawful every day.

¶109 Other laws closely predating ratification of the Second Amendment also indicate that early Americans regulated only the shooting or operation of guns but not the act of bearing them. In 1769, New York passed a law prohibiting “any person” from “fir[ing] and discharg[ing] any guns . . . in any street, lane, or alley, garden, or other inclosure, or from any house, or in any other place where persons frequently walk.” An Act for the More Effectual Preventiоn of Fires in the City of New York, 1761-1775 N.Y. Laws 548 (1769). Likewise, in 1771 New Jersey passed a law prohibiting “any person . . . to set any loaded gun in such manner as that the same shall be intended to go off or discharge itself.” An Act to Prevent Trespassing with Guns, 1763-1775 N.J. Laws 346, ch. 539, § 10. Neither of these

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 historical record predating and surrounding ratification of the Second Amendment.

¶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 Americаns. Id. From the late-18th century until the mid-19th century, annual alcohol consumption was on average much higher than present 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,” American colonists also dispossessed Catholics of their firearms. Kanter, 919 F.3d at 457 (Barrett, J., dissenting). Individuals temporarily under the influence of an intoxicant simply did not fall under any categorical exclusions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from firearm possession, even temporarily, as confirmed by the lack of any founding-era laws imposing such restrictions.⁵

¶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 Wis. Stat. § 941.20(1)(b). As recognized by the United States Supreme Court, “‘the need for defense of self, family, and property is most acute’ in the home.” McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at

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 palladium of liberty” and cautioned against gradual encroachments on this right as witnessed in England. St. George Tucker, Blackstone‘s Commentаries 143 (1803). Tucker feared the State‘s “specious pretext[s]” for disarmament where “not one man in five hundred can keep a gun in his house without being subject to a penalty.” Id. Both Blackstone‘s and Tucker‘s conceptions of the Second Amendment were deeply rooted in the writings of Sir Edward Coke, who likewise influenced the Framers. Coke adamantly affirmed the existence of the right to possess arms for home defense. See 3 Sir Edward Coke, The Third Part of the Institutes of the Laws of England 161 (5th ed., 1671). “For a mans house is his castle,” wrote Coke, and “for where shall a man be safe, if it be not in his house?” Id.

¶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 heаrth 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 Second Amendment‘s protection of the individual right to bear arms in the home in case of confrontation renders Wis. Stat. § 941.20(1)(b) unconstitutional as applied to Christen. On the night in question, Christen consumed alcohol to a point of intoxication. He went armed in case of confrontation with his roommates or their guests. Importantly, all of this conduct occurred within the confines of his own home. The Second Amendment most assuredly protects “carrying a gun from the bedroom to the kitchen” in one‘s home, yet § 941.20(1)(b) criminally penalized Christen for exercising this fundamental right. Rogers, 140 S. Ct. at 1868 (Thomas, J.,

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 intoxicated, cannоt be convicted under § 941.20(1)(b) if he or she acts in self-defense,” majority op., ¶27 (emphasis added), the majority fails to understand the difference between acting in self-defense and going armed in case of confrontation. In Wisconsin, “[a] person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person.” Wis. Stat. § 939.48(1). In this case, because a jury concluded that Christen did not act in self-defense, the majority leaps to the conclusion that he was properly convicted. See majority op., ¶46. But in rejecting Christen‘s self-defense argument, the jury concluded only that Christen was not privileged to threaten or use force against his roommates or their guests. In upholding Christen‘s conviction, the majority conflates carrying a gun with actions taken in

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 Wis. Stat. § 941.20(1)(b) criminalized the right to bear arms in case of confrontation in the home, the statute violated Christen‘s Second Amendment right to bear arms.

* * *

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.

Notes

The Honorable Nicholas J. McNamara presided. The Honorable Nicholas J. McNamara of the Dane County Circuit Court presided.

All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. All subsequent references to the Wisconsin Statutes are to the 2017-18 version.

We note that the United States Supreme Court in , stated this right in a variety of ways: “the individual right to possess and carry weapons in case of confrontation,” id. at 592; “an individual right to use arms for self-defense,” id. at 603; and “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” id. at 635. Each of these formulations makes clear that the Second Amendment protects the right of an individual to possess and carry weapons for self-defense. Seе (identifying the core Second Amendment right detailed in Heller as “the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense“). “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” . The Second Amendment was ratified in 1791, but when analyzing the Second Amendment‘s meaning as incorporated against the states under the Fourteenth Amendment, “the focus of the original-meaning inquiry is carried forward in time; the Sеcond Amendment‘s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified.” (citing ). Therefore, our study of the Second Amendment‘s historical record includes both the Founding and Reconstruction Eras.

Act of March 10, 1655, 1655 Va. Laws 401-02.

Ordinance of The Director General and Council of New Netherland to Prevent Firing Of Guns, Planting May Poles and Other Irregularities Within This Province, 1665 N.Y. Laws 205. Heller‘s language stating that the opinion should not be read to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill” is of no relevance in assessing the constitutionality of laws criminalizing the intoxicated bearing of firearms. . Heller decided the constitutionality of a ban on handguns in the home and the Court unequivocally ruled that challenges to other restrictions on the Second Amendment right must be resolved based upon its text, history, and tradition.

An Act to Suppress the Disorderly Practice of Firing Guns, etc., on the Times Therein Mentioned, 1759-1776 Pa. Acts 421, § 1. This is not to say that the Second Amendment does not apply with full force outside the home. Far from it. “It would take serious linguistic gymnastics—and a repudiation of [the] Court‘s decisions in Heller—to claim that the phrase ‘bear arms’ does not extend the Second Amendment beyond the home.” (denying petition for writ of certiorari) (Thomas, J., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dissenting). Indeed, “the full context . . . [of Heller] shows that the Second Amendment” is not “confined to the ‘defense of hearth and home.‘” (Rebecca Grassl Bradley, J., dissenting).

An Act to Prevent the Firing of Guns and other Fire Arms within this State on Certain Days Therein Mentioned, 1784-1785 N.Y. Laws 152.

Volney Erskine Howard, The Statutes of the State of Mississippi of a Public and General Nature, with the Constitutions of the United States and of this State: And an Appendix Containing Acts of Congress Affecting Land Titles, Naturalization, and a Manual for Clerks, Sheriffs and Justices of the Peace 676 (1840).

An Act Relative to Crimes and Punishments, and Proceedings in Criminal Cases, 1854 Wash. Sess. Law 80, ch. 2, § 30.

William H.R. Wood, Digest of the Laws of California: Containing All Laws of a General Character Which were in Force on the First Day of January, 1858 334 (1861).

An Act Concerning Crimes and Punishments, 1864 Id. Sess. Laws 304, § 40; George Washington Paschal, 2 A Digest of the Laws of Texas: Containing Laws in Force, and the Repealed Laws on Which Rights Rest 1321 (1873); An Act to Prevеnt the Improper Use of Deadly Weapons and the Indiscriminate Use of Fire Arms in the Towns and Villages of the Territory, 1867 Ariz. Sess. Laws 21-22, § 1; 1868 Ark. Acts 218, §§ 12-13; An Act to Amend an Act Entitled “An Act Concerning Crimes and Punishments,” 1873 Nev. Stat. 118, ch. 62, § 1; An Act Defining Certain Misdemeanors, and Prescribing Penalties Therefore, 1875 Ind. Acts 62, § 1.

Salmon P. Chase, Statutes of Ohio and of the Northwestern Territory, Adopted or Enacted from 1788 to 1833 Inclusive: Together with the Ordinance of 1787; the Constitutions of Ohio and of the United States, and Various Public Instruments and Acts of Congress 503 (1833).

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