Wauwatosa lawyer files challenge to state’s silencer statute

Listen to this article

A Wauwatosa attorney facing felony gun charges claims the 20-year-old state law used to charge him is unconstitutional and the case should be dismissed.

Sole practitioner Thomas Barrett, 41, is charged with allegedly paying $400 to purchase stolen guns and an illegal silencer. Police arrested him in August. If convicted, he faces up to three years in prison and an additional three years of supervision.

But Barrett, through his defense attorney, Allison Ritter, of Ritter Law Office LLP, Milwaukee, filed a March 20 motion in Milwaukee County Circuit Court challenging the validity of the Wisconsin statute that defines an illegal silencer.

“It’s a facial challenge that applies to everyone and it’s not on the specifics of the case,” he said. “On its face, is it a good statute or does it need revision?”

Barrett declined to comment on his case, or the specifics of the challenge.

The 23-page brief Ritter filed argues the state law enacted in 1991 as part of the budget bill is invalid because it violates the constitutional right to bear arms.

According to the brief, Wis. Stat. 941.298 governing silencers infringes on the Second and Fourteenth Amendments of the U.S. Constitution, as well as under the Wisconsin Constitution, Article I, Section 25.
Ritter did not immediately respond to calls, but in the brief she wrote, “The prohibition as written has a chilling effect on any meaningful exercise of the fundamental right to keep and bear arms.”

The brief references two recent U.S. Supreme Court decisions in support of dismissal.

In 2008, the court in District of Columbia v. Heller (128 S.Ct. 2783 (2008)), ruled that the constitution protects individuals’ rights to possess firearms for lawful use, such as self defense.

Two years later, the Supreme Court extended the constitutional right to bear arms to states in McDonald v. Chicago (561 U.S. (2010)), thereby directing judges to take a broader stance when scrutinizing the necessity of gun accessories.

Milwaukee assistant district attorney Megan Williamson, the lead prosecutor in Barrett’s case, did not immediately return a call.

The prosecution has until early April to respond to the defense brief and a motion hearing is set for May 15 before Judge Charles Kahn. A jury trial is scheduled for June 4.

But according to the brief, there haven’t been any other decisions or opinions issued on the validity of Wisconsin’s silencer statute.

That fact, along with the state Supreme Court’s interpretation of Wisconsin’s concealed carry law, prompted Waukesha County District Attorney Brad Schimel to doubt the success of the challenge.

He said the Wisconsin Supreme Court has ruled that even though citizens are allowed to carry a concealed weapon with a valid permit, the state’s old law still mirrors the Second Amendment in that only homeowners or business owners protecting their own property can legally carry for legitimate purposes.

Schimel said the silencer statute is analogous to state laws regulating concealed carry and therefore could be a difficult defense to prove.

“I don’t think they get anywhere,” he said, “claiming that the silencer law runs afoul of constitutional amendments.”