Constitutional – Law FIPOF; constitutionality

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Constitutional Law
FIPOF; constitutionality

The ban on felons possessing firearms is constitutional and the ban extends to all felons, including non-violent offenders convicted more than 20 years earlier.

“By keeping guns out of the hands of felons, we hold that WIS. STAT. § 941.29 is substantially related to the important governmental objective of enhancing public safety. As we stated in Thomas, ‘the legislature determined as a matter of public safety that it was desirable to keep weapons out of the hands of individuals who had committed felonies.’ Thomas, 274 Wis. 2d 513, ¶23. While Heller mandates that § 941.29 is subject to a higher level of scrutiny than the rational basis test we used in Thomas, the law still survives intermediate scrutiny. No state law banning felons from possessing guns has ever been struck down. See United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010) (per curiam) (quoting Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 721 (2007)). Additionally, no federal ban on felons possessing guns has been struck down in the wake of Heller. The Seventh Circuit recently held that it is constitutional to categorically ban felons from possessing guns. United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010). We agree. If Pocian wants to change the law, the proper route is through the legislature.”

“The governmental objective of public safety is an important one, and we hold that the legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related to this goal. While Pocian did not utilize physical violence in the commission of his three felonies, he did physically take his victim’s property. Additionally, ‘most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm “unvirtuous citizens.”’ Yancey, 621 F.3d at 684-85. The legislature has determined that Pocian’s crimes are felonies. As such, Pocian has legislatively lost his right to possess a firearm.”

“The governmental objective of public safety is an important one, and we hold that the legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related to this goal. While Pocian did not utilize physical violence in the commission of his three felonies, he did physically take his victim’s property. Additionally, “most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” Yancey, 621 F.3d at 684-85. The legislature has determined that Pocian’s crimes are felonies. As such, Pocian has legislatively lost his right to possess a firearm.”

Affirmed.

Recommended for publication in the official reports.

2011AP1035-CR State v. Pocian

Dist. II, Washington County, Martens, J., Reilly, J.

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