The Wisconsin Supreme Court split this week on the question of what constitutes a violation of a felon’s Second Amendment rights.
In a decision released on Thursday, the majority of the justices on the court declined to allow a man with a felony to possess a gun simply because he had been convicted of a nonviolent offense, finding the application of the felon-in-possession statute was constitutional in his case.
Justices Rebecca Bradley and Brian Hagedorn took exception to the majority’s reasoning, finding the man in the case had been deprived of his constitutional rights.
The court reviewed State of Wisconsin v. Leevan Roundtree, a case involving a man who was convicted of various felonies in 2003 for failing to pay child support. As a consequence of the conviction, Roundtree was permanently prohibited from possessing a gun.
In 2015, Milwaukee police executed a search warrant at his home and found a revolver and ammunition hidden under his mattress. Roundtree pleaded guilty to a single count of possession of a firearm by a felon and was sentenced to 18 months of initial confinement and 18 months of extended supervision.
Roundtree moved for postconviction relief, but the circuit court denied his motion. The judge concluded that Roundtree had waived his constitutional challenge by entering a guilty plea.
That decision was later affirmed on an appeal but for reasons that were different than those originally cited. The appellate court explained that it was “settled law” that a firearm ban should apply in this case regardless of whatever particular felony the defendant might have committed.
Roundtree then asked the state Supreme Court to review whether the felon-in-possession statute was unconstitutional as applied to him. His as-applied challenge relied on his contention that his felony charges were nonviolent and, therefore, insufficient to curtail his constitutional right to bear arms.
Majority: ‘Reasonable’ to keep felons from guns
The state Supreme Court reviewed the level of scrutiny that should be used to resolve the challenge.
Roundtree argued that the court should use a strict-scrutiny review. The State of Wisconsin, in contrast, argued that intermediate scrutiny was consistent with precedent.
The Supreme Court agreed with the state. In the majority opinion, Justice Ann Walsh Bradley said that conclusion was consistent with that of other courts that have considered the question.
“In contrast, Roundtree points us to no case in which an appellate court has applied strict scrutiny to a Second Amendment challenge to a felon-in-possession statute,” Walsh Bradley wrote. “Absent any such application of strict scrutiny in Wisconsin or elsewhere in this type of case, we decline to break new ground.”
Walsh Bradley particularly questioned Roundtree’s suggestion that failing to pay child support wasn’t as bad as taking someone’s property.
“Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities,” Walsh Bradley wrote. ” … Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree.”
Walsh Bradley noted research cited by the State and data from the Department of Corrections suggesting that nonviolent offenders have a higher recidivism rate than both the general population and violent offenders.
“(E)ven if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here,” Walsh Bradley wrote.
Chief Justice Pat Roggensack and Justices Rebecca Dallet, Jill Karofsky and Annette Ziegler joined in Walsh Bradley’s opinion.
Bradley, Hagedorn find constitutional violation
Justices Rebecca Bradley and Brian Hagedorn dissented, finding that Roundtree’s Second Amendment rights had been violated.
Bradley took exception in particular to the majority’s statement that it’s reasonable to want to keep guns out of felons’ hands.
“It may be ‘reasonable’ to the majority but it surely isn’t constitutional,” Bradley wrote in her dissent.
She said the majority applied the wrong standard of review and deprived Roundtree of his constitutional right to keep and bear arms. Bradley said she believes the case has significance for all Wisconsinites.
“The majority threatens every Wisconsin citizen’s right to keep and bear arms by failing to acknowledge the right as fundamental and accordingly using the wrong level of review,” Bradley wrote.
Hagedorn, in his own dissent, agreed that Roundtree’s Second Amendment rights had been violated. He said the state “has come nowhere close” to meeting its burden to demonstrate that the law is constitutional as applied to Roundtree.
He discussed the history of the Second Amendment’s guarantee of the right to keep and bear arms.
“Felon-dispossession laws may be permissible under this historical protection, but only where the State shows the restriction substantially advances the State’s interest in protecting against gun-related violence,” Hagedorn wrote.
In a footnote, Hagedorn said he agreed with the majority of Bradley’s dissent, but he believed something less than strict scrutiny is “more in keeping with the historical record.”
Concurring opinion on waiver of as-applied challenge
Justice Rebecca Dallet wrote a concurring opinion about whether Roundtree has waived his as-applied challenge to the statute’s constitutionality by pleading guilty. She, along with Walsh Bradley and Karofsky, concluded that he had not.
Dallet said in the U.S. Supreme Court case Class v. United States, the court had applied an exception to the guilty-plea-waiver rule to allow a defendant to challenge the constitutionality of the statute of conviction on appeal. Given the analysis, Dallet said there was no justification for continuing to treat as-applied challenges differently from facial challenges.
“This court should therefore adopt the holding in Class, not only to remain consistent with United States Supreme Court precedent but also to continue to strike the proper balance between efficient judicial administration and the protection of a defendant’s constitutional rights,” Dallet wrote. Follow @WLJReporter