2nd Amendment Violation and As-applied Challenge

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WI Supreme Court

Case Name: State of Wisconsin v. Mitchell L. Christen

Case No.: 2021 WI 39

Focus: 2^nd Amendment Violation and As-applied Challenge 

This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op.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the Dane County circuit court’s judgment convicting Mitchell Christen of operating or going This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op.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’s judgment convicting Mitchell Christen of operating or going armed with a firearm while intoxicated, contrary to Wis. Stat. § 941.20(1)(b) (2017-18).

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). 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.

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 apply intermediate scrutiny to Christen’s as-applied challenge. Because § 941.20(1)(b) is substantially related to the important government objective of protecting public safety, it survives intermediate scrutiny as applied to Christen.

Accordingly, we conclude that Christen’s as-applied challenge to Wis. Stat. § 941.20(1)(b) fails. Therefore, we affirm.

Affirmed

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.