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  • Appeals court rejects nonviolent felon's challenge to firearm possession statute

    State appeals court rejects the argument that the state cannot prohibit nonviolent felons from possessing firearms, but recognizes the government’s increased burden in Second Amendment cases.

    Joe Forward

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    article title April 16, 2012 – A state law that prohibits all felons, even nonviolent ones, from possessing firearms is constitutional, according to a recent decision by a state appeals court.

    Thomas Pocian was convicted for writing forged checks, a felony, nearly 24 years ago. In 2008, he shot two deer with a gun owned by his father, and registered the deer with the Wisconsin Department of Natural Resources. He was subsequently charged with being a felon in possession of a firearm.

    He filed a motion to dismiss the case, arguing that Wis. Stat. section 941.29 (possession of a firearm) is facially unconstitutional, or in the alternative, unconstitutional as-applied to nonviolent felons.

    Pocian attacked a 2004 Wisconsin case upholding the government’s right to place reasonable restrictions on the fundamental right to keep and bear arms under the Wisconsin Constitution.

    Specifically, Pocian argued that two recent U.S. Supreme Court cases – District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) – support his arguments.

    In both cases, the U.S. Supreme Court struck down handgun bans, holding that individuals have a fundamental right to bear arms under the Second Amendment to the U.S. Constitution. In Heller, the court suggested that the government can no longer rely on a rational basis to impose gun restrictions.

    But in State v. Pocian, 2011AP1035-CR (April 11, 2012), the District II Wisconsin Court of Appeals rejected those arguments, holding that the Second Amendment cases do not prohibit states from imposing restrictions that are substantially related to an important governmental interest.

    “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,” wrote Judge Paul Reilly, noting that “[n]o state law banning felons from possessing guns has ever been struck down.”

    The appeals court also noted that in U.S. v. Williams, 616 F.3d 685 (7th Cir. 2010), the federal court upheld a categorical ban against felons possessing firearms.

    “If Pocian wants to change the law, the proper route is through the legislature,” wrote Judge Reilly, rejecting Pocian’s as-applied challenge.


    By Joe Forward, Legal Writer, State Bar of Wisconsin