May 12, 2021 – The Wisconsin Supreme Court recently upheld a conviction for operating or going armed with a firearm while intoxicated despite the defendant’s argument that the statute was unconstitutionally applied to him.
Under Wis. Stat. section 941.20(1)(b), whoever operates or goes armed with a firearm while under the influence of an intoxicant is guilty of a Class A misdemeanor.
Mitchell Christen was convicted under this statute after an altercation with roommates in 2018. A jury convicted Christen after hearing testimony, some conflicting, that Christen was intoxicated and threatened his roommates and friends with his firearms. At the time of these altercations, Christen was in his own home, where he lived with roommates.
Christen claimed that he armed himself in self-defense and on appeal, argued that section 941.20(1)(b), as-applied to him, violated his Second Amendment right under the U.S. Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). That case examined the right to possess or carry firearms for self-defense.
But in State v. Christen, 2021 WI 39 (May 4, 2021), the Wisconsin Supreme Court (6-1) upheld the conviction, concluding Christen did not act in self-defense, the core of the Second Amendment right, and the statute serves an important governmental interest.
“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,” wrote Chief Justice Annette Ziegler for the majority. “Accordingly, we conclude that Christen's as-applied challenge to Wis. Stat. § 941.20(1)(b) fails.”
Second Amendment Not Unlimited
Examining Heller, the majority explained that the right to keep and bear arms for self-defense is a “core” right under the Second Amendment, but there are limitations. For instance, regulations can prohibit possession or firearms by felons or the mentally ill.
Wisconsin’s statutory regulation bars firearm possession while intoxicated but the majority explained that a lawful firearm owner cannot be convicted, even if intoxicated, if acting in self-defense. Christen argued that he had the firearms for self-defense.
“He argues that his possession of his firearms is within the scope of the Second Amendment because he carried his firearms in his home for the purpose of self-defense,” the chief justice wrote. “Specifically, Christen asserts that he was armed in response to an ongoing situation in which he was afraid he may need to resort to self-defense, despite the jury's conclusion that he did not act in self-defense.”
Christen argued that the Wisconsin statute substantially burdens his Second Amendment right and asked the court to apply strict scrutiny, which requires the government to demonstrate a compelling interest for burdening fundamental rights.
“He contends that Wis. Stat. § 941.20(1)(b) cannot survive strict scrutiny review and that, even if this court were to apply intermediate scrutiny, the law is still unconstitutional as applied to him,” Chief Justice Ziegler explained.
The majority assumed without deciding that the statute regulates conduct that falls within the scope of the Second Amendment, the first of a two-step inquiry.
The majority noted that Wisconsin has a long history of criminalizing the use of carrying a firearm while intoxicated, but passed on deciding whether “the challenged law regulates activity falling outside the scope of the right as originally understood.”
The majority ruled that Christen lost on the second step, whether the statute was unconstitutional as applied to him on the appropriate means-end analysis.
Under the means-end analysis, the court determines the proper level of scrutiny to apply and then applies that level of scrutiny to the regulation.
The court determined that “strict scrutiny” did not apply. The jury decided that Christen did not act in self-defense, the core of the Second Amendment right. Thus, without a burden on his core right to bear arms, the court ruled that intermediate scrutiny applied.
Under intermediate scrutiny, the courts examine whether a law or regulation is substantially related to an important governmental objective.
“[T]the State has important governmental interests in public safety, preventing gun violence, protecting human life, and protecting people from the harm the combination of firearms and alcohol causes,” wrote Chief Justice Ziegler.
“The means the legislature chose to further these important objectives, Wis. Stat. § 941.20(1)(b), is substantially related to the important governmental objectives.”
Concurrence and Dissent
Justice Brian Hagedorn wrote a concurring opinion. He agreed with the majority that Christen’s conviction did not violate the Second Amendment.
“However, in my view, the majority's analysis is insufficiently rooted in the original public meaning of the Second Amendment,” Justice Hagedorn wrote. “Therefore, I reach the same underlying conclusion, but rest instead on the history of the Second Amendment right as understood when adopted and incorporated against the states.”
Justice Rebecca Bradley wrote a 26-page dissent, concluding that Wis. Stat. section 941.20(1)(b) “violated Christen's right to carry a firearm in his own home in case of confrontation, notwithstanding his intoxication.”
“[A] law prohibiting individuals from going armed while intoxicated cannot constitutionally be applied to an individual who goes armed in his own home.”