State v. Christen

ANNETTE KINGSLAND ZIEGLER, C.J.

ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Steven Roy, Sun Prairie. There was an oral argument by Steven Roy. For the plaintiff-respondent, there was a brief filed by Nicholas S. DeSantis, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Nicholas S. DeSantis. NOTICE

(L.C. No. 2018CM1998) ZIEGLER, C.J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op.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).

¶2 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.

¶3 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.

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

¶5 This case involves somewhat conflicting testimony about Christen arming himself in self-defense. Christen, his roommates, and his roommates' friends had been drinking alcohol on the evening of February 2, 2018. There was conflicting testimony about how much and to what extent there was arguing and pushing among them. However, the testimony was uncontroverted that Christen did arm himself. The jury was called upon to weigh and consider the evidence and determined that Christen went the constitutionality of a ban on handguns in the home and the Court unequivocally ruled that challenges to other restrictions on the Second Amendment right must be resolved based upon its text, history, and tradition.

¶114 Founding-era history supports the conclusion that the Second Amendment protects the individual right to bear arms, notwithstanding the concurrent consumption of alcohol, but resolving Christen's as-applied challenge rests on a more fundamental foundation of the Second Amendment: an individual's right to bear arms within the home.

¶115 The Second Amendment's protection of the individual right to bear arms is most heightened in the home—where the State alleged Christen violated Wis. Stat. § 941.20(1)(b). As recognized by the United States Supreme Court, "'the need for defense of self, family, and property is most acute' in the home." McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 628). For this reason, the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635.

¶116 Unlike the majority's conclusions in this case, the United States Supreme Court's holdings are grounded in constitutional history. In colonial times, many able-bodied men were "not simply allowed to keep their own arms, but affirmatively required to do so." Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 214-15 (1983). This duty was deeply rooted in the English tradition, under which individuals had "arms readily available in their homes, . . . prepared at all times to chase down felons in response to the hue and cry, or to assemble together . . . in case of foreign invasion." Id. at 215 (citing F. Maitland, The Constitutional History of England 276 (Fisher ed., 1961)). In keeping with this tradition, "the [early American] duty to keep arms applied to every household, not just to those containing persons subject to militia services." Id. In this manner, colonial settlers provided "for the defense of their homes from criminals and foreign enemies." Id. (citing The Laws and Liberties of Massachusetts 42 (M. Farrard ed., 1929, reprinted from the 1648 ed.)).

¶117 Many founding-era scholars, who either influenced the Framers or interpreted the Constitution shortly after its adoption, understood the importance of keeping firearms in the home. William Blackstone, for example, described the right to keep and bear arms in the home as an "absolute right of individuals," explaining that "having arms for . . . defence" is a "natural right of resistance and self-preservation." William Blackstone, Commentaries on the Laws of England 144 (John Murray, ed., 1857). St. George Tucker, a prominent anti-federalist, described the right to bear arms as the "true palladium of liberty" and cautioned against gradual encroachments on this right as witnessed in England. St. George Tucker, Blackstone's Commentaries 143 (1803). Tucker feared the State's "specious pretext[s]" for disarmament where "not one man in five hundred can keep a gun in his house without being subject to a penalty." Id. Both Blackstone's and Tucker's conceptions of the Second Amendment were deeply rooted in the writings of Sir Edward Coke, who likewise influenced the Framers. Coke adamantly affirmed the existence of the right to possess arms for home defense. See 3 Sir Edward Coke, The Third Part of the Institutes of the Laws of England 161 (5th ed., 1671). "For a mans house is his castle," wrote Coke, and "for where shall a man be safe, if it be not in his house?" Id.

¶118 "At the time of the founding, as now, 'to bear' meant to 'carry'"—a term which some understood, among other things, to reflect "the natural right of defense 'of one's person or house.'" Heller, 554 U.S. at 584 (citing 2 Collected Works of James Wilson (K. Hall & M. Hall eds., 2007)). Similarly, "arms" were understood to mean "weapons of offence, or armour of defence"—a right which unsurprisingly would retain paramount significance in the home. Id. at 581 (citing Samuel Johnson, 1 Dictionary of the English Language (1773)). Given the original meaning of the "right to bear arms," the Heller Court naturally determined that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation," particularly in "defense of hearth and home." Heller, 554 U.S. at 592, 635 (emphasis added).

¶119 The Second Amendment's protection of the individual right to bear arms in the home in case of confrontation renders Wis. Stat. § 941.20(1)(b) unconstitutional as applied to Christen. On the night in question, Christen consumed alcohol to a point of intoxication. He went armed in case of confrontation with his roommates or their guests. Importantly, all of this conduct occurred within the confines of his own home. The Second Amendment most assuredly protects "carrying a gun from the bedroom to the kitchen" in one's home, yet § 941.20(1)(b) criminally penalized Christen for exercising this fundamental right. Rogers, 140 S. Ct. at 1868 (Thomas, J., dissenting) (quoted source omitted). The Second Amendment does not countenance such a restriction on the fundamental individual right to bear arms in case of confrontation in the home.

¶120 The fact that Christen was intoxicated does not justify the State's encroachment on this fundamental right. During the founding era, legislatures did not restrict the individual right to bear arms to periods of sobriety, even outside the home. Within the home, the right to bear arms is "most acute." McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 628).

¶121 While the majority acknowledges that "[a] lawful firearm owner, even if intoxicated, cannot be convicted under § 941.20(1)(b) if he or she acts in self-defense," majority op., ¶27 (emphasis added), the majority fails to understand the difference between acting in self-defense and going armed in case of confrontation. In Wisconsin, "[a] person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person." Wis. Stat. § 939.48(1). In this case, because a jury concluded that Christen did not act in self-defense, the majority leaps to the conclusion that he was properly convicted. See majority op., ¶46. But in rejecting Christen's self-defense argument, the jury concluded only that Christen was not privileged to threaten or use force against his roommates or their guests. In upholding Christen's conviction, the majority conflates carrying a gun with actions taken in self-defense—the threat or intentional use of force. The majority never addresses Christen's argument that the Second Amendment guarantees the right to bear arms in the home in case of confrontation, whether intoxicated or sober. It does.

¶122 As the constitutional text and the historical record establish, criminalizing the intoxicated carrying of firearms in the home violates the original meaning of the Second Amendment, which "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Heller, 554 U.S. at 592. This exercise of the right to bear arms retains heightened protections in the home, "where the need for defense of self, family, and property is most acute." Id. at 628. Because Wis. Stat. § 941.20(1)(b) criminalized the right to bear arms in case of confrontation in the home, the statute violated Christen's Second Amendment right to bear arms.

A blind enforcement of every act of the legislature, might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the constitution; but the court would not be thereby released from its obligations to obey the mandates of the constitution, and maintain the paramount authority of that instrument[.] Philip B. Kurland & Ralph Lerner, The Founders' Constitution, Vol. V, p. 213 (1987) (quoting Bliss v. Commonwealth, 12 Little 90 (Ky. 1822)). The majority reflexively defers to the legislature's encroachment of fundamental constitutional rights, in derogation of the "paramount authority" of the Constitution. In doing so, the majority embraces the policy-laden notion that 70 the Second Amendment protects something the majority deems too dangerous and perhaps dislikes. The majority's disdain for the "pre-existing right" of "citizens to use arms in defense of hearth and home," Heller, 554 U.S. at 635, is evident in its unconstitutional recasting of this fundamental right as a mere "privilege" bestowed by the State, as the majority sees it. See majority op., ¶44. This case represents the latest example of judges "decid[ing] on a case-by-case basis whether the right is really worth insisting upon." Heller, 554 U.S. at 634. As the United States Supreme Court recognized in Heller, that decision was made by the American people at the time the Second Amendment was adopted. In this decision, the majority overrides the will of the people by circumscribing the fundamental constitutional right to bear arms in case of confrontation in the home. I respectfully dissent.

Weber, 2020 WL 7635472, at ¶36.