Impact of McDonald on Wisconsin Gun Laws

The Supreme Court of the United States recently addressed the question of whether the Second Amendment right to keep and bear arms is applicable to the states. In McDonald v. Chicago, the Court answered affirmatively, ruling that the protection applies to the states under the due process clause of the 14th Amendment.

In McDonald, the Court assessed the constitutionality of a city-wide ban on private ownership of handguns. The Court previously held, in District of Columbia v. Heller, that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. The protections in the Bill of Rights afforded to fundamental rights apply equally to the federal government and the states. To that end, in his dissent, Justice Stevens reminded the Court that it "did not recognize any non-militia related interests under the Second Amendment until two Terms ago." Even so, Justice Alito for the majority asserted that self-defense is a basic right and the central component of the Second Amendment right.

Therefore, the due process clause of the Fourteenth Amendment incorporates the Second Amendment right as recognized in Heller, and the Court reversed the lower court ruling that the Chicago ban was constitutional and sent the case back to the district court to issue the final decision.

Wisconsin Weapons Laws

According to the Milwaukee Journal Sentinel, Wisconsin is only one of two states that does not issue conceal and carry permits. Additionally, Wisconsin laws make it illegal to possess firearms in close proximity to schools, in public buildings, and in bars or liquor stores. While these laws may quickly be brought within legislative or judicial scrutiny, National Public Radio claims that the upshot of McDonald is not intellectual justification for "any gun, anywhere, anytime." Justice Alito acknowledged that the holding does not imperil every law regulating firearms.

Jackson County District Attorney News Release

In a news release issued the day after the McDonald ruling, district attorney for Jackson County, Gerald R. Fox, called the case a "resounding victory for all freedom-loving Americans" and promised not to accept law enforcement referrals for people who have violated the state prohibition against:

  • Uncased or loaded firearms in vehicles
  • Carrying concealed weapons, including firearms
  • Possession of firearms in public buildings
  • Possession of firearms in establishments where alcohol may be sold or served
  • Possession of knives that open with a button, or by gravity, or thrust, or movement

Additionally, Fox declared that the change invalidates Jackson County ordinances prohibiting firearms in buildings and carrying concealed weapons. He went on to denounce "so-called 'public safety' laws [that] only put law-abiding citizens at a dangerous disadvantage when it comes to their personal safety," stating that he would watch the legislature for needed corrections.

Fox concluded his statement by assuring readers he would still vigorously enforce laws against unlawfully using firearms, including but not limited to prohibitions against:

  • Felons being armed
  • Going armed while intoxicated
  • Using a firearm to commit a crime
  • Endangering safety by negligent handling of a weapon

The Journal Sentinel noted that Fox's list did not make mention of a law that makes it a felony to possess a gun within 1,000 feet of a school. Wisconsin Carry Inc. and some individuals contend that the 1,000 foot perimeter is impossible to determine and that in heavily populated areas such as Milwaukee County, the number of schools creates overlapping zones, effectively prohibiting someone from carrying a gun at all. The Journal Sentinel says Fox said he's never seen an arrest for it and it would never occur to him to prosecute that crime.

Backlash Against Fox's Policy

The Journal Sentinel also reports that Fox's stance has been criticized by law enforcement officials in Jackson County, quoting Black River Falls Police Chief Don Gilberg as saying, "When something's dumb, it's just dumb." Gilberg says his department will continue to issue citations and seize weapons for concealed carry violations.

According to the Journal Sentinel, Jackson County Sheriff Duane Waldera took a similar approach. He said that Fox's aggressive interpretation of McDonald has put his deputies in a tough position and that they will keep making arrests if they see violations, leaving it to Fox not to prosecute. The Journal Sentinel also reported on Department of Natural Resources concerns over poaching and threats to the public safety and law enforcement.

Milwaukee County District Attorney John Chisholm responded that while he's not surprised by Fox's reaction, he believes that the proper forum for resolution is in the courts and legislature and that, until that time, the responsible thing to do is enforce the laws. A spokesman for state Attorney General J.B. Van Hollen claimed that Fox's policy lies within his discretion as an elected district attorney, and declined to comment about Fox's position.

Those who have been arrested for or charged with a weapons offense should contact a criminal defense attorney for counsel on the current state of the law and protection of their constitutional rights.