The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A 5-2 decision in yesterday's State v. Roundtree; the majority, written by Justice Ann Walsh Bradley, applies intermediate scrutiny, based on the D.C. v. Heller statement that "felon dispossession statutes are 'presumptively lawful,'" and upholds the flat ban on gun possession by all felons on the grounds that:
Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here….
"Other courts addressing this issue have observed that nonviolent offenders not only have a higher recidivism rate than the general population, but certain groups—such as property offenders—have an even higher recidivism rate than violent offenders, and a large percentage of the crimes nonviolent recidivists later commit are violent." … [S]everal studies "have found a connection between nonviolent offenders … and a risk of future violent crime."
Justice Rebecca Grassl Bradley dissents, reasoning in part that:
In considering an as-applied challenge to a law "that entirely bars the challenger from exercising the core Second Amendment right, any resort to means-end scrutiny is inappropriate" when the challenger falls outside of "the historical justifications supporting the regulation." Instead, "such laws are categorically invalid as applied to persons entitled to Second Amendment protection." … [Wisconsin's categorical ban on the possession of firearms by non-dangerous felons] went "even further than the 'severe restriction' struck down in Heller: it completely eviscerate[d] the Second Amendment right" as to an entire group of individuals who were historically proven to retain it….
Whether applying strict scrutiny or some lesser standard, Wis. Stat. § 941.29(1m) is unconstitutional as applied to Roundtree…. Section 941.29(1m) bans every felon from possessing a firearm in this state, regardless of whether he poses a danger to the public…..
Roundtree committed a non-violent felony when he failed to pay child support [for 120 days] nearly 13 years ago. The sentencing court did not send Roundtree to prison, indicating he was not deemed dangerous to the public. The record shows he made full restitution by paying what he owed and he did not reoffend. Roundtree has never been convicted of a violent crime and the State did not introduce any evidence otherwise suggesting that Roundtree poses a danger to society. Abandoning any pretense of conducting an individualized inquiry into the application of Wisconsin's felon disarmament statute to Roundtree specifically, the majority instead resorts to nearly decade-old data from the Wisconsin Department of Corrections indicating that 21.4 percent of those who committed "public order offenses" and spent time in prison later committed a violent crime….
Justice Brian Hagedorn also dissents, though he would invalidate the law as applied to Roundtree under intermediate scrutiny; here's a passage that I found particularly noteworthy:
The State's correlation-centric reasoning—that Wis. Stat. § 941.29(1m)(a) substantially furthers the fight against gun-related violence simply by virtue of a correlation between past crime of any sort and future violent crime—does not meet the mark. Playing this logic out further, suppose those who previously declared bankruptcy are modestly more likely to commit violent crime in the future? Or those who do not have a bachelor's degree by the time they are 25? How about those who were born out of wedlock, or who fall below the poverty line? Taking the State's argument on its face, dispossession laws barring these classes of persons (which impact not a small amount of the population) would survive as long as the State could prove that these features are correlated with an increased risk of committing violent crime with a firearm. Modest correlation, however, is simply not enough. And at best, that is all the State has here.
If you're interested in the subject, all three opinions are much worth reading.