Wisc. Sup. Ct. Upholds Lifelong Ban on Gun Possession for Felony Failure to Pay Child Support


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.

NEXT: Today in Supreme Court History: January 8, 1973

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  1. “but to commit a crime serious enough that the legislature has denominated it a felony”

    This is the real problem: Felony inflation. Lawmakers have been continually expanding the range of felonies, into offenses that never formerly would have been considered felonies.

    In some cases this may even be motivated by a desire to expand the number of people denied 2nd amendment rights.

    1. I agree there’s been extreme felony inflation. I think most of it has been generic “tough on crime” lawmaking with trust placed in prosecutors to do the right thing if a politician’s son gets caught with more than an ounce of pot. I wouldn’t blame it on desire to take guns away without evidence of that motive.

    2. I think felony inflation actually means the threshold amount rises not the amount of crimes that have moved from being misdemeanors to felonies.

      And even if more crimes are now considered felonies, the threshold (e.g. $1,000), has risen in the past 20 years, e.g. 2001, Oklahoma raised the felony threshold from $50 (WOW!) to $500.

    3. I’d argue that the problem isn’t felony inflation (which is a problem, just not the problem with regard to this issue). The problem is legislatures’ use of the overly-broad class “felony” and failing to distinguish between the violent and non-violent subclasses thereof.

      1. That’s what I meant by felony inflation, though I do know that the term is also used in regards to financial thresholds for felony charges moving due to fiscal inflation: The continual expansion of what counts as a “felony”.

        1. But (at least according to the link above), shouldn’t felonies be falling since the threshold went up?

          Say it’s a crime to steal a bike.

          Previously (at least in OK), if the bike was worth above $50, then that would be a felony.

          Now it’s a felony only if the bike is worth more that $500.

          Now perhaps we can say there are generally more laws and many of those laws address felonies, but what data do you see that misdemeanors are increasingly being upgraded to felonies?

          1. The link above isn’t about felony inflation of either sort. It’s about states raising the fiscal thresholds for crimes to compensate for inflation: The exact opposite of felony inflation. It states that this doesn’t seem to increase crime. Nor should it, since it’s a case of keeping the underlying rule the same while the nominals change.

            The fiscal version of felony inflation is where a state sets the threshold for felony theft at, say, $500, in 1967, and then doesn’t revisit it. In 1967, the average US income was $2,464, $500 would have been a fifth of your annual income. Pretty serious theft!

            In 2019, US average income was $39,156. $500 was less than a week’s income.

            So with the nominal threshold for a felony unchanged in the face of inflation, pickpockets have become felons, where before you’d have to have stolen what people considered a very sizeable amount of money.

  2. 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.”

    Funny how courts will pull a ‘disparate impact’ rabbit out of their ass when it is convenient for then, say in cases where more black felons happens to be contrary to their platform.

    1. Is there a footnote citing a peer reviewed study to the effect that failure to pay child support alone is and indication of likely illegal gun use?

      It seems that criminal Justice reform advocates have been advocating reducing penalties on non-violent criminals for years.

      And when did being a dead-beat dad become a felony, shouldn’t that be a civil issue? If there was criminal activity like fraud or something then maybe.

      One might begin suspect that certain classes of plaintiffs and felons are not included in the calls for reform.

      1. That’s what I thought too. Is this actually a supportable statement, or just one of those “everybody knows” things.

        However, I have a feeling that felony failure means the guy REALLY had to try and be a deadbeat.

        1. He was a deadbeat dad for only 4 months, paid it up afterwards, and hasn’t reoffended since. That’s hardly the sign of someone trying hard to be a deadbeat dad.

          1. It’s pretty common for recently divorced men to become “deadbeat dads”, since alimony often doesn’t actually take into account your new financial situation. (Like, your wife cleaned out all the savings before divorcing you, like mine did.)

            It doesn’t require any malice, penury will do it, too.

            1. Debtor’s prison.

        2. From the opinion- “In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days.”

          1. Here’s a question for you, was he unwilling to pay or unable to pay? If it comes down to being “unable to make ends meet” or not paying child support, I know what I’d choose.

      2. “Is there a footnote citing a peer reviewed study to the effect that failure to pay child support alone is and indication of likely illegal gun use?”

        It’s a string of citations that ends in an unsupported assertion: “A person who has been convicted of committing a felony (and not been pardoned) is no doubt more likely to make an illegal use of a firearm than a nonfelon…”

        1. Also note every single one of those citations is for ALL felonies which includes violent crimes. I followed through the references and they include drug dealers when talking about felons and illegal gun use. There was nothing I could find which discussed non-violent felony convictions and illegal gun use.

  3. In the sweep of world history, peaceful but unhappy transfers of power have been very difficult to arrange, but somehow the British and we and then most of the rest of the West have gotten the hang of them.

    That’s bigger than one man, whatever his personality might be. And indeed, that the system works with the sore losers is ultimately a greater testament to it than its working with the gracious ones. True, it’s not Jan. 20 yet. But my prediction is that (setting aside the surface matters related to the epidemic) it will be a Jan. 20 of an inauguration year much like any other.

    Care to revise your remarks, Gene? Why has the “Volokh Conspiracy” become the “Conspiracy of Silence”? Or, in Josh Blackman’s case, the “Trump Conspiracy”? I’m beginning to wonder if this blog is worth reading any more, considering the intellectual hypocrisy of its authors. Sad!

    1. The cowardly silence has been a tradition.

  4. I just read this too. It’s really unfortunate that the Second Amendment is treated as a second-class right. Given how thoroughly these kind of challenges have been rejected in federal courts under the federal Constitution, I was surprised that the defendant didn’t argue that the Wisconsin Constitution, which has much stronger language in its RKBA provision than the U.S. Constitution, provided a greater right and had to be reviewed under strict scrutiny. The Wisconsin Supreme Court (included some of the justices who voted against the defendant here) have previously accepted similar arguments about different constitutional provisions.

  5. Professor Volokh….Why didn’t Heller mandate strict scrutiny to take away gun ownership rights, if 2A is truly an individual right?

    Shouldn’t the government have to use the least restrictive means to achieve their goal, if an enumerated right is involved here?

    1. Trivially, because Mr. Heller wasn’t demanding restoration of his rights, he was just demanding to be able to take his gun out of his safe and assemble it in his house. The Supreme court doesn’t like to rule on more than the plaintiff is asking for.

      Generally, because the 2nd amendment IS a disfavored right, and it’s like pulling teeth to get the courts to respect it at all, they’re not going to go out of their way to protect it more than asked.

    2. It was a 5-4 decision with Roberts in the majority. Roberts wanted to save the court’s political capital by watering down the opinion. I expect that the court is now capable of issuing a strong pro-RKBA 5-4 decision with Roberts in the minority or concurring only in judgment. (Or potentially a 6-5 decision overruling Heller. Wait and see…)

  6. Funny how “correlations” and “likelihoods” are enough to take away a fundamental right. A male with black skin is 100 times more likely to commit a gun crime than nearly any other group. Can we ban black males from owning guns?

    1. I think this guy is black, but I’m not positive.

  7. “someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use.”

    Well, considering that all gun use is illegal if you’re a felon, it only stands to reason that such nonviolent felons will be more like to engage in illegal gun use.

  8. Fortunately, this is a great test case for the new Supreme Court to finally put a stop to this “intermediate” and “two-step” shenanigans.

    And if the Dems try to pack the court, hopefully that leads to the race war and cleansing we so desperately need.

  9. “…Taking the State’s argument on its face, dispossession laws barring these classes of persons (which impact not a small amount of the population) …”

    I bet I could construct various classifications of people who are slightly more likely to commit crimes in a way that almost everyone is in at least one.

    Lessee… you’re an Eagle Scout, honor student, valedictorian and committed pacifist … ooops, you you had a minor in possession charge from that freshman kegger.

    Or you are an elderly nun … ooops, you have a trespassing conviction from that 1968 anti-war sit in.

    Etc, etc.

    1. All of these machinations aside, the entire majority opinion boils down to “We don’t actually think the 2nd Amendment confers any individual right, so we’ll come up with some absurd reasoning that gets us to that point without saying it.”

      1. Pretty much.

  10. “[S]everal studies “have found a connection between BLACK offenders … and a risk of future violent crime.”

    Although I’d bet you could find such studies, I doubt they’d ever be cited in a court opinion.

  11. Shouldn’t the Volokh Conspiracy have a moment of silence for Ashli Babbitt?

    You guys lathered these rubes. The gun nuts, the White nationalists, the Common Good Christian Constitutionalists, the gay-bashers, the evangelical right, the Trump base, the immigrant-demonizing xenophobes, the Muslim-haters, the disaffected militia members, the disaffected clingers. Some of Ashli Babbitt’s blood in on your hands.

    I don’t expect the Conspirators to worry much about the Capitol Police officer (reportedly died after being beaten with a fire extinguisher by the Republican-conservative-Federalist-Volokh-Koch-Olin-Bator-Heritage coalition) — important to keep that clingerverse street cred in proper order, right? — but nothing for Ashli Babbitt?

    Even dogs tend to treat their own better than that.

    1. His name was Brian D. Sicknick.

      Baruch Dayan Ha’Emet Brian D. Sicknick. May his soul be bound up in the bonds of eternal life.

    2. So far, advantage dogs.

      Carry on, clingers.

  12. Was he more likely to re-commit his crime of failure to pay child-support if his crime was a felony than a misdemeanor? Apparently, the fact that he didn’t is overwhelmed by the statical odds that he would…

    Thought-Crime, move over. Probability-Crime takes the lead.

  13. Wisconsin is a rural red state with two blue running abscesses that are murky Milwaukee and progressively mad Madison.

    Welcome to the new normal. Hope y’all leftists enjoy it.

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