The Volokh Conspiracy
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Foster Parent Second Amendment Case Sent Back to Trial Court in Light of Bruen
From today's Wisconsin Court of Appeals summary disposition in Lafferty v. Amundson (decided by Justices Gundrum, Neubauer & Grogan):
Brian and Katie Lafferty appeal from a circuit court order rejecting the Laffertys' constitutional challenges to [a] Department of Children and Families Rule, which imposes certain firearm storage requirements for foster parents, as well as the Department's prohibition on foster parents from carrying weapons while in the presence of foster children.
The relevant prohibition requires, among other things, that guns generally be stored unloaded and locked; the prohibition on carrying ready-to-use firearms on one's person would presumably flow from that.
After briefing was completed in this case and while a decision was pending, the United States Supreme Court decided New York State Rifle & Pistol Ass'n, Inc. v. Bruen (2022), in which the Court rejected the means-end scrutiny framework the Respondents rely on in this case. Instead, Bruen said:
[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."
We vacate the circuit court's order and remand for additional proceedings to allow the parties to address the Department's rule in light of Bruen and to obtain the benefit of the circuit court's decision applying the Bruen standard. On remand, the circuit court should allow the parties to engage in further discovery if necessary and permit additional briefing and/or motions addressing the framework set forth in Bruen and noted above. In doing so, the circuit court should consider the interaction of Bruen and the unconstitutional conditions doctrine. See, e.g., Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 59 (2006); Perry v. Sindermann, 408 U.S. 593, 597 (1972); Frost v. Railroad Comm'n of Cal., 271 U.S. 583, 593-94 (1926); Milewski v. Town of Dover, 2017 WI 79, 377 Wis. 2d 38, 899 N.W.2d 303; Madison Tchrs., Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337.
Additionally, upon remand, the circuit court should permit the parties to address whether the form the Laffertys were required to sign in this case as a condition of being foster parents, which specifically prohibits a foster parent from carrying a weapon in the presence of a foster child, constitutes an administrative rule that has not been promulgated through the rulemaking process.
For a similar recent decision by the federal Seventh Circuit Court of Appeals, dealing with an Illinois regulation, see this post. The "unconstitutional conditions" analysis asks whether the government may require people to agree not to exercise their constitutional rights as a condition of participating in a government-run program (such as a foster parenting program). One might view foster parenting, for instance, as being a sort of government employee, and the government does have considerable control over what employees may or may not do on the job; on the other hand, this is an unusual form of government employment where people are "on the job" in their own homes.
