2021 WI 1

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP594-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Leevan Roundtree,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 387 Wis. 2d 685,928 N.W.2d 806

(2019 – unpublished)

OPINION FILED: January 7, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 11, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee 

JUDGE: William S. Pocan & David A. Hansher 

JUSTICES:

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY, 

JJ., joined. DALLET, J., filed a concurring opinion, in which 

ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA GRASSL 

BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a 

dissenting opinion. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by Kaitlin A. Lamb assistant state public defender. There 

was an oral argument by Kaitlin A. Lamb.

For the plaintiff-respondent, there was a brief filed by 

Sarah L. Burgundy ̧ assistant attorney general; with whom on the 

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Sarah L. Burgundy.
2021 WI 1

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP594-CR

(L.C. No. 2015CF4729)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Leevan Roundtree,

 Defendant-Appellant-Petitioner.

FILED

JAN 7, 2021

Sheila T. Reiff

Clerk of Supreme Court

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY, 

JJ., joined. DALLET, J., filed a concurring opinion, in which 

ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REBECCA GRASSL 

BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a 

dissenting opinion.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANN WALSH BRADLEY, J. The petitioner, Leevan 

Roundtree, seeks review of an unpublished per curiam decision of 

the court of appeals affirming his judgment of conviction and 
No. 2018AP594-CR 

2

the denial of his motion for postconviction relief.1 He asserts 

that the felon-in-possession statute under which he was 

convicted is unconstitutional as applied to him. 

¶2 Specifically, Roundtree contends that Wisconsin's 

lifetime firearm ban for all felons is unconstitutional as 

applied to him because his conviction over ten years ago for 

failure to pay child support does not justify such a ban. He 

maintains that the conviction was for a nonviolent felony and 

that no public safety objective is served by preventing him from 

owning a firearm.

¶3 The parties disagree as to the level of scrutiny that 

we should employ to resolve this constitutional challenge. 

Roundtree advances that we should subject the statute to the 

requirements of a strict scrutiny review. The State counters 

that the application of intermediate scrutiny is consistent with 

precedent.

¶4 We determine that Roundtree's challenge to the felonin-possession statute (Wis. Stat. § 941.29(2) (2013-14)2) 

requires the application of an intermediate level of scrutiny. 

 

1 State v. Roundtree, No. 2018AP594-CR, unpublished slip op. 

(Wis. Ct. App. Apr. 4, 2019) (per curiam) (affirming the 

judgment and order of the circuit court for Milwaukee County, 

William S. Pocan and David A. Hansher, Judges).

2 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.

Although Roundtree was convicted pursuant to Wis. Stat. 

§ 941.29(2), that subsection has since been repealed, with the 

substance of the former § 941.29(2) now residing in Wis. Stat. 

§ 941.29(1m) (2017-18). See 2015 Wis. Act 109, §§ 6, 8.
No. 2018AP594-CR 

3

Under such an intermediate scrutiny analysis, we conclude that 

his challenge fails. The statute is constitutional as applied 

to Roundtree because it is substantially related to important 

governmental objectives, namely public safety and the prevention 

of gun violence.

¶5 Accordingly, we affirm the decision of the court of 

appeals.

I

¶6 In 2003, Roundtree was convicted of multiple felony 

counts of failure to support a child for more than 120 days.3 As 

a consequence of these felony convictions, Roundtree was, and 

continues to be, permanently prohibited from possessing a 

firearm.

¶7 Milwaukee police executed a search warrant at 

Roundtree's home on October 30, 2015. Under his mattress, 

officers located a revolver and ammunition. A record check of 

the recovered gun revealed that it had been stolen in Texas. 

Roundtree claimed that "he purchased the firearm from a kid on 

the street about a year ago, but that he did not know it was 

stolen." 

¶8 The State charged Roundtree with a single count of 

possession of a firearm by a felon contrary to Wis. Stat. 

§ 941.29(2). He pleaded guilty and was subsequently sentenced 

to 18 months of initial confinement and 18 months of extended 

supervision.

 

3 See Wis. Stat. § 948.22(2) (2003-04).
No. 2018AP594-CR 

4

¶9 Roundtree moved for postconviction relief, arguing 

that Wis. Stat. § 941.29(2), the felon-in-possession statute, 

was unconstitutional as applied to him. The circuit court held 

the motion in abeyance pending the United States Supreme Court's 

decision in Class v. United States, 138 S. Ct. 798, 803 (2018), 

which determined that a federal criminal defendant does not 

waive a constitutional challenge to the statute of conviction on

direct appeal by entering a guilty plea.4 

¶10 After the issuance of the Class opinion, the circuit 

court ultimately determined that Roundtree waived his 

constitutional challenge by entering a guilty plea. 

Consequently, the circuit court denied Roundtree's motion for 

postconviction relief.5

¶11 Roundtree appealed, and the court of appeals affirmed, 

albeit on different grounds. State v. Roundtree, No. 2018AP594-

CR, unpublished slip op. (Wis. Ct. App. Apr. 4, 2019) (per 

curiam). Instead of resting on the guilty plea waiver rule, the 

court of appeals determined that "regardless of whether 

Roundtree forfeited the constitutional argument by entering a 

guilty plea, . . . the argument fails on its merits." Id., ¶5. 

 

4 The "guilty plea waiver rule" refers to the general rule 

that a guilty, no contest, or Alford plea waives all 

nonjurisdictional defects, including constitutional claims. 

State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 

N.W.2d 886; see North Carolina v. Alford, 400 U.S. 25 (1970). 

5 The order denying the postconviction motion was entered by 

the Honorable David A. Hansher. The Honorable William S. Pocan 

accepted Roundtree's plea and entered the judgment of 

conviction.
No. 2018AP594-CR 

5

By way of explanation on the merits, the court of appeals 

expounded, "Roundtree's notion that his particular nonviolent 

felony matters is incorrect. Rather, it is settled law that the 

firearm ban applies regardless of the defendant's particular 

felony." Id., ¶7. Like the court of appeals, we, too, 

determine that Roundtree's argument fails on its merits, and 

therefore we need not address whether he waived his 

constitutional challenge.6

II

¶12 Roundtree asks us to review whether Wis. Stat. 

§ 941.29(2) is unconstitutional as applied to him. Examining 

the constitutional application of a statute presents a question 

of law that this court reviews independently of the 

determinations rendered by the circuit court or court of 

appeals. State v. McGuire, 2010 WI 91, ¶25, 328 Wis. 2d 289, 

786 N.W.2d 227.

¶13 In our review, we must also determine the appropriate 

level of scrutiny to guide our analysis. This issue likewise 

presents a question of law that we determine independently. See

 

6 Roundtree contends that Wisconsin's use of the guilty plea 

waiver rule was altered by the Court's recent decision in Class

v. United States, 138 S. Ct. 798 (2018). The Class Court 

determined that a guilty plea by itself does not bar a federal 

criminal defendant from challenging the constitutionality of the 

statute of conviction on direct appeal. Id. at 803. Roundtree 

asserts that, like the defendant in Class, he should be allowed 

to challenge the government's power to criminalize his conduct 

in spite of his guilty plea. The State disagrees, arguing that 

Class applies in federal court only and that it does not extend 

to as-applied challenges.
No. 2018AP594-CR 

6

Brandmiller v. Arreola, 199 Wis. 2d 528, 536-37, 540-41, 544 

N.W.2d 894 (1996).

III

¶14 We begin by setting forth Roundtree's argument and 

some necessary background regarding the individual right to bear 

arms. Subsequently, we determine the level of scrutiny under 

which we examine the felon-in-possession statute. Finally, we 

apply the appropriate level of scrutiny.

A

¶15 Roundtree was convicted of possession of a firearm by 

a felon contrary to Wis. Stat. § 941.29(2)(a), which provides 

that a person convicted of a felony in this state "is guilty of 

a Class G felony if he or she possesses a firearm under any of 

the following circumstances . . . ." The circumstance 

applicable here is that "[t]he person possesses a firearm 

subsequent to the conviction for the felony or other crime, as 

specified in sub. (1)(a) or (b)." § 941.29(2)(a).

¶16 This statute, as Roundtree correctly observes, bars a 

person convicted of any felony from firearm possession after 

that conviction without exception, with no time limitation, and 

with no mechanism for restoration of the right to possess a 

firearm. The statute does not draw any distinctions among 

felonies. Those convicted of less serious felonies are banned 

from possessing firearms just as are those convicted of the most 

serious felonies.

¶17 In Roundtree's estimation, this statutory scheme is 

unconstitutional as applied to him. There are two major types 
No. 2018AP594-CR 

7

of constitutional challenges: facial and as-applied. Michels 

v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486. A 

party challenging a law as unconstitutional on its face must 

show that the law cannot be constitutionally enforced under any 

circumstances. Id. (citation omitted). 

¶18 In contrast, in an as-applied challenge, the court 

assesses the merits of the challenge by considering the facts of 

the particular case before it. State v. Wood, 2010 WI 17, ¶13, 

323 Wis. 2d 321, 780 N.W.2d 63. For an as-applied challenge to 

succeed, the challenger must demonstrate that the challenger's 

constitutional rights were actually violated. Id. If such a 

violation occurred, the operation of the law is void as to the 

facts presented for the party asserting the claim. Id. We 

presume that the statute is constitutional, and the party 

raising a constitutional challenge must prove that the 

challenged statute has been applied in an unconstitutional 

manner beyond a reasonable doubt. Id., ¶15. 

¶19 Roundtree's as-applied challenge is based on the 

contention that his conviction for failure to pay child support 

is a nonviolent felony and thus is insufficient to curtail his 

constitutional right to bear arms. He argues that "[d]isarming 

[him] does not in any way advance public safety, but deprives 

him of his right to keep and bear arms for self-defense." As 

this is an as-applied challenge, he must demonstrate that his 

constitutional rights specifically were violated, not that the 

statute is unconstitutional in all applications.
No. 2018AP594-CR 

8

B

¶20 We begin our assessment of Roundtree's claim with some 

background on the right to bear arms. Both the United States 

and Wisconsin Constitutions provide for this right. U.S. Const. 

amend. II; Wis. Const. art. I, § 25.7

¶21 The United States Supreme Court has made clear that 

"[l]ike most rights, the right secured by the Second Amendment 

is not unlimited." District of Columbia v. Heller, 554 U.S. 

570, 626 (2008). The same is true of the right provided by our 

State Constitution. Moran v. DOJ, 2019 WI App 38, ¶48, 388 

Wis. 2d 193, 932 N.W.2d 430. Indeed, the Second Amendment 

secures "the right of law-abiding, responsible citizens to use 

arms in defense of hearth and home." Heller, 554 U.S. at 635.

¶22 In Heller, the Court struck down a regulation barring 

residential handgun possession as contrary to the Second 

Amendment. Id. In doing so, the Court observed "that the 

Second Amendment conferred an individual right to keep and bear 

arms." Id. at 595. It was careful, however, to delineate the 

reach of its analysis: 

[N]othing in our opinion should be taken to cast doubt 

on longstanding prohibitions on the possession of 

firearms by felons and the mentally ill, or laws 

forbidding the carrying of firearms in sensitive 

 

7 The Second Amendment to the United States Constitution 

provides: "A well regulated Militia, being necessary to the 

security of a free State, the right of the people to keep and 

bear Arms, shall not be infringed." Its Wisconsin counterpart, 

art. I, § 25, sets forth: "The people have the right to keep 

and bear arms for security, defense, hunting, recreation or any 

other lawful purpose."
No. 2018AP594-CR 

9

places such as schools and government buildings, or 

laws imposing conditions and qualifications on the 

commercial sale of arms. 

Id. at 626-27. 

¶23 The Court identified such regulations as 

"presumptively lawful," id. at 627 n.26, and reiterated the same 

assessment two years later in McDonald v. City of Chicago, 561 

U.S. 742, 786 (2010) ("We made it clear in Heller that our 

holding did not cast doubt on such longstanding regulatory 

measures as 'prohibitions on the possession of firearms by 

felons and the mentally ill,' 'laws forbidding the carrying of 

firearms in sensitive places such as schools and government 

buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms.' We repeat those assurances here.") 

(internal citations omitted).

¶24 It is the juxtaposition of the United States Supreme 

Court's stated limitations on the Second Amendment individual 

right to bear arms, as well as the felon-in-possession statute's 

presumed lawfulness, that guides our analysis.

IV

A

¶25 With this necessary background in hand, we next 

identify the appropriate level of scrutiny that frames our 

analysis.

¶26 The parties here disagree as to the level of means-end 

scrutiny that should be applied. Roundtree contends that we 

should subject Wis. Stat. § 941.29(2) to strict scrutiny. He 

bases this argument on language in the Seventh Circuit's 
No. 2018AP594-CR 

10

decision in Ezell v. City of Chicago which indicates that "the 

rigor of . . . judicial review will depend on how close the law 

comes to the core of the Second Amendment right and the severity 

of the law's burden on the right." Ezell v. City of Chicago, 

651 F.3d 684, 703 (7th Cir. 2011). Under this framework, 

Roundtree argues that § 941.29(2) severely burdens the core of 

the Second Amendment right because it completely restricts the 

right to bear arms, thus necessitating strict scrutiny review. 

¶27 In order to survive strict scrutiny, a statute must 

be narrowly tailored to advance a compelling state interest. 

Monroe Cnty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶17, 

271 Wis. 2d 51, 678 N.W.2d 831. Strict scrutiny is an exacting 

standard, and it is the rare case in which a law survives it. 

State v. Baron, 2009 WI 58, ¶48, 318 Wis. 2d 60, 769 N.W.2d 34.

¶28 The State disagrees and advocates for the application 

of intermediate scrutiny. In the State's view, such an 

application would be consistent with the language of Heller and 

its interpretation by both the court of appeals of this state 

and the Seventh Circuit. See State v. Pocian, 2012 WI App 58, 

¶11, 341 Wis. 2d 380, 814 N.W.2d 894 (citing United States v. 

Skoien, 614 F.3d 638, 639, 641-42 (7th Cir. 2010) (en banc) ("In 

a case decided after Heller and McDonald, the Seventh Circuit 

Court of Appeals utilized an 'intermediate scrutiny' analysis 

and applied it to a constitutional challenge to a federal law 

prohibiting an individual convicted of misdemeanor domestic 

violence from carrying a firearm in or affecting interstate 

commerce."). Pursuant to an intermediate scrutiny analysis, we 
No. 2018AP594-CR 

11

ask whether a law is substantially related to an important 

governmental objective. Id.

¶29 We agree with the State that intermediate scrutiny is 

the appropriate inquiry to guide our analysis. First, Heller

clearly requires more than mere rational basis review of laws 

that are alleged to burden Second Amendment rights. Heller, 554 

U.S. at 628 n.27. "If all that was required to overcome the 

right to keep and bear arms was a rational basis, the Second 

Amendment would be redundant with the separate constitutional 

prohibitions on irrational laws, and would have no effect." Id. 

¶30 Second, the intermediate scrutiny approach lends 

vitality to the Heller court's statement that felon 

dispossession statutes are "presumptively lawful." Kanter v. 

Barr, 919 F.3d 437, 448 (7th Cir. 2019). To subject a 

"presumptively lawful" statute to strict scrutiny would in 

effect remove the operation of such a presumption. As stated, 

strict scrutiny is a steep hill to climb.

¶31 Our conclusion is consistent with that of other courts 

that have considered the question. Indeed, federal courts 

around the country have interpreted the above-cited language 

from Heller as indicative of requiring an intermediate scrutiny 

analysis when examining Second Amendment challenges. See, e.g., 

Skoien, 614 F.3d at 641-42; Kanter, 919 F.3d at 448; United 

States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010). 

¶32 The Wisconsin Court of Appeals has taken the same 

approach. In both Pocian, 341 Wis. 2d 380, ¶¶11-12, and State 

v. Culver, 2018 WI App 55, ¶37, 384 Wis. 2d 222, 918 N.W.2d 103, 
No. 2018AP594-CR 

12

the court of appeals applied intermediate scrutiny to as-applied 

challenges to the felon-in-possession statute. Support for the 

use of intermediate scrutiny is thus plentiful in the case law 

and accepting Roundtree's position would necessitate overruling 

both Pocian and Culver, which we decline to do.

¶33 In contrast, Roundtree points us to no case in which 

an appellate court has applied strict scrutiny to a Second 

Amendment challenge to a felon-in-possession statute.8 Absent 

any such application of strict scrutiny in Wisconsin or 

elsewhere in this type of case, we decline to break new ground.9 

 

8 We acknowledge that strict scrutiny has been applied to 

related federal statutes, but none of those cases finds purchase 

here. In United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-

32 (D. Utah 2009), the District Court applied strict scrutiny to 

the federal statute prohibiting firearm possession by a person 

convicted of a "misdemeanor crime of domestic violence." See 18 

U.S.C. § 922(g)(9). Similarly, in Tyler v. Hillsdale Cnty. 

Sheriff's Dep't, 775 F.3d 308, 328-29 (6th Cir. 2014), reh'g en 

banc granted, opinion vacated (Apr. 21, 2015), the Sixth Circuit 

applied strict scrutiny to 18 U.S.C. § 922(g)(4)'s dispossession 

of a person "who has been committed to a mental institution."

Tyler largely based its application of strict scrutiny on 

citation to separate writings in other cases, and in any event 

the opinion has been vacated. Id. at 328-29. Likewise, 

Engstrum is of little value here because the restriction it 

addressed was based on a misdemeanor, not a felony.

9 Justice Rebecca Grassl Bradley's dissent would apply 

strict scrutiny, citing this court's decision in Mayo v. 

Wisconsin Injured Patients and Families Compensation Fund, 2018 

WI 78, ¶28, 383 Wis. 2d 1, 914 N.W.2d 678. Justice Rebecca 

Grassl Bradley's dissent, ¶¶73-74. However, Mayo is 

inapplicable here.
No. 2018AP594-CR 

13

¶34 We are likewise unpersuaded by the argument Roundtree 

makes pursuant to the Seventh Circuit's decision in Ezell, 651 

 

In Mayo, an equal protection case regarding the 

constitutionality of medical malpractice damage caps, the 

majority of the court overruled the "rational basis with teeth" 

standard from Ferdon ex rel. Petrucelli v. Wisconsin Patients 

Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. 

Mayo, 383 Wis. 2d 1, ¶32. The "rational basis with teeth" 

standard from Ferdon, although similar, is different from 

intermediate scrutiny. 

The Ferdon court set forth that "rational basis with teeth" 

"focuses on the legislative means used to achieve the ends. 

This standard simply requires the court to conduct an inquiry to 

determine whether the legislation has more than a speculative 

tendency as the means for furthering a valid legislative 

purpose." Ferdon, 284 Wis. 2d 573, ¶78. Intermediate scrutiny, 

on the other hand, asks whether a law is "substantially related 

to an important governmental objective." State v. Pocian, 2012 

WI App 58, ¶11, 341 Wis. 2d 380, 814 N.W.2d 894 (citation 

omitted). 

Importantly, the Ferdon court explicitly disclaimed that it 

was applying intermediate scrutiny. It stated that rational 

basis was the "appropriate level of scrutiny in the present 

case," clearly evidencing a distinction between intermediate 

scrutiny and "rational basis with teeth." See Ferdon, 284 

Wis. 2d 573, ¶¶63-65.

Further, the Mayo court specifically stated that it was 

addressing levels of scrutiny for equal protection challenges. 

Mayo, 383 Wis. 2d 1, ¶28. Roundtree's challenge is not based on 

the equal protection clause, but on a purported abridgement of 

his Second Amendment rights. 

The intermediate scrutiny standard thus is well established 

and retains vitality. In 1996, a unanimous court first adopted 

and applied the intermediate scrutiny analysis in a challenge to 

a cruising ordinance as violative of the constitutional right to 

travel. See Brandmiller v. Arreola, 199 Wis. 2d 528, 540-41, 

544 N.W.2d 894 (1996). More recently, in State v. Culver, 2018 

WI App 55, ¶37, 384 Wis. 2d 222, 918 N.W.2d 103, the court of 

appeals, post-Mayo, addressed the same question at issue here 

and applied intermediate scrutiny. 
No. 2018AP594-CR 

14

F.3d 684. He bases this argument on the Ezell court's statement 

that "the rigor of . . . judicial review will depend on how 

close the law comes to the core of the Second Amendment right 

and the severity of the law's burden on the right." Id. at 703. 

In Roundtree's view, the felon-in-possession statute implicates 

the core Second Amendment right and severely burdens such a 

right, necessitating the most rigorous level of scrutiny.

¶35 However, this argument rests on a faulty premise. As 

the Seventh Circuit explained in Kanter, less than strict 

scrutiny review is appropriate here because "the weight of the 

historical evidence . . . suggests that felon dispossession laws 

do not restrict the 'core right of armed defense,' but rather 

burden 'activity lying closer to the margins of the right.'" 

Kanter, 919 F.3d at 448 n.10. Instead, the core right 

identified in Heller is "the right of a law-abiding, responsible 

citizen to possess and carry a weapon for self-defense . . . ." 

United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) 

(emphasis removed). 

¶36 Like the Seventh Circuit in Kanter, we need not 

conclusively determine the scope of the historical protections 

of the Second Amendment. Kanter, 919 F.3d at 447; see infra, 

¶41. But also like the Seventh Circuit in Kanter, we are not 

persuaded that the core Second Amendment right is implicated so 

as to require strict scrutiny review.
No. 2018AP594-CR 

15

¶37 Accordingly, we determine that Roundtree's challenge 

to Wis. Stat. § 941.29(2) requires the application of an 

intermediate level of scrutiny.10 

B

¶38 We next apply intermediate scrutiny to the felon-inpossession statute considering the facts of this case.

¶39 Generally, Second Amendment challenges require this 

court to undertake a two-step approach. State v. Herrmann, 2015 

WI App 97, ¶9, 366 Wis. 2d 312, 873 N.W.2d 257. We ask first 

"whether the challenged law imposes a burden on conduct falling 

within the scope of the Second Amendment's guarantee." Id.

(quoting Marzzarella, 614 F.3d at 89). If the answer is no, 

then the inquiry ends. Id. 

¶40 If the first inquiry is answered in the affirmative, 

then the court proceeds to inquire into "the strength of the 

government's justification for restricting or regulating the 

exercise of Second Amendment rights." Id. (quoting Ezell, 651 

F.3d at 703).

 

10 We observe that defendants around the country who raise 

as-applied challenges to felon-in-possession statutes will face 

an uphill climb. See Pocian, 341 Wis. 2d 380, ¶12 (explaining 

that as of the writing of that opinion, "[n]o state law banning 

felons from possessing guns has ever been struck down").

Of those federal circuits that have not foreclosed such 

challenges entirely, only one has ever upheld an as-applied 

Second Amendment challenge to the federal statute banning 

firearm possession by certain individuals convicted of crimes. 

See Binderup v. Att'y Gen. U.S., 836 F.3d 336 (3d Cir. 2016); 18 

U.S.C. § 922(g); see also Kanter v. Barr, 919 F.3d 437, 442-44 

(7th Cir. 2019). 
No. 2018AP594-CR 

16

¶41 The Seventh Circuit has described the historical 

evidence as to whether felons were categorically excluded from 

the Second Amendment's scope as "inconclusive." Kanter, 919 

F.3d at 445. Accordingly, when faced with an as-applied 

challenge to the federal felon-in-possession statute, the court 

declined to resolve the first step of the inquiry and instead 

relied on the dispositive second step——the application of a 

means-end scrutiny analysis. Id. at 447. We take a similar 

approach here.

¶42 Like the court in Kanter, we assume that the felon-inpossession statute burdens conduct falling within the scope of 

the Second Amendment's guarantee in order to reach the 

dispositive issue. Our inquiry, then, focuses on whether the 

statute at issue is substantially related to an important 

governmental objective.

¶43 As other courts in this state and elsewhere have done, 

we recognize public safety generally, and preventing gun 

violence specifically, as important governmental objectives. 

See Pocian, 341 Wis. 2d 380, ¶15; Kanter, 919 F.3d at 448. 

Indeed, "[p]ublic safety and the protection of human life is a 

state interest of the highest order." State v. Miller, 196 

Wis. 2d 238, 249, 538 N.W.2d 573 (Ct. App. 1995). 

¶44 Roundtree protests that he should not be prohibited 

from firearm possession because his felony conviction did not 

involve violence. He claims that the nature of his conviction 

and the fact that it is remote in time weigh in favor of a 
No. 2018AP594-CR 

17

determination that Wis. Stat. § 941.29(2) is unconstitutional as 

applied to him.

¶45 We are not persuaded that the specific facts of 

Roundtree's case compel such a conclusion. Roundtree was 

convicted of failure to support a child for over 120 days. In 

his view, this is different in kind from the crime at issue in 

Pocian, where the defendant was convicted of uttering a forgery 

as the underlying felony. Put frankly, he suggests that failing 

to pay child support is not as bad as "physically taking a 

victim's property." 

¶46 But failure to pay child support is every bit as 

serious as uttering a forgery if not more so. Those who fail to 

make support payments deprive the very people they should be 

protecting most, their own children, from receiving basic 

necessities. Roundtree chose to keep money for himself that 

rightly belonged to his children. And, to further add to the 

egregiousness of his offense, he committed this crime repeatedly 

by failing to support for at least 120 days. By all accounts 

this is a serious offense.

¶47 Simply because his crime was not physically violent in 

nature, it does not follow that the felon-in-possession statute 

cannot be constitutionally applied to Roundtree. The Seventh 

Circuit determined as much in Kanter when it concluded that "the 

government has shown that prohibiting even nonviolent felons 

like Kanter from possessing firearms is substantially related to 

its interest in preventing gun violence." Kanter, 919 F.3d at 
No. 2018AP594-CR 

18

448. The legislature did not in Wis. Stat. § 941.29(2) create a 

hierarchy of felonies, and neither will this court. 

¶48 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." United States v. Yancey, 621 F.3d 681, 685 (7th Cir. 

2010). 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. 

¶49 The State has cited an abundance of research to 

support this conclusion. "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." Kaemmerling 

v. Lappin, 553 F.3d 669, 683 (D.C. Cir. 2008) (citing Ewing v. 

California, 538 U.S. 11, 26 (2003)).

¶50 As the Kanter court noted, several studies "have found 

a connection between nonviolent offenders . . . and a risk of 

future violent crime." Kanter, 919 F.3d at 449.

For example, one study of 210,886 nonviolent offenders 

found that about one in five were rearrested for a 

violent crime within three years of his or her 

release. See U.S. Dep't of Justice, Bureau of Justice 
No. 2018AP594-CR 

19

Statistics Profile of Nonviolent Offenders Exiting 

State Prisons 2, 4 (2004). A separate study found 

that 28.5 percent of nonviolent property offenders——a 

category that includes fraud convictions——were 

rearrested for a violent offense within five years of 

their release. See Matthew R. Durose, et al., U.S. 

Dep't of Justice, Bureau of Justice Statistics, 

Recidivism of Prisoner Released in 30 States in 2005: 

Patterns from 2005 to 2010, at 9 (2014). Yet another 

study found that "even handgun purchasers with only 1 

prior misdemeanor conviction and no convictions for 

offenses involving firearms or violence were nearly 5 

times as likely as those with no prior criminal 

history to be charged with new offenses involving 

firearms or violence." Garen J. Wintemute, et al., 

Prior Misdemeanor Convictions as a Risk Factor for 

Later Violent and Firearm-Related Criminal Activity 

Among Authorized Purchasers of Handguns, 280 J. Am. 

Med. Ass'n 2083, 2083 (1998) (emphasis added).

Id.

¶51 Such assertions are echoed by data from the Wisconsin 

Department of Corrections (DOC). For example, DOC data indicate 

that among recidivists who committed public order offenses, such 

as failure to pay child support, and were released from prison 

in 2011, 21.4 percent recidivated with a violent offense. 

Joseph R. Tatar II & Megan Jones, Recidivism after Release from 

Prison, Wis. Dep't of Corrections, at 14 (August 2016), 

https://doc.wi.gov/DataResearch/InteractiveDashboards/Recidivism

AfterReleaseFromPrison_2.pdf. As the State strikingly observes 

in its brief, "the 21.4 percent rate of public order offenders 

recidivating with a violent crime was higher than that of 

property offenders (16 percent) and drug offenders (17.9 

percent). And it was just seven percentage points lower than 

the rate of violent offenders (28.3 percent)." This data is 

surely sufficient to support a substantial relation between 
No. 2018AP594-CR 

20

keeping firearms out of the hands of those convicted of 

nonviolent felonies and the public safety objective of 

preventing gun violence.

¶52 Further, the fact that Roundtree's conviction occurred 

over ten years ago does not affect the result. Roundtree 

asserts that he poses no danger to public safety and should be 

able to possess a firearm as a result. However, the record 

indicates that the gun Roundtree possessed was stolen and 

purchased off the street. Supporting street level gun commerce 

is hardly the benign action Roundtree would have us believe it 

is.

¶53 In sum, we determine that Roundtree's challenge to the 

felon-in-possession statute (Wis. Stat. § 941.29(2)) requires 

the application of an intermediate level of scrutiny. Under 

such an intermediate scrutiny analysis, we conclude that the 

felon-in-possession statute is constitutional as applied to 

Roundtree because the statute in question is substantially 

related to important governmental objectives, namely public 

safety and the prevention of gun violence.

¶54 Accordingly, we affirm the decision of the court of 

appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2018AP594-CR.rfd

1

¶55 REBECCA FRANK DALLET, J. (concurring). I write 

separately to address the unanswered question of whether by 

pleading guilty Roundtree waived his as-applied challenge to the 

constitutionality of Wis. Stat. § 941.29(2). I conclude that, 

following Class v. United States, 583 U.S. ___, 138 S. Ct. 798 

(2018), he did not.

¶56 Generally, a defendant who pleads guilty with the 

assistance of reasonably competent counsel waives his right to 

later raise an independent claim related to a deprivation of his 

constitutional rights that occurred prior to his pleading 

guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). 

The rationale behind this "guilty-plea-waiver rule" is that a 

counseled guilty plea admits "all of the factual and legal 

elements necessary to sustain a binding, final judgment of guilt 

and a lawful sentence." United States v. Broce, 488 

U.S. 563, 569 (1989).1

¶57 In order to balance efficient judicial administration 

with the rights protected by the United States Constitution, the 

United States Supreme Court has developed exceptions to the 

guilty-plea-waiver rule for claims that implicate the State's 

very power to prosecute the defendant, provided that a court can 

resolve those claims without venturing beyond the record. See

id. at 574-76; Menna v. New York, 423 U.S. 61, 63 n.2 (1975) 

 

1 We have interpreted this rule, like other waiver rules, to 

be one of judicial administration that does not deprive an 

appellate court of jurisdiction. See State v. Riekoff, 112 

Wis. 2d 119, 123-24, 332 N.W.2d 744 (1983).
No. 2018AP594-CR.rfd

2

(per curiam) (guilty plea did not waive a constitutional 

challenge under the Double Jeopardy Clause when the claim could 

be resolved on the existing record); see also Blackledge v. 

Perry, 417 U.S. 21, 30-31 (1974) (guilty plea did not foreclose 

a defendant's habeas petition alleging "unconstitutional 

vindictive prosecution" because the Due Process Clause precluded 

the State from even prosecuting the defendant).

¶58 Although the guilty-plea-waiver rule arose in the 

federal context, this court has steadfastly adopted that 

precedent. See, e.g., State v. Kelty, 2006 WI 101, ¶42, 294 

Wis. 2d 62, 716 N.W.2d 886; Hawkins v. State, 26 

Wis. 2d 443, 448, 132 N.W.2d 545 (1965). Wisconsin courts have 

broadened the federal exceptions, recognizing that a guilty plea 

does not waive facial challenges to the constitutionality of the 

statute of conviction. See, e.g., State v. Molitor, 210 

Wis. 2d 415, 419 n.2, 565 N.W.2d 248 (Ct. App. 1997). This 

court, however, has not yet extended that exception to asapplied constitutional challenges. See State v. Cole, 2003 

WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328; State v. 

Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 

N.W.2d 891. But following Class, the application of the guiltyplea-waiver rule should no longer depend upon whether an appeal 

challenging the constitutionality of a statute is classified as 

facial or as-applied.

¶59 In Class, the United States Supreme Court applied an 

exception to the guilty-plea-waiver rule to allow a defendant to 

challenge the constitutionality of the statute of conviction on 
No. 2018AP594-CR.rfd

3

appeal. 138 S. Ct. at 803-05. Class pleaded guilty to 

unlawfully carrying a firearm on U.S. Capitol grounds, contrary 

to 40 U.S.C. § 5104(e)(1), after the police had found three guns 

in his car in a Capitol parking lot. On appeal, Class argued 

that the statute violated his due-process rights since he did 

not have fair notice that a parking lot was part of the Capitol 

"grounds." Id. at 802. Class also claimed that the statute 

violated his Second Amendment rights because "Capitol Grounds" 

included so broad an area that it was practically impossible to 

lawfully carry a firearm anywhere within the District of 

Columbia. Id. In allowing both claims to proceed, the Court 

rested its decision on its 150-year-old understanding of the 

nature of a guilty plea:

The plea of guilty is, of course, a confession of all 

the facts charged in the indictment, and also of the 

evil intent imputed to the defendant. It is a waiver 

also of all merely technical and formal objections of 

which the defendant could have availed himself by any 

other plea or motion. But if the facts alleged and 

admitted do not constitute a crime against the laws of 

the Commonwealth, the defendant is entitled to be 

discharged.

Id. at 804 (quoting Commonwealth v. Hinds, 101 Mass. 209, 210 

(1869)). The Court held that Class's guilty plea did not waive 

his claims challenging the constitutionality of the statute of 

conviction because those claims involved the State's ability to 

constitutionally prosecute Class and did not contradict the 

terms of the indictment or the written plea agreement. Id.

at 805.

¶60 Given the Court's analysis in Class, there is no 

justification for continuing to treat as-applied challenges to 
No. 2018AP594-CR.rfd

4

the constitutionality of the statute of conviction any 

differently than facial challenges. After all, Class did not 

hinge on the type of constitutional challenge being raised. See

United States v. Alarcon Sanchez, 972 F.3d 156, 166 n.3 (2d 

Cir. 2020) ("Pursuant to the holding in Class, defendants have a 

right to raise on appeal both as-applied and facial 

constitutional challenges to the [statute of conviction]."). 

Indeed, when addressing the merits of Class's challenges on 

remand, the D.C. Circuit Court of Appeals treated both of his 

claims as as-applied challenges. See United States v. 

Class, 930 F.3d 460 (D.C. Cir. 2019). But see State v. 

Jackson, 2020 WI App 4, ¶¶8-9, 390 Wis. 2d 402, 938 N.W.2d 639 

(noting that it was "not clear . . . whether Class'[s] challenge 

was an as-applied or facial challenge"). Second, and more 

importantly, the Court's reasoning in Class must apply equally 

to facial and as-applied challenges because both types of 

challenges "call into question the Government's power to 

'constitutionally prosecute'" the defendant. Class, 138 S. Ct. 

at 805 (quoting Broce, 488 U.S. at 575) (adding that whether a 

constitutional challenge can be classified as "jurisdictional" 

is also not dispositive).

¶61 This court should therefore adopt the holding in 

Class, not only to remain consistent with United States Supreme 

Court precedent but also to continue to strike the proper 

balance between efficient judicial administration and the 

protection of a defendant's constitutional rights. See

Kelty, 294 Wis. 2d 62, ¶27. It should be the law in Wisconsin 
No. 2018AP594-CR.rfd

5

that a guilty plea does not waive a defendant's right to 

challenge the statute of conviction's constitutionality, 

facially or as applied, provided the challenge can be resolved 

without contradicting the record. We should withdraw language 

from Cole and Trochinski and clarify the court of appeals' 

holding in Jackson to the extent that those decisions hold that 

a defendant who pleads guilty waives his right to later raise an 

as-applied constitutional challenge to the statute of 

conviction.2

¶62 For the foregoing reasons, I respectfully concur.

¶63 I am authorized to state that Justices ANN WALSH 

BRADLEY and JILL J. KAROFSKY joins this concurrence.

 

2 See State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 

N.W.2d 328; State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 

Wis. 2d 38, 644 N.W.2d 891; State v. Jackson, 2020 WI App 4, 

¶¶8-9, 390 Wis. 2d 402, 938 N.W.2d 639.
No. 2018AP594-CR.rgb

1

¶64 REBECCA GRASSL BRADLEY, J. (dissenting). The Second 

Amendment provides:

A well regulated Militia, being necessary to the 

security of a free State, the right of the people to 

keep and bear Arms, shall not be infringed.

U.S. Const. amend. II. St. George Tucker, a pre-eminent 

constitutional law scholar during the founding era, described 

the Second Amendment as "the true palladium of liberty . . . . 

The right of self defence is the first law of nature: in most 

governments it has been the study of rulers to confine this 

right within the narrowest limits possible. Wherever standing 

armies are kept up, and the right of the people to keep and bear 

arms is, under any colour or pretext whatsoever, prohibited, 

liberty, if not already annihilated, is on the brink of 

destruction." St. George Tucker, Blackstone's Commentaries 1:

App. 300 (1803). In plainer words, the Second Amendment is the 

people's ultimate protection against tyranny.

¶65 Applying the original public meaning of this bulwark 

of liberty, the United States Supreme Court more than a decade 

ago finally dispelled the prevalent, but historically ignorant 

notion that the Second Amendment protects merely a collective, 

militia member's right. The Supreme Court declared the right to 

keep and bear arms is "exercised individually and belongs to all 

Americans"; accordingly, "the District [of Columbia]'s ban on 

handgun possession in the home violates the Second 

Amendment . . . ." District of Columbia v. Heller, 554 U.S. 

570, 581, 635 (2008) (emphasis added). See also Letter from 

Thomas Jefferson to James Madison (Dec. 20, 1787), in The Papers 
No. 2018AP594-CR.rgb

2

of Thomas Jefferson, XII, 438-40 (Julian Boyd ed., 1950) ("Let 

me add that a bill of rights is what the people are entitled to 

against every government on earth, general or particular, [and] 

what no just government should refuse or rest on inference.")

(emphasis added). Any encroachment upon this fundamental right 

must withstand strict judicial scrutiny. Wisconsin Carry, Inc. 

v. City of Madison, 2017 WI 19, ¶9, 373 Wis. 2d 543, 892 N.W.2d 

233 (declaring the right to keep and bear arms to be "a species 

of right we denominate as 'fundamental'"); Mayo v. Wisconsin 

Injured Patients & Families Comp. Fund, 2018 WI 78, ¶28, 383 

Wis. 2d 1, 914 N.W.2d 678 ("Strict scrutiny is applied to 

statutes that restrict a fundamental right.").

¶66 Ignoring conclusive historical evidence to the 

contrary, the majority upholds the constitutionality of 

Wisconsin's categorical ban on the possession of firearms by any 

person convicted of a felony offense,1 regardless of whether that 

individual is dangerous. Under the majority's vision of what is 

good for society, "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 . . . break the law." Majority op., ¶48 

(emphasis added). It may be "reasonable" to the majority but it 

surely isn't constitutional. "The very enumeration of the right 

takes out of the hands of government——even the Third Branch of 

Government——the power to decide on a case-by-case basis whether 

the right is really worth insisting upon. A constitutional 

 

1 See Wis. Stat. § 941.29(1m).
No. 2018AP594-CR.rgb

3

guarantee subject to future judges' assessments of its 

usefulness is no constitutional guarantee at all." Heller, 554 

U.S. at 634 (emphasis in original). Centuries of history warned 

the Founders that governments certainly wanted to keep arms out 

of the hands of the citizenry in order to ease the establishment 

of tyranny——and they often succeeded. It is for this very 

reason that the Framers insisted on preserving the individual 

right to keep and bear arms for all Americans.

¶67 Under Wis. Stat. § 941.29(1m), the State deprives 

Leevan Roundtree of his fundamental constitutional right to keep 

and bear arms, based solely on his failure to pay child support 

more than ten years ago, with no showing that he poses a danger 

to society. Applying the wrong standard of review, the majority 

sidelines the United States Constitution, demotes the Second 

Amendment to second-class status,2 and endorses a blanket ban on 

one of our most fundamental constitutional liberties. In doing 

so, the majority contravenes the original public meaning of the 

Second Amendment. I dissent.

I

¶68 The Constitution takes precedence over any statute, 

and any statute in conflict with the Constitution cannot stand. 

"The [C]onstitution is either a superior, paramount law, 

unchangeable by ordinary means, or it is on a level with 

 

2 See McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) 

("[R]espondents, in effect, ask us to treat the right recognized 

in Heller as a second-class right, subject to an entirely 

different body of rules than the other Bill of Rights guarantees 

that we have held to be incorporated into the Due Process 

Clause.").
No. 2018AP594-CR.rgb

4

ordinary legislative acts, and, like other acts, is alterable 

when the legislature shall please to alter it. If the former 

part of the alternative be true, then a legislative act contrary 

to the [C]onstitution is not law; if the latter part be true, 

then written [C]onstitutions are absurd attempts on the part of 

the people to limit a power in its own nature illimitable." 

Marbury v. Madison, 5 U.S. 137, 177 (1803). Bearing in mind 

that the Second Amendment protects the "first law of nature"——

the right to defend oneself——any infringement of the right must 

be concordant with the Constitution and may replicate only those 

restrictions society accepted at the founding. Permitting 

restraints on the right to keep and bear arms that were never 

contemplated by the Framers lends an illimitable quality to the 

legislative power to regulate a fundamental right, thereby 

deflating the primacy of the Constitution and imperiling the 

liberty of the people.

¶69 Wisconsin Stat. § 941.29(1m) bans all felons from 

possessing a firearm in this state: "[a] person who possesses a 

firearm is guilty of a Class G felony if any of the following 

applies: (a) [t]he person has been convicted of a felony in 

this state, [or] (b) [t]he person has been convicted of a crime 

elsewhere that would be a felony if committed in this state." 

This felon dispossession statute draws no distinction between an 

individual convicted of first-degree homicide and someone 

convicted of "failing to comply with any record-keeping 

requirement for fish" (a felony in this state). Wis. Stat. 

§ 29.971(1)(c). Rather than the historically recognized 
No. 2018AP594-CR.rgb

5

revocation of Second Amendment rights predicated on an 

individual's dangerousness to society, the Wisconsin Legislature 

instead rescinds those rights based merely on a felony 

conviction, irrationally preserving the right to keep and bear 

arms for both violent and dangerous citizens.

¶70 In 2003, Roundtree failed to pay child support for 

more than 120 consecutive days, resulting in his conviction for 

a felony under Wis. Stat. § 948.22(2). Roundtree was sentenced 

to four years of probation and later paid his past due child 

support. Nearly 13 years later, while executing a search 

warrant on Roundtree's property, the police found a handgun 

tucked beneath his mattress. The State charged Roundtree with 

violating Wis. Stat. § 941.29(1m).3 The majority concludes that 

Roundtree's felony conviction for failure to timely pay child 

support more than a decade earlier permanently forecloses his 

individual Second Amendment rights. Although the United States 

Supreme Court has never opined on the constitutionality of felon 

dispossession laws, the majority reflexively follows federal 

jurisdictions in upholding these laws, neglecting (as other 

courts have) to conduct the historical analysis necessary to 

ascertain the original public meaning of the Second Amendment in 

this regard.

¶71 Troublingly, the majority applies intermediate 

scrutiny to a statute that demands strict scrutiny review, while 

 

3 Roundtree was actually convicted under Wis. Stat. 

§ 941.29(2), but sub. (2) was subsequently repealed and replaced 

with Wis. Stat. § 941.29(1m). For consistency and to avoid 

confusion, I use sub. (1m) throughout.
No. 2018AP594-CR.rgb

6

declining to discern whether the people who ratified the Bill of 

Rights consented to the removal of the Second Amendment right 

from non-violent felons. While legislatures have always had the 

power to prohibit people who are dangerous from possessing 

firearms, the Second Amendment does not countenance collectively 

depriving all felons of their individual Second Amendment 

rights. Such laws sweep too broadly, disarming those who pose 

no danger to society. And if the professed purpose of felon 

dispossession laws is "public safety and the prevention of gun 

violence" as the majority describes,4 then Wisconsin's lawmakers 

need to adjust their aim; Wis. Stat. § 941.29(1m) leaves violent 

misdemeanants free to keep and bear arms.

¶72 Since the founding of our nation, Americans have 

understood their right to keep and bear arms as fundamental to 

the people's self-preservation and defense. Heller, 554 U.S. at 

593-94 ("By the time of the founding, the right to have arms had 

become fundamental for English subjects," citing Blackstone's 

description of "the right of having and using arms for selfpreservation and defence"). In Wisconsin Carry, this court 

expressly recognized the right to keep and bear arms to be "a 

species of right we denominate as 'fundamental,' reflecting our 

understanding that it finds its protection, but not its source, 

in our constitutions." 373 Wis. 2d 543, ¶9 (citations omitted). 

During the ratifying conventions, "there was broad consensus 

between Federalists and their opponents on the existence and 

nature of the 'natural right' to keep and bear arms for 

 

4 Majority op., ¶4.
No. 2018AP594-CR.rgb

7

defensive purposes." Binderup v. Atty. Gen. U.S. of America, 

836 F.3d 336, 367 (3d Cir. 2016) (Hardiman, J., concurring). 

Although we expound only the Second Amendment in this case, this 

court has also deemed the people's right to keep and bear arms 

protected under the Wisconsin Constitution5 to be a fundamental 

right. State v. Cole, 2003 WI 112, ¶20, 264 Wis. 2d 520, 665 

N.W.2d 328 ("We find that the state constitutional right to bear 

arms is fundamental."). Because Wis. Stat. § 941.29(1m) 

restricts a fundamental right that predates and is "independent 

of" the Constitution entirely, Wisconsin Carry, 373 Wis. 2d 543, 

¶9, strict scrutiny must apply.

¶73 Inexplicably, but quite conveniently, the majority 

opinion never mentions Wisconsin Carry, nor does it even utter 

the word "fundamental." When a challenged statute impairs a 

fundamental right, this court must apply a heightened level of 

scrutiny. Very recently, this court articulated that "[s]trict 

scrutiny is applied to statutes that restrict a fundamental 

right." Mayo, 383 Wis. 2d 1, ¶28. Not only does the majority

disregard the nature of the right to keep and bear arms, it also 

fails to apply Mayo, which hardly imposed a novel approach to 

examining laws restricting fundamental rights. Strict scrutiny 

has never been limited to equal protection challenges. We 

recently reiterated that "[a] statute which directly and 

substantially infringes upon a fundamental liberty interest must 

withstand strict scrutiny: it must be narrowly tailored to 

 

5 See Article 1, Section 25 of the Wisconsin Constitution: 

"The people have the right to keep and bear arms for security, 

defense, hunting, recreation or any other lawful purpose."
No. 2018AP594-CR.rgb

8

serve a compelling state interest." Matter of Visitation of 

A.A.L., 2019 WI 57, ¶18, 387 Wis. 2d 1, 927 N.W.2d 486. See 

also Burson v. Freeman, 504 U.S. 191, 199 (1992); Reno v. 

Flores, 507 U.S. 292, 301-02 (1993). Strict scrutiny applies 

"when a statute impinges on a 'fundamental right' or creates a 

classification that 'operates to the peculiar disadvantage of a 

suspect class.'" Metropolitan Associates v. City of Milwaukee, 

2011 WI 20, ¶60 n.20, 332 Wis. 2d 857, 96 N.W.2d 717 (emphasis 

added). In Larson v. Burmaster, 2006 WI App 142, ¶42, 295 

Wis. 2d 333, 720 N.W.2d 134, the Wisconsin Court of Appeals held 

that "strict scrutiny is applied" when a "fundamental 

constitutional right is violated."

¶74 Without explanation, the majority altogether ignores 

its holding in Wisconsin Carry and refuses to apply Mayo, two 

cases we recently decided. The majority threatens every 

Wisconsin citizen's right to keep and bear arms by failing to 

acknowledge the right as fundamental and accordingly using the 

wrong level of review. In electing to apply an intermediate 

level of scrutiny, the majority misconstrues the nature of the 

infringement of Roundtree's Second Amendment right. Its error 

stems from mischaracterizing the person who seeks to exercise 

his Second Amendment right as an "activity lying closer to the 

margins of the right." Majority op., ¶35 (emphasis added) 

(citing Kanter v. Barr, 919 F.3d 437, 448 n.10 (7th Cir. 2019)). 

Of course, a person is not an "activity" and in this case, 

Roundtree wishes to exercise what Heller pronounced to be the 

"core lawful purpose of armed defense," which the State of 
No. 2018AP594-CR.rgb

9

Wisconsin totally denies him. 554 U.S. at 630. "[A] lifetime 

ban on any felon possessing any firearm" undoubtedly "does 

impair the 'core conduct' of self-defense in the home——at least 

for a felon who has completed his sentence, or someone who 

shares his household." C. Kevin Marshall, Why Can't Martha 

Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 697 (2009). 

Such "broadly prohibitory laws restricting the core Second 

Amendment right . . . are categorically unconstitutional." 

Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011). 

Roundtree's core right to possess a firearm in his own home is 

not merely restricted, it is extinguished. This alone warrants 

strict scrutiny.

¶75 Ultimately, the level of scrutiny applied is not 

dispositive; Wis. Stat. § 941.29(1m) fails under either level of 

review. More importantly, the statute is inconsistent with the 

historical understanding of the scope of the Second Amendment 

right and who possesses it. For this reason, Heller declined to 

adopt a particular level of scrutiny.6 The Supreme Court 

expressed only that "'rational basis' . . . could not be used to 

evaluate the extent to which a legislature may regulate a 

 

6 District of Columbia v. Heller, 554 U.S. 570, 581, 628 

(2008). See also State v. Sieyes, 225 P.3d 995, ¶34 (Wash. 

2010) ("We follow Heller in declining to analyze [Washington's 

statute restricting the rights of children to keep and bear 

arms] under any level of scrutiny. Instead we look to the 

Second Amendment's original meaning, the traditional 

understanding of the right, and the burden imposed on children 

by upholding the statute. See generally Eugene Volokh, 

Implementing the Right to Keep and Bear Arms for Self-Defense: 

An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 

1443, 1449 (2009).").
No. 2018AP594-CR.rgb

10

specific, enumerated right" such as "the right to keep and bear 

arms." Heller, 554 U.S. at 628 n.27 ("If all that was required 

to overcome the right to keep and bear arms was a rational 

basis, the Second Amendment would . . . have no effect."). If 

anything, Heller signals that courts should approach challenges 

to statutes infringing the Second Amendment right with a 

rigorous review of history, rather than the inherently 

subjective consideration of whether the government's interest in 

curtailing the right outweighs the individual's interest in 

exercising it. "As to the ban on handguns[,] . . . the Supreme 

Court in Heller never asked whether the law was narrowly 

tailored to serve a compelling government interest (strict 

scrutiny) or substantially related to an important government 

interest (intermediate scrutiny). If the Supreme Court had 

meant to adopt one of those tests, it could have said so in 

Heller and measured D.C.'s handgun ban against the relevant 

standard. But the Court did not do so; it instead determined 

that handguns had not traditionally been banned and were in 

common use——and thus that D.C.'s handgun ban was 

unconstitutional." Heller v. District of Columbia, 670 F.3d 

1244, 1273 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). The 

majority in this case should have conducted the historical 

analysis necessary to determine whether felons were 

traditionally dispossessed of their weapons. They weren't, 

unless they were dangerous to society. Accordingly, Wisconsin's 

categorical dispossession of all felons irrespective of whether 

they pose a danger to the public is unconstitutional.
No. 2018AP594-CR.rgb

11

¶76 Although the United States Supreme Court has declined 

to pronounce the appropriate level of review for statutes 

burdening the fundamental right to keep and bear arms in favor 

of discerning the traditional understanding of the Second 

Amendment, this court (as it must) has recognized the right to 

keep and bear arms to be fundamental, and this court has 

declared strict scrutiny to be the appropriate level of scrutiny 

"applied to statutes that restrict a fundamental right." Mayo, 

383 Wis. 2d 1, ¶28. At the very least, the majority should 

explain why it now subordinates the fundamental, constitutional 

right to keep and bear arms.

II

¶77 Statutes subject to strict scrutiny rarely survive. 

Burson v. Freeman, 504 U.S. 191, 211 (1992) ("[I]t is the rare 

case in which we have held that a law survives strict 

scrutiny."). In order to survive, "a statute must serve a 

compelling state interest[,] . . . be necessary to serving that 

interest[,] and . . . be narrowly tailored toward furthering 

that compelling state interest." Mayo, 383 Wis. 2d 1, ¶28. 

Historically, laws that dispossessed the violent served the 

compelling state interest in public safety. Wisconsin's felon 

dispossession law, however, ensnares the non-violent, thereby 

detaching itself from the statute's ostensible purpose.

¶78 Even assuming Wisconsin's felon dispossession statute 

serves the unquestionably compelling state interest in public 
No. 2018AP594-CR.rgb

12

safety,7 the statute is not "narrowly tailored" toward advancing 

that interest because it applies to any individual convicted of 

a felony offense, even if that person poses no danger to 

society. For example: "One man beats his wife, harming her 

physically and emotionally and traumatizing their children who 

witness the assault. He may, however, only have committed 

battery, a misdemeanor." State v. Thomas, 2004 WI App 115, 

¶47, 274 Wis. 2d 513, 683 N.W.2d 497 (Schudson, J., concurring) 

(emphasis in original). The legislature allows this 

undisputedly violent man to possess a firearm. "Another man 

enters a garage to steal a shovel; he has committed a 

burglary," which is a felony offense. Id. The legislature 

forever prohibits him from possessing a firearm. "One woman 

drives while intoxicated, threatening the lives of countless 

citizens. Under Wisconsin's drunk driving laws——the weakest in 

the nation——she has committed a non-criminal offense if it is 

her first, or only a misdemeanor unless it is her fifth (or 

subsequent) offense." Id., ¶48. Wisconsin's legislature deems 

this woman fit to possess a firearm. "Another woman, however, 

forges a check; she has committed a felony." Id. As a result, 

Wisconsin's legislature forever prohibits her from possessing a 

firearm. Despite the utterly ineffectual distinctions drawn by 

the legislature, the majority allows the legislature to 

permanently dispossess non-dangerous individuals of their Second 

Amendment rights while allowing violent citizens to retain them. 

 

7 State v. Pocian, 2012 WI App 58, ¶12, 341 Wis. 2d 380, 814 

N.W.2d 894 (quoted source omitted) (holding that felon 

dispossession statutes are a "matter of public safety").
No. 2018AP594-CR.rgb

13

Even intermediate scrutiny cannot save a statute that purports 

to serve an important government interest——protecting society 

from violent criminals——but fails so miserably to achieve it.

¶79 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." Binderup, 

836 F.3d at 363 (Hardiman, J., concurring). Instead, "such laws 

are categorically invalid as applied to persons entitled to 

Second Amendment protection." Id. In Binderup, a federal 

statute dispossessing all individuals convicted of state 

misdemeanors punishable by more than two years in prison 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. Id. at 364. So too with Wisconsin's 

categorical ban on the possession of firearms by non-dangerous 

felons. The original meaning of the Second Amendment, 

encompassing a traditional understanding of the scope of the 

rights it protects as well as the range of historically 

recognized restrictions, establishes this statute's 

unconstitutionality, independent of the application of any 

standard of scrutiny.

III

¶80 At its inception, the right to keep and bear arms 

protected under the Second Amendment was never understood to 
No. 2018AP594-CR.rgb

14

countenance the categorical exclusion of felons that Wis. Stat. 

§ 941.29(1m) endorses. Historically, legislatures prohibited 

only dangerous people from possessing a firearm, not an 

individual like Roundtree who, although convicted of a felony 

offense, poses no demonstrable risk to the public. This more 

narrowly drawn restriction reflects the nature of the right as 

an individual, rather than a merely collective or civil one.

¶81 In drafting the Second Amendment, "both Federalists 

and Anti-Federalists accepted an individual right to arms; the 

only debate was over how best to guarantee it." Don B. Kates, 

Jr., Handgun Prohibition and the Original Meaning of the Second 

Amendment, 82 Mich. L. Rev. 204, 223 (1983). The Founders 

settled on the following language: "A well regulated Militia, 

being necessary to the security of a free State, the right of 

the people to keep and bear Arms, shall not be infringed." U.S.

Const. amend. II. When judges interpret constitutional text, we 

give words their original public meaning. Judges who instead 

inject a modern gloss over constitutional provisions 

impermissibly change their meaning, a right reserved to the 

people through the process of constitutional amendment. In 

interpreting the Second Amendment, we accordingly apply the 

particular meaning of the words "militia" and "right of the 

people" as they were understood at the time of ratification.

¶82 At the time of the founding, "militia" meant "the body 

of the people"——an adult citizenry "who were not simply allowed 

to keep their own arms, but affirmatively required to do so." 

Letters from the Federal Farmer to the Republican 123 (W.
No. 2018AP594-CR.rgb

15

Bennett ed. 1978) (ascribed to Richard Henry Lee) ("A militia, 

when properly formed, are in fact the people 

themselves . . . ."); Kates, supra, at 214 (discussing how, in 

the pre-colonial tradition, male citizens were required to keep 

arms for purposes of law enforcement). It was the citizenry's 

collection of personally-owned firearms that made possible law 

enforcement and military service during the founding era. After 

all, the Founders preserved this right primarily in response to 

the tyranny witnessed in England and its corresponding colonies. 

As George Mason warned, it was the goal of the English monarch 

"to disarm the people," as that was the "best and most effectual 

way to enslave them." 3 J. Elliot, Debates in the Several State 

Conventions 380 (2d ed. 1836).

¶83 As a principal means of resisting such tyranny, the 

Founders enshrined the "right of the people" to keep and bear 

arms as an individual right. As Richard Henry Lee understood, 

"to preserve liberty, it is essential that the whole body of the 

people always possess arms and be taught alike, especially when 

young, how to use them." Kates, supra, at 221-22 (citing 

Letters from the Federal Farmer, supra, at 124). For Lee, the 

right to keep and bear arms formed a bedrock of an independent 

nation and free society. The Second Amendment "right of the 

people" perfectly mirrors the language found in the First and 

Fourth Amendments. In each of these provisions, "the people" 

unequivocally retain far-reaching and fundamental individual 

rights under the Constitution. As Heller acknowledged, "the 

people" "refers to a class of persons who are part of a national 
No. 2018AP594-CR.rgb

16

community or who have otherwise developed sufficient connection 

with this country to be considered part of that community." 

Heller, 554 U.S. at 580 (citing United States v. VerdugoUrquidez, 494 U.S. 259, 265 (1990)). It is within the context 

of this broad protection of individual liberty that the Second 

Amendment must be understood. While the Constitution permits 

certain restrictions, regulations, and forfeitures of the right 

to keep and bear arms, any curtailing of such a fundamental 

liberty interest requires close judicial inspection.

¶84 In a case also concerning a constitutional challenge 

to Wis. Stat. § 941.29(1m), Seventh Circuit Court of Appeals 

Judge Amy Barrett undertook the "exhaustive historical analysis" 

of the Second Amendment as applied to felons, an issue left 

unexamined in Heller, which did not consider the 

constitutionality of felon dispossession laws. In that seminal 

opinion, then-Judge Barrett concluded that "[h]istory is 

consistent with common sense: it demonstrates that legislatures 

have the power to prohibit dangerous people from possessing 

guns[,] [b]ut that power extends only to people who are 

dangerous." Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) 

(Barrett, J., dissenting). Founding-era state ratifying 

conventions and contemporaneously-enacted legislation reveal 

that the Second Amendment never empowered legislatures to disarm

non-dangerous felons.

¶85 Language protecting the right to bear arms proposed 

during the New Hampshire, Massachusetts, and Pennsylvania 

ratifying conventions is frequently cited as evidence of the 
No. 2018AP594-CR.rgb

17

constitutionality of felon disarmament. Kanter, 919 F.3d at 455 

(Barrett, J., dissenting). All three proposals, however, would 

have excluded from the Second Amendment's protections only 

people who were dangerous. Id. at 456. The New Hampshire state 

convention proposed that "Congress shall never disarm any 

Citizen unless such as are or have been in Actual Rebellion." 2 

Bernard Schwartz, The Bill of Rights: A Documentary History 761 

(1971) (emphasis added). At the time, "[t]his limitation 

targeted a narrow group because 'rebellion' was a very specific 

crime" denoting treason. Kanter, 919 F.3d at 455 (Barrett, J., 

dissenting) (citing Rebellion, 2 New Universal Etymological 

English Dictionary (4th ed. 1756)). Nothing in the historical 

record suggests New Hampshire would have extended disarmament to 

common criminals, much less individuals who posed no risk to 

public safety.

¶86 The same can be said for the proposal from the 

Massachusetts convention. Samuel Adams suggested limiting the 

right to bear arms to "peaceable citizens." Id. (citing 

Schwartz, supra, at 681). In the founding era, "'peaceable' 

meant '[f]ree from war; free from tumult'; '[q]uiet; 

undisturbed'; '[n]ot violent; not bloody'; '[n]ot quarrelsome; 

not turbulent.'" Kanter, 919 F.3d at 455 (Barrett, J., 

dissenting) (citing 1 Samuel Johnson, A Dictionary of the 

English Language (5th ed. 1773)). Each of the antonyms of 

"peaceable" connote some form of danger to the public at large. 

In other words, the Massachusetts convention couched its 

proposed Second Amendment limitation within the context of one's 
No. 2018AP594-CR.rgb

18

propensity for violence; nothing in the language purports to 

exclude criminals as a class.

¶87 Lastly, although the Pennsylvania convention offered 

ostensibly the strongest restriction on Second Amendment rights, 

a more careful reading of this proposal suggests otherwise. The 

Pennsylvania Minority proposed: "That the people have a right 

to bear arms . . . and no law shall be passed for disarming the 

people or any of them unless for crimes committed, or real 

danger of public injury from individuals." Schwartz, supra, at 

665 (emphasis added). There are two potential interpretations 

of this language: one that would exclude both criminals as well 

as the otherwise dangerous, and another that would exclude those 

who pose a danger to society, irrespective of whether they have 

committed crimes. Kanter, 919 F.3d at 456 (Barrett, J., 

dissenting). Given the absence of any historical indications 

that the founding generation contemplated the dispossession of 

all criminals, the latter interpretation is the more reasonable 

one, under which "the catchall phrase limiting the rights of 

individuals who pose a 'real danger of public injury' would be 

an effort to capture non-criminals whose possession of guns 

would pose the same kind of danger as possession by those who 

have committed crimes" namely, "a subset of crimes" involving 

"real danger of public injury." Id. (emphasis in original).

¶88 Of course, none of the limiting language proposed by 

any of these states' conventions appears in the Second 

Amendment. Id. This omission provides further textual proof 

that Second Amendment rights extend to every citizen, unless 
No. 2018AP594-CR.rgb

19

restricted or removed for constitutionally-permissible reasons, 

which were uniformly rooted in concerns over dangerousness 

rather than general criminality. An examination of legislation 

in the American colonies predating the Second Amendment confirms 

this understanding. Concerned at the time with impending 

threats of English tyranny, the founding generation dispossessed 

individuals "who refused to pledge their loyalty to the 

Revolution, state, or nation." Binderup, 836 F.3d at 368 

(Hardiman, J., concurring). Early Americans grounded their 

disarmament laws in quelling the "potential danger" posed by 

those who were disloyal, although they had committed no crime. 

Id. (citing Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, 

Tobacco, Firearms, & Explosives, 700 F.3d 185, 200 (5th Cir. 

2012)). At its core, the founding generation enacted these 

types of laws in order to "deal with the potential threat coming 

from armed citizens who remained loyal to another sovereign." 

Kanter, 919 F.3d at 457 (Barrett, J., dissenting) (quoted source 

omitted). These laws were not concerned with categorical 

distinctions based upon classes of criminals nor an individual's 

prior legal transgressions. Instead, they were designed to 

disarm individuals who posed a danger to society or, 

particularly in the founding era, a danger to the Revolution.

¶89 The same can be said about other laws enacted close in 

time to the founding. In particular, colonial legislatures 

passed statutes disarming Native Americans and slaves, 

purportedly out of fear of their armed "revolt" or other threats 

to "public safety." Id. at 458 (citing Joyce Lee Malcolm, To 
No. 2018AP594-CR.rgb

20

Keep and Bear Arms 140-41 (1994)). Similarly, a distrust of 

Catholics prompted their disarmament "on the basis of 

allegiance" rather than faith. Id. at 457 (citing Robert H. 

Churchill, Gun Regulation, the Police Power, and the Right to 

Keep Arms in Early America: The Legal Context of the Second 

Amendment, 25 Law & Hist. Rev. 139, 157 (2007)). Although these 

laws would not survive a contemporary constitutional challenge, 

they nevertheless reveal the limits the founding generation 

contemplated for the right to keep and bear arms. The earliest 

Americans enacted them out of a fundamental fear of rebellion 

and public unrest, rather than as a forfeiture for criminal 

conduct. Constitutionally permissible disarmament is 

circumscribed by founding-era conceptions of a person's danger 

to society. In other words, "Heller instructs that the public 

understanding of the scope of the right to keep and bear arms at 

the time of the Second Amendment dictates the scope of the right 

today." Binderup, 836 F.3d at 367 (Hardiman, J., concurring).

¶90 In contrast to its meaning under Wis. Stat. 

§ 941.29(1m), the word "felon" signified something quite 

different in the founding era. "At early common law, the term 

'felon' applied only to a few very serious, very dangerous 

offenses such as murder, rape, arson, and robbery." Don B. 

Kates & Clayton E. Cramer, Second Amendment Limitations and 

Criminological Considerations, 60 Hastings L.J. 1339, 1362 

(2009). Over time, English Parliament began classifying more 

and more crimes as "capital offenses, some involving trivial 

thefts." Id. In colonial America, capital punishment was rare. 
No. 2018AP594-CR.rgb

21

Kanter, 919 F.3d at 459 (Barrett, J., dissenting). Although a 

definitive understanding of what "felony" meant at that time 

remains elusive, a felony conviction unaccompanied by a life 

sentence typically resulted in a suspension of rights, rather 

than a permanent loss. Id.

¶91 Contrary to this overarching distinction between 

dangerous and non-dangerous individuals, some courts——and the 

State in this case——claim that the original meaning of the 

Second Amendment is rooted in a "virtuous citizenry" test. See, 

e.g., United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 

2010) (citing with approval cases concluding that the right to 

bear arms was tied to the concept of a virtuous citizenry); 

United States v. Carpio-Leon, 701 F.3d 974, 979-80 (4th Cir. 

2012) ("[F]elons were excluded from the right to arms because 

they were deemed unvirtuous."). According to this theory, the 

"right to arms was inextricably and multifariously linked to 

that of civic virtue . . . ." Kates & Cramer, supra, at 1359. 

Because criminals have engaged in unvirtuous conduct, purveyors 

of this notion posit that the Framers intended to limit their 

Second Amendment liberties outright, irrespective of 

dangerousness. See id. at 1360.

¶92 The majority alludes to this concept in a selective 

but incomplete citation to Heller, proclaiming that "the Second 

Amendment secures 'the right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.'" Majority 

op., ¶21 (citing Heller, 554 U.S. at 635). Of course, far from 

restricting the right to keep and bear arms to a select segment 
No. 2018AP594-CR.rgb

22

of society, to be exercised only for self-defense in the home, 

Heller instead declared that the Second Amendment right "belongs 

to all Americans" and broadly protects all "defensive purposes" 

regardless of whether the right is exercised within or beyond 

the home. 554 U.S. at 581, 602. This is the core right 

protected by the Second Amendment. The full context of the 

phrase from Heller cited by the majority shows that the Second 

Amendment is neither limited to "law-abiding" citizens nor 

confined to the "defense of hearth and home." Instead, the 

Heller Court reserved other applications of the Second Amendment 

for "future evaluation" while declaring that the Constitution 

"surely elevates above all other interests" the practice 

prohibited by the District of Columbia's handgun ban: "the 

right of law-abiding citizens to use arms in defense of hearth 

and home." Id. at 635. While this may constitute a 

particularly sacrosanct exercise of the Second Amendment right, 

at its core, the Second Amendment protects far more, and nothing 

in an original understanding of its text remotely suggests a 

non-violent criminal forfeits his Second Amendment right 

altogether.

¶93 In suggesting that the Second Amendment right belongs 

only to the law-abiding, the virtuous citizen standard is deeply 

intertwined with the collective rights interpretation of the 

Second Amendment, a reading Heller debunked as contrary to the 
No. 2018AP594-CR.rgb

23

original meaning of the Second Amendment.8 While "history does 

show that felons could be disqualified from exercising certain 

rights——like the rights to vote and serve on juries——because 

these rights belonged only to virtuous citizens[,]" such "virtue 

exclusions are associated with civic rights——individual rights 

that 'require[] citizens to act in a collective manner for 

distinctly public purposes.'" Kanter, 919 F.3d at 462 (Barrett, 

J., dissenting) (citation omitted). In contrast, the Second 

Amendment "unambiguously" protects "individual rights," not 

collective rights. Heller, 554 U.S. at 579. Given the Supreme 

Court's rightful rejection of the collective rights theory as 

applied to the right to keep and bear arms, the virtuous 

citizenry standard is entirely misplaced in construing the 

Second Amendment, particularly considering that its exercise is 

"intimately connected with the natural right of self-defense, 

and not limited to civic participation." Kanter, 919 F.3d at 

464 (Barrett, J., dissenting).

¶94 The virtuous citizenry standard lacks any foundation 

in the historical backdrop to the Second Amendment. For one, 

 

8 The "virtuous-citizens-only conception of the right to 

keep and bear arms is closely associated with pre-Heller

interpretations of the Second Amendment by proponents of the 

'sophisticated collective rights model' who rejected the view 

that the Amendment confers an individual right and instead 

characterized the right as a 'civic right . . . exercised by 

citizens, not individuals . . . who act together in a collective 

manner, for a distinctly public purpose: participation in a 

well regulated militia.'" Binderup v. Atty. Gen. U.S. of 

America, 836 F.3d 336, 371 (3rd Cir. 2016) (Hardiman, J., 

concurring) (citing Saul Cornell & Nathan DeDino, A Well 

Regulated Right: The Early American Origins of Gun Control, 73 

Fordham L. Rev. 487, 491-92 (2004)).
No. 2018AP594-CR.rgb

24

"this supposed limitation on the Second Amendment stems from a 

misreading of an academic debate about 'ideological 

interpretation.'" Binderup, 836 F.3d at 371 (Hardiman, J.,

concurring) (citation omitted). In advancing this theory, 

certain scholars divorced themselves from more authoritative 

historical sources and wrongly focused upon whether or not 

particular Founders were civic republicans or libertarians. 

Id.; see also Saul Cornell & Nathan DeDino, A Well Regulated 

Right: The Early American Origins of Gun Control, 73 Fordham L. 

Rev. 487, 492 (2004). This debate over ideology may inform the 

Framers' motivations for constitutionally preserving the right 

to keep and bear arms, but it has nothing to say about the scope 

of the right or any constitutionally permissible restrictions on 

its exercise.

¶95 If the virtuous citizenry test was historically valid, 

we would expect to discover 18th and 19th century laws depriving 

felons of their Second Amendment rights——a class of people that 

would certainly be categorized as "unvirtuous." But that is 

simply not the case. In the decades following ratification, 

"nine states enacted their own right-to-arms provisions in their 

constitutions," and none of them placed restrictions on 

criminals. Kanter, 919 F.3d at 463 (Barrett, J., dissenting) 

(citing Eugene Volokh, State Constitutional Rights to Keep and 

Bear Arms, 11 Tex. Rev. L. & Pol. 191, 208-09 (2006)). The 

historic record affords the virtuous citizenry test no 

credibility; in fact, there is "no historical evidence on the 

public meaning of the right to keep and bear arms indicating 
No. 2018AP594-CR.rgb

25

that 'virtuousness' was a limitation on one's qualification for 

the right." Binderup, 836 F.3d at 373 (Hardiman, J., 

concurring). Instead, as outlined above, the original meaning

of the Second Amendment contemplates curtailing the rights of 

only those individuals who pose a danger to the public.

¶96 The majority's rationale for sanctioning the blanket 

revocation of felons' Second Amendment right is even weaker than 

the "virtuous citizen" justification. Wisconsin's citizens 

should be alarmed by the breathtaking scope of the majority's 

conclusion that "it is reasonable for the State to want to keep 

firearms out of the hands of those who have shown a willingness 

to . . . break the law"9 considering the "cancerous growth since 

the 1920s of 'regulatory' crimes punishable by more than a year 

in prison, as distinct from traditional common-law crimes. The 

effect of this growth has been to expand the number and types of 

crimes that trigger 'felon' disabilities to rope in persons 

whose convictions do not establish any threat that they will 

physically harm anyone, much less with a gun." Marshall, supra, 

at 697. As but one example of how the ever-expanding regulatory 

state may eventually make felons of us all, recall that whomever 

fails "to comply with any record-keeping requirement for fish" 

is guilty of a Class I felony under Wis. Stat. § 29.971(1)(c) 

(provided the fish are worth more than $1,000).

¶97 Only months ago, a slim majority of this court 

invalidated Executive Order 28, which had been issued by a 

single, unelected bureaucrat who in the name of the COVID-19 

 

9 Majority op., ¶48.
No. 2018AP594-CR.rgb

26

pandemic "claimed the authoritarian power to authorize the 

arrest and imprisonment of the people of Wisconsin for engaging 

in lawful activities proscribed by the DHS secretary-designee in 

her sole discretion." Wisconsin Legislature v. Palm, 2020 WI 

42, ¶81, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca Grassl 

Bradley, J., concurring). Had the court ruled otherwise, would

a majority of this court deem it "reasonable" to keep firearms 

out of the hands of those who disobeyed a cabinet secretary's 

decree to "all people within Wisconsin to remain in their homes, 

not to travel and to close all businesses that she declares are 

not 'essential'"? Palm, 391 Wis. 2d 497, ¶1. If so, the 

court's decision in this case would give the State license to 

disarm a substantial portion of the citizens of Wisconsin based 

on their "willingness to break the law" as unilaterally decreed 

by an unelected bureaucrat, for the unspeakable crimes of 

opening their "non-essential" businesses or washing their hands 

for less than 20 seconds. Palm, 391 Wis. 2d 497, ¶87 (Kelly, 

J., concurring). As a general proposition, the judiciary should 

defer to the policy choices of the legislative branch, but when 

those policy choices unconstitutionally infringe the people's 

fundamental rights, it is the duty of the judicial branch to say 

so. "[T]o make an individual's entitlement to the Second 

Amendment right itself turn on the predilections of the 

legislature . . . is deference the Constitution won't bear." 

Binderup, 836 F.3d at 374 (Hardiman, J., concurring).

¶98 Underlying the founding generation's reverence for the 

fundamental right to keep and bear arms was the understanding 
No. 2018AP594-CR.rgb

27

that "[o]ne of the ordinary modes, by which tyrants accomplish 

their purposes without resistance, is, by disarming the people, 

and making it an offence to keep arms." Heller, 554 U.S. at 

608-09 (citing Joseph Story, A Familiar Exposition of the 

Constitution of the United States § 450 (reprinted 1986)). 

Embodying "the first law of nature" and representing "the true 

palladium of liberty," the people's Second Amendment right 

deserves far more respect than the legislature or the majority 

give it.

IV

¶99 Whether applying strict scrutiny or some lesser 

standard, Wis. Stat. § 941.29(1m) is unconstitutional as applied 

to Roundtree, under the original meaning of the Second 

Amendment. Even if a compelling state interest underlies the 

statute, it lacks any narrow tailoring tied to the protection of 

the public and therefore the statute unconstitutionally limits 

Roundtree's right to keep and bear arms. Nor does § 941.29(1m) 

bear a substantial relation to an important governmental 

objective. Section 941.29(1m) bans every felon from possessing 

a firearm in this state, regardless of whether he poses a danger 

to the public. If the compelling/important state interest is 

protecting the public from dangerous felons, then the statute 

must actually do so. Instead, § 941.29(1m) disarms every 

citizen convicted of a felony offense, regardless of the nature 

of the crime involved, and irrespective of whether the offender 

is dangerous. To survive either strict or intermediate 

scrutiny, § 941.29(1m) would need to reach only dangerous 
No. 2018AP594-CR.rgb

28

felons, as determined by the crime committed or the offender's 

personal characteristics. Under the intermediate level of 

scrutiny applied by the majority, in order to assess "the 

strength of the government's justification for restricting"10

Roundtree's Second Amendment rights——public safety——the court 

must ask whether the public is safer now that Roundtree is 

completely and permanently disarmed.11

¶100 Roundtree committed a non-violent felony when he 

failed to pay child support 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. Majority op., ¶51. Of 

course, Roundtree was never incarcerated for his offense, so the 

only foundation for the majority's declaration of a "substantial 

 

10 Majority op., ¶40 (citation omitted).

11 C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?,

32 Harv. J.L. & Pub. Pol'y 695, 696 (2009) ("Is the public safer 

now that Martha Stewart is completely and permanently

disarmed?").
No. 2018AP594-CR.rgb

29

relation" between disarming nonviolent felons and "preventing 

gun violence" collapses when applied to Roundtree and others 

like him who never spent time in prison.

¶101 Even if Roundtree had spent time in prison, the 

premise that the State may permanently disarm all felons in 

order to protect the public, based on data showing that 21.4 

percent of felons incarcerated for "public order offenses" later 

commit violent ones, presents a specious justification for 

infringing a fundamental constitutional right. Unlike Roundtree 

who was sentenced to probation, Martha Stewart spent five months 

in jail. Marshall, supra, at 695. "Is the public safer now 

that Martha Stewart is completely and permanently disarmed?" 

Id. at 696. Of course not, and "it is at least curious how 

Martha Stewart could merit anyone's concern." Id. at 735. The 

same could be said for Roundtree, since the State produced no 

evidence indicating that Roundtree presents a danger to society 

warranting removal of his Second Amendment right.

¶102 The Founders never understood legislatures to have the 

power to strip non-dangerous criminals of their Second Amendment 

rights, which the Constitution protects for all Americans. 

Absent statutory language narrowly tailoring the disarming of 

felons based upon their perceived dangerousness, or even bearing 

a substantial relationship to the ostensible governmental 

objective of protecting society, Wis. Stat. § 941.29(1m) cannot 

survive any level of constitutional scrutiny as applied to 

Roundtree, much less the hapless possessor of fish who runs 

afoul of the record-keeping requirements of Chapter 29 of the 
No. 2018AP594-CR.rgb

30

Wisconsin Statutes. Without the predictive powers of the mutant 

precogs from "The Minority Report,"12 permanently revoking the 

Second Amendment rights of those who fail to meet their familial 

financial obligations or carelessly keep their fish records, 

bears no relationship to "public safety" or "the prevention of 

gun violence," majority op., ¶53, much less a substantial one.

¶103 Of particular constitutional concern, Wis. Stat. 

§ 941.29(1m) permanently disarms Roundtree and other nondangerous felons, who have no avenue for having their Second 

Amendment rights restored. In contrast, a convicted felon only 

temporarily loses his right to vote during his incarceration and 

extended supervision. Wis. Stat. § 6.03(1)(b). Once he 

completes the term of his sentence, the State restores his 

voting rights. Wis. Stat. § 304.078(3). Similarly, convicted 

felons regain their right to serve as jurors after their civil 

rights have been restored. Wis. Stat. § 756.02. Reviving these 

collective rights for felons while permanently dispossessing 

them of their individual and fundamental Second Amendment rights 

turns the constitutional order on its head.

 

12 "The Minority Report is a 1956 science fiction novella by 

American writer Philip K. Dick, first published in Fantastic 

Universe. In a future society, three mutants foresee all crime 

before it occurs. Plugged into a great machine, these 'precogs' 

allow a division of the police called Precrime to arrest 

suspects before they can commit any actual crimes." The 

philosophical premise underlying the novella "question[s] the 

relationship between authoritarianism and individual autonomy." 

The story was adapted into the 2002 film "Minority Report," 

directed by Steven Spielberg. 

https://en.wikipedia.org/wiki/The_Minority_Report.
No. 2018AP594-CR.rgb

31

* * * * *

¶104 To the extent Wis. Stat. § 941.29(1m) permanently 

deprives Roundtree of his fundamental, individual right to keep 

and bear arms, with no showing of his dangerousness to society, 

this statute is unconstitutional as applied to Roundtree. While 

the wisdom of the legislature's policy choices may be fiercely 

debated, "the enshrinement of constitutional rights necessarily 

takes certain policy choices off the table." Heller, 554 U.S. 

at 636. Permanent dispossession of felons' Second Amendment 

rights is one of them. "[A]n act of the Legislature repugnant 

to the Constitution is void." Marbury, 5 U.S. at 177. As 

applied to felons who pose no danger to society, Wisconsin's 

felon dispossession statute is repugnant to the Constitution, 

and therefore void. Because the majority allows statutory law 

to override the fundamental constitutional right to keep and 

bear arms, I dissent.
No. 2018AP594-CR.bh

1

¶105 BRIAN HAGEDORN, J. (dissenting). The Second 

Amendment prohibits the government from infringing upon the 

individual and fundamental right to keep and bear arms. 

Wisconsin, however, makes possession of firearms a crime for any 

person convicted of a felony. Wis. Stat. § 941.29(1m)(a) (2017-

18).1 This complete ban on possessing firearms never expires; it 

lasts for a lifetime. It matters not whether the felony was for 

making unlawful political contributions (Wis. Stat. 

§ 11.1401(1)(a)), legislative logrolling (Wis. Stat. § 13.05), 

armed robbery (Wis. Stat. § 943.32(2)), or here, delinquent 

child support (Wis. Stat. § 948.22(2)).

¶106 In 2003, Leevan Roundtree was convicted of a felony 

for failure to pay child support for more than 120 days. In 

2015, a search warrant found him in possession of a firearm 

under his mattress at his home, leading to the charge currently 

before us on appeal. Roundtree asks this court to decide 

whether the Second Amendment permits the State to criminalize 

his possession of a firearm. The majority answers yes, 

reasoning that the State may disarm all those who have committed 

a felony of whatever kind. I disagree. I conclude that the 

original public meaning of the Second Amendment supports 

applying at least intermediate scrutiny to this type of 

restriction. This places the burden on the State to demonstrate 

that the law is constitutional as applied to Roundtree by 

proving a substantial relationship, a close fit, between 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version.
No. 2018AP594-CR.bh

2

criminalizing gun possession for those convicted of any felony 

or of the felony of failure to pay child support and the State's 

interest in preventing gun-related violence. The State has come 

nowhere close to meeting its burden. I respectfully dissent.

I. THE SECOND AMENDMENT

¶107 We begin by laying down the guiding principles of

constitutional interpretation, and then apply those principles 

to the Second Amendment.2

A. Principles of Constitutional Interpretation

¶108 In America, the people are sovereign. This is the 

bedrock principle of American government. Wis. Leg. v. Palm, 

2020 WI 42, ¶172, 391 Wis. 2d 497, 942 N.W.2d 900 (Hagedorn, J., 

dissenting) ("Government has a morally legitimate claim to order 

and command not because it has the biggest guns or because it's 

always been that way, but because the people have given it that 

power."). When the people established our federal government, 

they granted it only a limited set of enumerated powers. United 

States v. Morrison, 529 U.S. 598, 607 (2000). States, 

meanwhile, retained broad and far-reaching police powers, 

covering the state's inherent power "to promote the general 

welfare," which "covers all matters having a reasonable relation 

 

2 Roundtree also challenges Wis. Stat. § 941.29(1m)(a) under 

Article I, Section 25 of the Wisconsin Constitution. However, 

he fails to develop this argument in any meaningful way, and we 

will not do so for him. Serv. Emps. Int'l Union, Loc. 1 v. Vos, 

2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35. Accordingly, 

this analysis focuses on the Second Amendment alone.
No. 2018AP594-CR.bh

3

to the protection of the public health, safety or welfare." 

State v. Interstate Blood Bank, Inc., 65 Wis. 2d 482, 490, 222 

N.W.2d 912 (1974).

¶109 Neither state nor federal power is without limitation, 

however. The people declared certain areas off limits. Many of 

these limits are listed in the federal Constitution's Bill of 

Rights, including the Second Amendment's protection of the right 

"to keep and bear Arms." U.S. Const. amend. II.

¶110 Initially, the Bill of Rights only applied against the 

federal government. Timbs v. Indiana, 139 S. Ct. 682, 687 

(2019). Following the Civil War, however, the people decided

that some of the limits on federal power should also constrain 

the exercise of state power. Id. To that end, the people 

adopted the Fourteenth Amendment which, among other things, 

provides that states may not "abridge the privileges or 

immunities of citizens of the United States" or "deprive any 

person of life, liberty, or property, without due process of 

law." U.S. Const. amend. XIV, § 1. Over time, the United 

States Supreme Court has construed the Fourteenth Amendment as 

incorporating most of the protections in the Bill of Rights 

against the States——the Second Amendment among them. McDonald 

v. City of Chicago, 561 U.S. 742, 750 (2010). Once 

incorporated, the amendment's "protection applies 'identically 

to both the Federal Government and the States.'" Timbs, 139 

U.S. at 689 (quoting McDonald, 561 U.S. at 766 n.14). 

Therefore, no arm of Wisconsin government may infringe upon "the 
No. 2018AP594-CR.bh

4

right of the people to keep and bear Arms." U.S. Const. amend. 

II.

¶111 The Supreme Court's Second Amendment jurisprudence is 

sparse, establishing for our purposes only two controlling 

propositions: (1) the Second Amendment is incorporated against 

the States via the Fourteenth Amendment; and (2) the right the 

Second Amendment protects is an individual right, not a 

collective right. McDonald, 561 U.S. at 749-50; District of 

Columbia v. Heller, 554 U.S. 570, 595 (2008). While we are 

bound by these holdings, neither offers much assistance in this 

case. Several federal courts of appeals have opined on the 

intersection of the Second Amendment and felon-dispossession 

laws, but those decisions are merely persuasive, not binding.

¶112 In other words, this court is both free and duty-bound 

to do the job of a court——not just to compare and contrast other 

courts' opinions, but to explore the meaning of the Second 

Amendment and apply it afresh. Admittedly, this is a difficult 

task. But we are not without the tools to do the job. When the 

people enacted the Constitution, they used words with certain 

meanings, and those words were understood——and meant to be 

understood——by the public. Our job when reading and applying 

the Constitution is to learn how its words were understood by 

the public when they were written, what many call the "original 

public meaning."

¶113 The first task in this inquiry is, not surprisingly, 

to read the constitutional text taking into account its context 

and structure. The people who adopted it, after all, can be 
No. 2018AP594-CR.bh

5

presumed to have meant what their words conveyed when they wrote 

and adopted them. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 

(1824) ("[T]he people who adopted [the Constitution], must be 

understood to have employed words in their natural sense, and to 

have intended what they have said."); see also Joseph L. Story, 

1 Commentaries on the Constitution of the United States § 451 

(1833) ("In the first place, then, every word employed in the 

constitution is to be expounded in its plain, obvious, and 

common sense, unless the context furnishes some ground to 

control, qualify, or enlarge it.").

¶114 However, sometimes the meaning of the text is 

difficult to determine. This can be especially true with the 

passage of time. When that is the case, we look to the 

historical record for clues as to what the public understood the 

provision to mean when it was adopted. Serv. Emps. Int'l Union, 

Loc. 1 v. Vos, 2020 WI 67, ¶28 n.10, 393 Wis. 2d 38, 946 

N.W.2d 35 ("[W]here necessary, helpful extrinsic aids may 

include the practices at the time the constitution was adopted, 

debates over adoption of a given provision, and early 

legislative interpretation as evidenced by the first laws passed 

following the adoption."). The meaning of the text as 

enlightened by the historical record is no less binding because 

the historical inquiry is still directed toward discovering what 

the words were understood to convey when written. See McPherson 

v. Blacker, 146 U.S. 1, 27 (1892); Heller, 554 U.S. at 592. In 

other words, the original public meaning controls, even when we 

have to work a little to find it.
No. 2018AP594-CR.bh

6

¶115 Judicial application of the original public meaning is 

sometimes quite easy. A President, for example, must be at 

least 35 years old. U.S. Const. art. II, § 1, cl. 5. Putting 

that into practice isn't difficult and requires nothing more 

than analyzing and applying the text. But other provisions, 

especially the more vaguely worded protections in the Bill of 

Rights, often demand some legal framework or test that enables a 

court to apply the law to the facts of a case. See, e.g., Ezell 

v. City of Chicago, 651 F.3d 684, 700-04 (7th Cir. 2011); see 

also Bartlett v. Evers, 2020 WI 68, ¶¶256-59, 393 Wis. 2d 172, 

945 N.W.2d 685 (Hagedorn, J., concurring). Our law is replete 

with these implementing doctrines that give effect to various 

constitutional provisions.3

¶116 A proper legal test must implement and effectuate the 

original public meaning of the law. Bartlett, 393 Wis. 2d 172, 

¶259 (Hagedorn, J., concurring) (explaining that an appropriate

implementing doctrine is one "that gets us to the heart of the 

constitution's meaning"). This is not a license for the 

judiciary to engage in policy-driven constitutional line 

drawing. Rather, an implementing doctrine must be a faithful 

 

3 For example, the Fourth Amendment protects against 

unreasonable searches and seizures. This text is put into 

practice with the default warrant requirement and analytical 

categories such as reasonable suspicion, probable cause, and 

exigent circumstances. E.g., Terry v. Ohio, 392 U.S. 1, 27 

(1968); Payton v. New York, 445 U.S. 573, 590 (1980). Most 

challenges under the equal protection clause are analyzed under 

a rational basis test. E.g., Gregory v. Ashcroft, 501 U.S. 452, 

470 (1991). But government discrimination on the basis of race 

is subject to strict scrutiny. E.g., Loving v. Virginia, 388 

U.S. 1, 11 (1967). And the list could go on.
No. 2018AP594-CR.bh

7

extension of the lines ascertainable in the provision's text and 

history. Id., ¶¶257-59. 

¶117 With these principles in mind, we turn to the text and 

history of the Second Amendment, followed by a discussion of its 

proper application.

B. The Text

¶118 The Second Amendment provides: "A well regulated 

Militia, being necessary to the security of a free State, the 

right of the people to keep and bear Arms, shall not be 

infringed." U.S. Const., amend. II. 

¶119 As more extensively discussed in Heller, the Second 

Amendment contains both a prefatory and operative clause, the 

latter of which protects the right to keep arms and to bear 

them. Heller, 554 U.S. at 576-78. Historical evidence makes 

clear that "'[k]eep arms' was simply a common way of referring 

to possessing arms, for militiamen and everyone else." Id. at 

583. Similarly, to "bear" arms meant to carry, as it is 

understood today. Id. at 584. 

¶120 The text's reference to "the right of the people" 

reflects an understanding that this right——like the Founders' 

understanding of many protections in the Bill of Rights——did not 

create a new right unknown to the people. Id. at 592. Rather, 

the Second Amendment presumes this right already existed and was 

held by the people. Id. The Second Amendment therefore called 

upon a right that had an ascertainable scope and substance, and 

gave it protection in our fundamental law.
No. 2018AP594-CR.bh

8

¶121 By adopting the Second Amendment, then, the people 

prohibited the federal government from infringing their right to 

keep and bear arms to the same extent the right existed when the 

Second Amendment was ratified in 1791. As Heller explained, 

"Constitutional rights are enshrined with the scope they were 

understood to have when the people adopted them, whether or not 

future legislatures or (yes) even future judges think that scope 

too broad." Id. at 634-35. 

¶122 The text, however, leaves many questions unanswered. 

It does not readily reveal the nature of the right as it was 

originally understood, and therefore the power of the state to 

regulate matters touching its protections. Accordingly, we look 

to the historical record for further assistance.

C. The History

¶123 In 1689 King William and Queen Mary assured Englishmen 

that they would never be disarmed. Heller, 554 U.S. at 593. 

Codified in the English Bill of Rights, the protection provided: 

"That the Subjects which are Protestants, may have Arms for 

their Defence suitable to their Conditions, and as allowed by 

Law." Id. (quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at 

Large 441 (1689)). The English right to arms "has long been 

understood to be the predecessor to our Second Amendment." Id. 

This forerunner, and its understanding leading up to the 

adoption of the Second Amendment in 1791, is our starting point.

¶124 But our study of the historical record does not end 

there. As noted above, the Second Amendment does not operate 
No. 2018AP594-CR.bh

9

against the states directly; it does so by incorporation via the 

Fourteenth Amendment, which was ratified in 1868. Although this 

issue engenders some debate, the prevailing view is that "when 

state- or local-government action is challenged, the focus of 

the original-meaning inquiry is carried forward in time; the 

Second Amendment's scope as a limitation on the States depends 

on how the right was understood when the Fourteenth Amendment 

was ratified." Ezell, 651 F.3d at 702 (citing McDonald, 561 

U.S. at 770-77). Thus, our study of the historical record does 

not conclude with the close of the Founding Era, but rather 

continues through the Reconstruction Era. Id. at 702-03.

1. A Positive Right

¶125 At its core, the historical record demonstrates that 

the Second Amendment protects the longstanding, natural right to 

self-defense.

¶126 From the outset, the English Bill of Rights made this 

point explicit by guaranteeing the right to "have Arms 

for . . . Defence." Heller, 554 U.S. at 593. Blackstone, 

reflecting on the English right, noted that it protected the 

"natural right of resistance and self-preservation" and "the 

right of having and using arms for self-preservation and 

defence." Id. at 594 (quoting 1 William Blackstone, 

Commentaries on the Laws of England 139-40 (1765)).

¶127 Across the Atlantic, after King George III tried to 

disarm American colonists, Americans "invoke[ed] their rights as 

Englishmen to keep arms." Id. It was in that context that a 
No. 2018AP594-CR.bh

10

New York newspaper said in April 1769 that "[i]t is a natural 

right which the people have reserved to themselves, confirmed by 

the Bill of Rights, to keep arms for their own defence." Id.

(quoted source omitted). On the American conception of the 

right to keep and bear arms, Blackstone observed it was "without 

any qualification as to their condition or degree, as [was] the 

case in the British government." 1 William Blackstone, 

Commentaries on the Laws of England 143 n.40 (St. George Tucker 

ed. 1803).

¶128 In short, the central component of the Second 

Amendment is the longstanding, natural right to self-defense. 

Heller, 554 U.S. at 595. And, as Heller noted, this right 

extends "to the home, where the need for defense of self, 

family, and property is most acute." Id. at 628.

2. With Limitations

¶129 This core right, however, was not impervious to 

certain types of government regulation. Laws restricting the 

right to keep and bear arms were rare, but they were not 

unknown. Those that existed were largely aimed at persons or 

classes of people who might violently take up arms against the 

government in rebellion, or at persons who posed a more 

immediate danger to the public.

¶130 An early instance of this was in 1689, the same year 

the English Bill of Rights codified Protestants' right to 

possess arms. At that time, Catholics were deemed a threat to 

rebel against the Protestant crown and "were not permitted to 
No. 2018AP594-CR.bh

11

'keep arms in their houses.'" Heller, 554 U.S. at 582 (quoting 

4 William Blackstone, Commentaries on the Laws of England 55 

(1769)). A 1695 Irish law disarmed Catholics on the same basis. 

7 Will. III ch. 5, § 3 (1695); see also Joseph G.S. Greenlee, 

The Historical Justifications for Prohibiting Dangerous Persons 

from Possessing Arms, 20 Wyo. L. Rev. 249, 260 (2020). These 

class-based dispossessions of those feared to be disloyal to the 

crown, and therefore likely to take up arms against the crown, 

were renewed multiple times and persisted well into the 18th 

century. Greenlee, supra at 260-61.

¶131 The American colonies adopted similar laws disarming 

those they feared would use them to violent ends. In 1736, 

Virginia permitted constables to "take away Arms from such who 

ride, or go, offensively armed, in Terror of the People." 

Id. at 262 (quoting George Webb, The Office of Authority of a 

Justice of Peace 92-93 (1736)). And in 1756, during the French 

and Indian War, Virginia authorized the seizure of arms from 

Catholics out of fear they were sympathetic to the French cause 

and would take up arms against the colonies. Id. at 263. But 

even that law provided an exception "for the defense of his 

house or person." Id. (quoting 7 William Waller Hening, The 

Statutes at Large; Being a Collection of All the Laws of 

Virginia 37 (1820)). Maryland and Pennsylvania also enacted 

similar laws during the French and Indian War. Id.

¶132 The revolutionary years gave rise to related laws 

targeting those perceived as disloyal to the American cause and 

therefore at risk to take up arms in violence against it. In 
No. 2018AP594-CR.bh

12

1775, Connecticut prohibited anyone who defamed acts of Congress 

from keeping arms "until such time as he could prove his 

friendliness to the liberal cause." Id. at 268 (quoting G.A. 

Gilbert, The Connecticut Loyalists in 4 Am. Historical Rev. 273, 

282 (1899)). One year later, the Continental Congress passed 

the Tory Act, which called for disarming those with "erroneous 

opinions, respecting the American cause."4 Also that year, 

Congress recommended that the colonies disarm those "who are 

notoriously disaffected to the cause of America." 4 Journals of 

the Continental Congress, 1774-1789 205 (1906). And, at a 

minimum, Massachusetts, Pennsylvania, New Jersey, North 

Carolina, and Virginia all heeded the call, disarming those 

disaffected with or unwilling to take an oath of allegiance to 

the American cause. Greenlee, supra at 264-65.

¶133 Massachusetts' responded likewise to Shays' Rebellion 

a decade later. Beginning in August 1786, armed bands of 

western Bay Staters revolted against the federal government, 

attacking government properties and, on February 2, 1787, 

engaging a Massachusetts militia in a military confrontation. 

Id. at 268-69. In response to the violent rebellion, 

Massachusetts placed a variety of restrictions on those 

involved, including dispossession of their firearms for three 

years. 1 Private and Special Statutes of the Commonwealth of 

Massachusetts from 1780-1805 145-47 (1805). Notably, the law 

provided that arms given up be kept safe "in order that they may 

 

4 4 Journals of the Continental Congress, 1775-1789 18-22 

(1906); https://www.loc.gov/resource/bdsdcc.00801/?st=text.
No. 2018AP594-CR.bh

13

be returned to the person or persons who delivered the same, at 

the expiration of the said term of three years." Id. at 147. 

The response to Shays' Rebellion epitomized the type of 

dispossession laws that existed during the Founding Era. They 

were aimed at those considered dangerous to the government 

during a time of war, and to a more limited extent, those 

considered dangerous to society.

¶134 Moving forward in time, the Reconstruction Era 

unsurprisingly reflects the prejudices of the age; most arms 

regulations targeted slaves and freedmen. At a minimum, 

Mississippi, Indiana, Maryland, Kentucky, North Carolina, and 

Delaware adopted such discriminatory laws. Greenlee, supra at 

269 n.133. Before passage of the Fourteenth Amendment, Congress 

condemned these laws as a violation of the right to keep and 

bear arms in the Freedmen's Bureau Act and the Civil Rights Act, 

both of 1866. McDonald, 561 U.S. at 773-75. Ratification of 

the Fourteenth Amendment, which was widely viewed as 

constitutionalizing the Civil Rights Act of 1866, affirmed that 

states could not enact such discriminatory laws depriving 

persons of their constitutional rights. Id. at 775.

¶135 A Kansas law adopted in 1868, the same year the 

Fourteenth Amendment was ratified, is quite instructive. See

Vos, 393 Wis. 2d 38, ¶64 ("Early enactments following adoption 

of the constitution are appropriately given special weight. 

This is because these enactments are likely to reflect the 

original public meaning of the constitutional text." (citation 

omitted)). It provides:
No. 2018AP594-CR.bh

14

Any person who is not engaged in any legitimate 

business, any person under the influence of 

intoxicating drink, and any person who has ever borne 

arms against the government of the United States, who 

shall be found within the limits of this state 

carrying on his person a pistol, bowie-knife, dirk, or 

other deadly weapon, shall be subject to arrest upon 

charge of misdemeanor, and upon conviction shall be 

fined a sum not exceeding one hundred dollars, or by 

imprisonment in the county jail not exceeding three 

months, or both, at the discretion of the court.

2 General Statutes of the State of Kansas 353 (1897). This law 

prohibits carrying arms: (1) while "not engaged in legitimate 

business"; (2) while intoxicated; or (3) for any individual "who 

has ever borne arms against" the United States. The first two 

restrictions are temporarily imposed in circumstances where 

individuals pose a danger of engaging in arms-related violence. 

The third restriction focuses on those who could be considered a 

threat to rebel against the government because they had done so 

in the past.

¶136 Notably the Kansas law prohibited only the "carrying," 

or "bearing," of arms, and not their possession. See supra ¶15. 

Therefore, it did not prohibit keeping arms in defense of one's 

home. The law also did not prohibit long guns, so it was not a 

complete prohibition on carrying weapons. Greenlee, supra at 

271 (citing Parman v. Lemmon, 244 P. 232, 233 (Kan. 1926) 

(holding shotguns were not included in a similarly constructed 

statute)). 

¶137 Although more historical clarity would be welcome, the 

record sufficiently establishes three key propositions regarding 

the original meaning of the Second Amendment. First, possession 

of firearms for self-defense and protection of one's home as an 
No. 2018AP594-CR.bh

15

individual right was widely accepted as the core of the Second 

Amendment's protections. And the relative paucity of laws 

prohibiting the possession or carrying of arms shows that this 

fundamental right was subject to only narrow bands of 

restrictions. Second, in at least some circumstances, states 

could permissibly restrict the right to keep and bear arms among 

those posing a danger to take up arms against the government and 

those posing a danger of engaging in arms-related violence.5 

Third, states had some authority to protect against dangerous 

individuals by way of class-based arms restrictions, even when 

not everyone in the class posed a clear danger of putting their 

arms to violent use.

¶138 Instead of this relevant historical evidence, the 

majority relies in large part on Heller's declaration that its 

opinion was not meant to cast doubt about "longstanding 

prohibitions on the possession of firearms by felons," which 

were presumed lawful. 554 U.S. at 626-27. This statement 

reflects that Heller was limited in its reach, and at least 

suggests not all such laws would be unconstitutional. But it 

also does not mean all such laws are constitutional (that 

question is reserved), nor does it establish that these laws are 

 

5 In addition to the examples provided, see United States v. 

Sheldon, in 5 Transactions of the Supreme Court of the Territory 

of Michigan 337, 346 (W. Blume ed. 1940) ("The constitution of 

the United States also grants to the citizen the right to keep 

and bear arms. But the grant of this privilege cannot be 

construed into the right in him who keeps a gun to destroy his 

neighbor.").
No. 2018AP594-CR.bh

16

embedded into the original public meaning of the Second 

Amendment. 

¶139 To be sure, felon-dispossession laws laws have been on 

the books for some time. But these laws are of 20th century 

vintage; they do not date back to the 18th or 19th centuries——

the relevant time periods when the Second Amendment was 

ensconced as an individual constitutional right. See generally

C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 

Harv. J.L. & Pub. Pol'y 695 (2009) (examining the genesis of 

felon-dispossession laws). In fact, no historical evidence from 

the time the Second Amendment was adopted or incorporated 

against the states demonstrates broadscale dispossession of 

those who have committed certain crimes. Kanter v. Barr, 919 

F.3d 437, 454 (7th Cir. 2019) (Barrett, J., dissenting) ("[A]t 

least thus far, scholars have not been able to identify any such 

laws.").

¶140 The first felon-dispossession laws appeared in 1923, 

when New Hampshire, North Dakota, and California enacted laws 

forbidding felons from possessing pistols or revolvers. 

Greenlee, supra at 273 & n.160. In 1927, Rhode Island went a 

step further, barring those convicted of "a crime of violence" 

from possessing "any firearm." Id. at 274 (quoting 1927 R.I. 

Pub. Laws 257). The federal felon-dispossession law, meanwhile, 

was not enacted until the Federal Firearms Act of 1938, and even 

then it only applied to those who had committed certain violent 

crimes. Id. (citing Federal Firearms Act, ch. 850, §§ 1(6), 

2(f), 52 Stat. 1250, 1250-51 (1938)). It was not until a 1961 
No. 2018AP594-CR.bh

17

amendment to the Federal Firearms Act that federal law first 

prohibited all felons nationwide from possessing firearms 

regardless of their underlying felony. Marshall, supra at 698 

(citing An Act to Strengthen the Federal Firearms Act, Pub. L. 

No. 87-342, 75 Stat. 757 (1961)). Wisconsin's felondispossession law, meanwhile, dates back only to 1981. Ch. 141, 

Laws of 1981. 

¶141 Thus, the proliferation of these laws in the last 

century——far removed from the time the Second Amendment was 

enshrined in the Constitution and incorporated against the 

states——does not support the notion that these laws were 

understood to be permissible under the historic preexisting 

right to keep and bear arms. Such laws may be common today, but 

they do not enlighten the original public meaning of the Second 

Amendment. 

¶142 Moreover, even if such a law had existed when the

Second and Fourteenth Amendments were ratified, it is unclear 

how much help that would be. This is because the definition of 

a "felon" has greatly expanded since the Founding Era. See

Kanter, 919 F.3d at 458-62 (Barrett, J., dissenting). In 1791, 

felonies were a narrow subset of crimes generally involving 

violence, many of which warranted the death penalty. Id. at 

459. In contrast, today a person can become a felon for 

possessing certain fish illegally, falsifying a boat title, tax 

fraud, trafficking SNAP benefits, second offense dialing 911 for 

a nonexistent emergency, adultery, and perjury, just to name a 
No. 2018AP594-CR.bh

18

few.6 This reality seems to undercut any useful comparisons 

between the treatment of felons in 1791 and today. But again, 

the historical record reveals no evidence from the Founding or 

Reconstruction Eras of the kind of broad felon-dispossession law 

like the one here.

¶143 Some have justified these laws by applying a so-called 

"unvirtuous citizenry" theory to the Second Amendment. See

Greenlee, supra at 275-85. But this lacks any sound basis in 

historical fact, at least insofar as it would apply to today's 

felon-dispossession laws. 

¶144 This theory is based on the accurate premise that 

founding-era felons could be disqualified from exercising 

certain civic rights because those rights belonged only to 

virtuous citizens. See Thomas M. Cooley, A Treatise on the 

Constitutional Limitations 29 (1st ed. 1868) (noting that 

certain groups including "the idiot, the lunatic, and the felon, 

on obvious grounds," were "almost universally excluded" from 

exercising certain civic rights). The problem with extending 

this theory to the Second Amendment, however, is that the right 

to keep and bear arms is not a "civic right" as that term was 

understood at the founding. "Civic rights" were understood to 

be just that——rights related to the civic space, i.e., the 

community. They included "individual rights that 'require[] 

citizens to act in a collective manner for distinctly public 

purposes.'" Kanter, 919 F.3d at 462 (Barrett, J., dissenting) 

 

6 Wis. Stat. § 29.971(1)(c); § 30.80(3m); § 71.83(2)(b)(1); 

§ 946.92(3)(a); § 256.35(10)(a); § 944.16; § 946.31(1).
No. 2018AP594-CR.bh

19

(quoting Saul Cornell, A New Paradigm for the Second Amendment, 

22 Law & Hist. Rev. 161, 165 (2004) (alteration in original)). 

Put differently, civic rights were those rights that empowered 

individuals to participate in the enterprise of self-governance—

—for example, the right to vote and to serve on juries. Id. 

Although these civic rights are "held by individuals," they are 

exercised "as part of the collective enterprise[s]" of selfgovernance or administration of justice. Id.

¶145 "Heller, however, expressly rejects the argument that 

the Second Amendment protects a purely civic right"; it protects 

a personal, individual right. Id. at 463 (citing Heller, 554 

U.S. at 595 ("[T]he Second Amendment confer[s] an individual 

right to keep and bear arms.")). Because the right to keep and 

bear arms is not a civic right, it was not one of the rights 

that could historically be withdrawn from unvirtuous citizens. 

Indeed, there is "no historical evidence on the public meaning 

of the right to keep and bear arms indicating that 

'virtuousness' was a limitation on one's qualification for the 

right——contemporary insistence to the contrary falls somewhere 

between guesswork and ipse dixit." Binderup v. Att'y Gen. U.S., 

836 F.3d 336, 372 (3d Cir. 2016) (en banc) (Hardiman, J., 

concurring). In short, nothing in the text or history of the 

Second Amendment suggests the right to keep and bear arms could 

be removed by the government because the government deemed 

certain kinds of people unvirtuous.
No. 2018AP594-CR.bh

20

¶146 Putting all this together, the historical record 

reveals the following regarding the original public meaning of 

the Second Amendment: 

 The Second Amendment protects an individual right to 

keep and bear arms, especially in the defense of one's 

home; 

 The government nevertheless was understood to have 

some ability to dispossess those who posed a danger of 

engaging in arms-related violence, often due to the 

risk of rebellion against the government;

 The government had some flexibility to disarm classes 

of people that posed a high risk of engaging in armsrelated violence, even if individuals within that 

group might themselves not pose that danger; and

 No evidence supports the notion that felondispossession laws of the type at issue here are 

"longstanding" in the sense that they were 

contemplated when the right to keep and bear arms was 

safeguarded in the Constitution.

¶147 With this history in mind, we turn to the task of 

determining what legal framework or test best effectuates the 

Second Amendment's original public meaning.

D. An Implementing Doctrine

¶148 The application of these principles to the case before 

us requires some additional work. We need some judicially 

enforceable legal framework, or implementing doctrine, to 
No. 2018AP594-CR.bh

21

effectuate the constitutional provision's original public 

meaning. See supra ¶¶11-12.

¶149 For better or for worse, both federal courts and this 

court have created and adopted a tiers of scrutiny approach for 

evaluating some types of constitutional claims, especially those 

dealing with fundamental rights. Courts typically employ three 

tiers of judicial scrutiny: rational basis, intermediate 

scrutiny, and strict scrutiny——although these tiers sometimes 

work more like a sliding scale. Some have criticized this 

approach, not without merit.7 But it has the virtue of putting

the State to its proof when government attempts to regulate in 

areas the Constitution generally places outside the permissible 

bounds of regulation. While a better analytical tool may be 

devised, I accept this general construct in this case as a 

reasonable approach to the tricky problem of applying the text 

of the Constitution to various kinds of regulations touching the 

Second Amendment.

¶150 The United States Supreme Court has described the 

right to keep and bear arms as "among those fundamental rights 

necessary to our system of ordered liberty." McDonald, 561 U.S. 

at 778. This is consistent with its inclusion in the 

Constitution alongside other basic, pre-existing rights, 

including the freedoms of speech and religion. Generally, when 

the government restricts the exercise of rights deemed 

 

7 E.g., R. George Wright, What if All the Levels of 

Constitutional Scrutiny Were Completely Abandoned?, 45 U. Mem. 

L. Rev. 165 (2014) (advocating for abolition of the tiers of 

scrutiny).
No. 2018AP594-CR.bh

22

fundamental, courts apply strict scrutiny. See, e.g., State v. 

Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995). To survive a 

challenge, the "statute must further a compelling state interest 

and be narrowly tailored to serve that interest." Id. This 

burden rests on the state, not the challenger, and will rarely 

succeed.

¶151 An honest evaluation of the historical record 

regarding the Second Amendment, however, suggests strict 

scrutiny may not be appropriate for all regulations affecting 

the right it protects. We must match the doctrine to the scope 

of the right, and do so fairly. Prohibiting the possession of 

firearms altogether (especially in the home, as with Roundtree), 

cuts on its face right to the core of the Second Amendment 

right. That said, as best as I can discern from the historical 

evidence now available and summarized above, the state was 

nevertheless understood to have some authority to dispossess 

those who posed a danger of engaging in arms-related violence, 

and to do so in ways that were at least somewhat over- or underinclusive.

¶152 As explained above, in the early English tradition of 

protecting the right to keep and bear arms, the government 

dispossessed an entire class of citizens based on the fear they 

would take up arms in violent rebellion against the Protestant 

crown. Surely, not every member of that class was predisposed 

to violence against the government, yet the class as a whole was 

restricted. Similarly, during the Founding Era, states broadly 

dispossessed those unwilling to take an oath to support the 
No. 2018AP594-CR.bh

23

cause of independence or otherwise sympathetic to British rule. 

Surely not everyone dispossessed under those laws presented a 

danger to public safety. Even the 1868 Kansas law that 

dispossessed anyone "who has ever borne arms against the 

government of the United States" cannot be said to be narrowly 

tailored in the context of the Civil War's aftermath. Former 

confederate soldiers presumably comprised a not insignificant 

class of people in Kansas, many of whom no longer would have 

posed a significant risk of violence simply by virtue of their 

past war efforts on behalf of the Confederacy.

¶153 As a starting point, then, the individual right to 

keep and bear arms, especially for the protection of one's home, 

is a fundamental and individual right that should be treated as 

such. But where there is a significant risk of arms-related 

violence, government retains some authority to restrict this 

right in ways that are not narrowly drawn; it may be over- or 

under-inclusive. Even though restrictions on the individual and 

fundamental right to keep and bear arms should ordinarily be 

subject to the highest judicial scrutiny, where the risk of gunrelated violence is at stake, a slightly more deferential 

standard is appropriate and in keeping with the historical 

record.

¶154 Overly-generous deference to the government, however, 

would not be appropriate, especially since the text generally 

carves this right out as an impermissible area of government 

interference. The State must bear the burden in this context to 

show it is acting within constitutional limits, not the other 
No. 2018AP594-CR.bh

24

way around. When it comes to individuals who pose a danger of 

using a firearm to commit violence, however, strict scrutiny 

would seem to demand too much of the government in ways that do 

not capture the historical understanding of the right. A more 

appropriate analysis in this context is therefore a heightened 

scrutiny that still puts the government to its proof. Among the 

tools available, intermediate scrutiny best fits the bill.8

¶155 This approach has parallels in other areas of 

constitutional law. The Supreme Court applies intermediate 

scrutiny in some other circumstances where fundamental rights 

are implicated. In the First Amendment context, for example, 

the Court analyzes content-based restrictions on speech under 

strict scrutiny, but it applies a form of intermediate scrutiny 

to time, place, or manner regulations. Compare Texas v. 

Johnson, 491 U.S. 397, 412 (1989) (applying "the most exacting 

scrutiny" to a flag-burning statute) with United States v. 

O'Brien, 391 U.S. 367, 376-77 (1968) (applying intermediate 

scrutiny to uphold a defendant's conviction for burning a draft 

 

8 I endorse the majority of Justice Rebecca Bradley's 

dissent. However, I believe something less than strict scrutiny 

is more in keeping with the historical record——and therefore the 

original public meaning——for the type of restriction here. I 

also agree with the majority that our decision in Mayo v. 

Wisconsin Injured Patients and Families Compensation Fund, 2018 

WI 78, 383 Wis. 2d 1, 914 N.W.2d 678, is inapplicable. Whatever 

analytical framework this court applies to equal protection 

cases under the Wisconsin Constitution is not, in my view, 

relevant to the framework we should employ to a claim under the 

Second Amendment to the federal Constitution. The original 

public meaning inquiry should dictate the appropriate legal 

test, regardless of the tests this court has employed in 

analyzing cases under different constitutional provisions.
No. 2018AP594-CR.bh

25

card); McCullen v. Coakley, 573 U.S. 464, 486 (2014) (applying 

intermediate scrutiny to strike down a statute establishing 

"buffer zones" around facilities where abortions are performed).

¶156 Intermediate scrutiny places the burden on the State 

to show that the law at issue advances an important governmental 

interest and is substantially related to that interest. 

Gerhardt v. Estate of Moore, 150 Wis. 2d 563, 570-71, 441 

N.W.2d 734 (1989). Even when the governmental interest is 

important, a law survives intermediate scrutiny only if it "does 

not burden substantially more [protected activity] than 

necessary to further those interests." Turner Broad. Sys., Inc. 

v. FCC, 520 U.S. 180, 189 (1997). As now-Justice Barrett 

explained in her dissent in a case challenging this same 

Wisconsin law, the fit between the means and the ends must be a 

close one. Kanter 919 F.3d at 465 (Barrett, J., dissenting) 

("'[A] very strong public-interest justification and a close 

means-ends fit' is required before [the defendant] may be 

constitutionally subject to the United States and Wisconsin 

dispossession statutes.").

¶157 It's worth emphasizing again that the burden when 

applying intermediate scrutiny is on the State to prove that the 

restriction advances an important interest and is substantially 

related to that interest. State v. Baron, 2009 WI 58, ¶14, 318 

Wis. 2d 60, 769 N.W.2d 34. Every federal circuit to consider 

this matter agrees. See, e.g., Binderup, 836 F.3d at 353; Tyler 

v. Hillsdale Cnty. Sherriff's Dept., 837 F.3d 678, 693 (6th Cir. 

2016); Heller v. District of Columbia, 670 F.3d 1244, 1258 (D.C.
No. 2018AP594-CR.bh

26

Cir. 2011). As one court put it, "Strict and intermediate 

scrutiny (which we collectively refer to as 'heightened 

scrutiny' to distinguish them from the far less demanding 

rational-basis review) in effect set up a presumption of 

invalidity that the defendant must rebut." Hassan v. City of 

New York, 804 F.3d 277, 299 (3d Cir. 2015).

¶158 To summarize, where the government purports to act in 

ways the people have made clear in their constitution are 

outside the power granted, it is not the citizen who must show 

the government has acted unconstitutionally; it is the 

government that must demonstrate it has authority to do what it 

wishes. The Constitution reflects a presumption that government 

action in that zone is unlawful unless proven otherwise. The 

historic right to keep and bear arms is an individual and 

fundamental right. But the government has broader authority to 

restrict the right of those who would use arms for gun-related 

violence. Intermediate scrutiny——requiring a substantial 

connection to the important governmental interest——appears to 

best capture and secure the right in accordance with its 

original public meaning where government acts to protect against 

those who pose a danger of engaging in gun-related violence.
No. 2018AP594-CR.bh

27

II. APPLICATION

¶159 Roundtree challenges the constitutionality of 

Wisconsin's felon-dispossession law as applied to him.9 

Wisconsin Stat. § 941.29(1m)(a) provides: "Any person who 

possesses a firearm is guilty of a Class G felony if any of the 

following applies: (a) The person has been convicted of a 

felony in this state." "In this context, 'possess' . . . simply 

'means that the defendant knowingly had actual physical control 

of a firearm.'" State v. Black, 2001 WI 31, ¶19, 242 

Wis. 2d 126, 624 N.W.2d 363. Thus, for anyone convicted of a 

felony, § 941.29(1m)(a) operates as a lifetime ban on possessing 

firearms for self-defense, hunting, or any other ordinarily 

lawful purpose.

¶160 Roundtree brings two types of as-applied challenges. 

First, he argues that the State may not constitutionally 

dispossess him because the State has not shown that he 

personally poses a danger of engaging in gun-related violence. 

To support this challenge, Roundtree notes that his underlying 

felony, besides being nonviolent, occurred more than ten years 

ago, and that nothing he has done since suggests he poses any 

heightened risk of using a gun violently. But as we have 

discussed, the historical record suggests states may, consistent 

 

9 As we have explained before, "Challenges to the 

constitutionality of a statute are generally defined in two 

manners: as-applied and facial." Vos, 393 Wis. 2d 38, ¶37. 

Where "[a]s-applied challenges address a specific application of 

the statute against the challenging party," a facial challenge 

argues a statute "operates unconstitutionally in all 

applications." Id., ¶¶37-38.
No. 2018AP594-CR.bh

28

with the right secured by the Second Amendment, dispossess some 

people on a somewhat overbroad class-wide basis. This is so 

even if some individual members of the class demonstrate their 

personal characteristics are inconsistent with a propensity for 

violence. Moreover, the challenged law criminalizes firearm 

possession for committing a felony, not for any of Roundtree's 

personal characteristics or other actions. In other words, the 

State has charged Roundtree with the crime of illegally 

possessing a firearm on one basis only——his prior felony 

conviction. Therefore, a challenge focused on Roundtree's 

personal risk of danger is off the mark. 

¶161 Roundtree also argues the State may not dispossess him 

simply for belonging to either the class of people that 

committed any felony or the class of people that committed the 

same felony as him.

¶162 It is indisputable that public safety is a compelling 

governmental interest. See State v. Cole, 2003 WI 112, ¶23, 264 

Wis. 2d 520, 665 N.W.2d 328. This interest is also wellillustrated in the history of the Second Amendment. Wisconsin 

Stat. § 941.29(1m)(a) therefore advances an important government 

objective.

¶163 Thus, we turn to the second prong of the intermediate 

scrutiny analysis: whether a law that dispossesses all felons 

is substantially related to the government's interest in 

preventing gun-related violence. And again, it's worth 

repeating that the State bears the burden to show a close and 
No. 2018AP594-CR.bh

29

substantial connection exists. The State tries to meet its 

burden by pointing us to two studies.10 

¶164 The study most heavily relied on by the State is a 

2016 study on recidivism prepared by the Wisconsin Department of 

Corrections. See Joseph R. Tatar II & Megan Jones, Recidivism 

After Release from Prison, Wisconsin Dep't of Corrections 

(August 2016) (hereinafter "DOC Study"). In its analysis, that 

study grouped all offenses into four categories: violent 

offenses, property offenses, drug offenses, and public order 

offenses. Id. at 14. Relevant here, the public order offense 

category included failure to pay child support (120 days+) in 

addition to crimes like operating while intoxicated, bail 

jumping, and operating a vehicle to elude an officer. Id. The 

State primarily relies on the study's conclusion that for those 

who committed a prior public order offense, 21.4 percent of 

recidivists in that category went on to commit a violent offense 

within three years. The remaining 78.6 percent of crimes 

committed within three years by recidivists whose original 

incarceration was for a public order offense committed nonviolent offenses (either a drug offense, property offense, or 

another public order offense). Id.

 

10 The majority, in a block quote to the majority opinion in 

Kanter v. Barr, 919 F.3d 437, 449 (7th Cir. 2019), notes two 

additional studies that are not discussed by the State in its 

briefing. Majority op., ¶50. Because it is the State's burden 

to satisfy the substantial relationship prong of intermediate 

scrutiny, its failure to discuss these studies should preclude 

the majority's consideration of them. This court should not 

attempt to prove the State's case for it. 
No. 2018AP594-CR.bh

30

¶165 The State erroneously cites this study for a 

proposition it most certainly does not support. It 

characterizes the DOC Study as concluding that 21.4 percent of 

all those released after committing a public order offense went 

on to commit a violent offense. That's simply not what the 

study says, and it is an egregious error in light of its almost 

singular prominence in the State's effort to prove the requisite 

connection. This 21.4 percent is not the percentage of all 

public order offenders who, after release, committed violent 

crimes. Rather, it considers only those who committed another 

crime after committing a public order offense, and conveys the 

percentage of those public order offense recidivists who 

committed a violent crime. In other words, this 21.4 percent 

figure has nothing to do with, and makes no reference to, those 

who never recidivate after committing a public order offense. 

It should be obvious, then, that this statistic offers no 

assistance in establishing the relationship between past crime 

and a person's risk to commit gun-related violent crime in the 

future, which is the core inquiry of the intermediate scrutiny 

analysis.

¶166 The second study offered by the State surveys "5,923 

authorized purchasers of handguns in California in 1977," 3,128 

of whom had at least one prior misdemeanor conviction at the 

time of purchase. Garen J. Wintemute et al., Prior Misdemeanor 

Convictions as a Risk Factor for Later Violent and FirearmRelated Criminal Activity Among Authorized Purchasers of 

Handguns, 280 J. Am. Med. Ass'n 2083, 2083 (1998) (hereinafter 
No. 2018AP594-CR.bh

31

"Wintemute Study"). Specifically, the State points to that 

study's conclusion that "even handgun purchasers with only 1 

prior misdemeanor conviction and no convictions or offenses 

involving firearms or violence were nearly 5 times as likely as 

those with no prior criminal history to be charged with new 

offenses involving firearms or violence." Id. Consider me 

unsurprised that people with criminal records who purchase 

handguns are more likely to commit future crime than those 

without a criminal record. But this correlation hardly 

demonstrates the close and substantial relationship required to 

justify this law. While those with a prior criminal record are 

surely more likely to commit future crime, the vast majority of 

people in the study who had prior criminal records did not 

commit a new violent offense. And the State must demonstrate 

that dispossessing the entire class that it chose will 

substantially further the State's efforts to remediate the risk 

of gun-related violence.11 This study falls far short of 

demonstrating why those convicted of illegal possession of 

certain fish, tax fraud, or failure to pay child support should 

be dispossessed in the interest of preventing gun-related 

violent crime.

¶167 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 

 

11 Importantly, the Wintemute Study does not actually 

analyze felons as a class because generally, felons will not be 

authorized handgun purchasers.
No. 2018AP594-CR.bh

32

the mark. Playing this logic out further, suppose those who 

previously declared bankruptcy are modestly more likely to 

commit violent crime in the future?12 Or those who do not have a 

bachelor's degree by the time they are 25?13 How about those who 

were born out of wedlock,14 or who fall below the poverty line?15 

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.

 

12 Gercoline van Beek, Vivienne de Vogel & Dike van de 

Mheen, The Relationship Between Debt and Crime: A Systematic 

and Scoping Review, European J. of Probation, Oct. 2020, at 1 

(showing "a strong association between debt and crime whereby 

debt is a risk factor for crime").

13 Lance Lochner & Enrico Moretti, The Effect of Education 

on Crime: Evidence from Prison Inmates, Arrests, and SelfReports, 94 The Am. Econ. Rev. 155, 156-57 (2004) ("Instrumental 

variable estimates reveal a significant relationship between 

education and incarceration . . . .").

14 Todd D. Kendall & Robert Tamura, Unmarried Fertility, 

Crime, and Social Stigma, 53 J.L. & Econ. 185, 213 (2010) ("[A]n 

increase of 10 nonmarital births per 1,000 live births is 

associated with an increase in future murder and property crime 

rates between 2.4 and 4 percent.").

15 U.S. Dep't of Justice, NCJ 248384, Household Poverty and 

Nonfatal Violent Victimization, 2008-2012, 1 (2014) ("Persons in 

poor households had a higher rate of violence involving a 

firearm (3.5 per 1,000) compared to persons above the FPL (0.8-

2.5 per 1,000).").
No. 2018AP594-CR.bh

33

¶168 Including all felonies in Wis. Stat. § 941.29(1m)(a)'s 

reach, no matter how violent and no matter how serious, is 

"wildly overinclusive." Kanter, 919 F.3d at 466 (Barrett, J., 

dissenting). It is an extraordinarily broad class that lacks a 

substantial relationship to the harm it seeks to remedy. Id. 

The fit between means and ends must be close——not perfect, but 

close. The State's evidence is far from showing that 

dispossessing all felons forever bears a close or substantial 

relationship to remediating the danger of gun-related violence. 

¶169 If the class of all felons is too broad, perhaps the 

State could nonetheless show that criminalizing possession of 

firearms based on the particular underlying felony survives 

constitutional scrutiny. But the State does not even purport to 

argue that those who have failed to pay child support or 

committed other analogous crimes pose any risk of committing 

gun-related violence as a consequence of their underlying 

felony, nor do its studies support that conclusion. The State 

therefore fails to meet its burden of proof here as well.

¶170 The important goal of protecting against gun-related 

violence does not seem to be furthered by dispossessing those 

who have not committed a violent act with a gun, and indeed have 

not committed a violent act at all. The State does not meet 

this challenge head on; it has not met its burden to prove a 

close and substantial relationship between the means and ends of 

the prohibition. Accordingly, Roundtree's conviction for 

possession of a firearm, a criminal prohibition triggered 
No. 2018AP594-CR.bh

34

because he was convicted of failure to pay child support for 120 

days, violates the Second Amendment and is unconstitutional.

III. CONCLUSION

¶171 We are bound to interpret and apply the Constitution 

as written. A careful study of the history surrounding the 

right to keep and bear arms as protected by the Second Amendment 

demonstrates that while the right to keep arms in the home for 

self-defense is within the core of the right, some class-based 

restrictions on firearm possession are permissible to protect 

against the danger of gun-related violence. Felon-dispossession 

laws may be permissible under this historical protection, but 

only where the State shows the restriction substantially 

advances the State's interest in protecting against gun-related 

violence. Here, however, the State did not carry its burden to 

show that Wisconsin's dispossession law satisfies this standard 

as applied to Roundtree. Therefore, his conviction violates the 

Second Amendment. I respectfully dissent.
No. 2018AP594-CR.bh

1