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Heller in Wisconsin

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

Recently, the Eastern District of Wisconsin denied a felon’s motion to withdraw his guilty plea. Kenneth Robinson plead guilty to possession of a firearm as a felon. See Case. The motion stated that in light of District of Columbia v. Heller 128 S. Ct. 2783 (2008), the federal regulation of firearm possession by felons, 18 U.S.C. Sec. 922(g)(1), is unconstitutional as applied. The statute states, “it shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce any firearm or ammunition.”

The defendant, Mr. Robinson, argues that he can withdraw his guilty plea because his crime is no longer a crime. Mr. Robinson is incorrect. The statute remains valid on its face and as applied to Mr. Robinson.

Heller is parsimonious in application. The decision invalidated an absolute ban on handgun possession. The Supreme Court was careful to allow for reasonable regulation of the “new” individual right to keep and bear arms. Thus, the federal government lost the power to ban handgun possession but retained the power to regulate possession. The Eastern District of Wisconsin does a good job explaining the flaws in Mr. Robinson’s argument based on Heller. However, Mr. Robinson would be incorrect prior to Heller.

Even prior to Heller, Courts traditionally subjected laws regulating the right to keep and bear arms to a “reasonable regulation” standard of review. See Parker, 478 F.3d 370, 399 (D.C. Cir. 2007). Under this standard, courts should invalidate a gun law if it is arbitrary or so restrictive that it “eviscerates,” renders “nugatory,” or results in the effective “destruction of the right to bear arms.” See, e.g., State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

Such courts, applying a reasonableness standard, all recognized, “[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms.” State v. McAdams, 714 P.2d 1236, 1237 (Wyo.1986). Under this standard, courts traditionally upheld gun control laws in limited situations banning only: 1) a limited class of persons from possessing firearms i.e. felons and intoxicated persons; 2) particular types of firearms; 3) the carrying of concealed firearms outside of one’s home or office; and 4) the transportation of loaded firearms. See, e.g., Johnson, 497 F.2d at 550 (upholding a statute restricting felon access to firearms). As Parker explained, states may impose such “time, place, and manner restrictions” on the right to keep and bear arms because they are “presumably reasonable.” 478 F.3d at 399. The restrictions on the Second Amendment right are parallel to those imposed on First Amendment rights. See What Does D.C. v. Heller mean for *First* Amendment Rights.

It appears that Mr. Robinson has little recourse based on court precedent pre and post Heller. While the Supreme Court ruled that the right to keep and bear arms is an individual right, it did not deem the right absolute. Certain restrictions are allowed including those levied on Mr. Robinson.

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