Saturday, June 15, 2024

WI: Lawsuit Filed Against DNR for Unconstituitonal Rule on Firearms Possession

On June 6, 2024, the Wisconsin Institute for Law & Liberty filed a lawsuit against Steven Little in his official capacity as Acting Secretary of the Wisconsin Department of Natural Resources (DNR), demanding the Court temporarily and permanently enjoin enforcement of Wis. Admin. Code § NR 20.05(2).

Wis. Admin. Code § NR 20.05(2): “No person may...[p]ossess or control any firearm, gun or similar device at any time while on the waters, banks or shores that might be used for the purpose of fishing.”

The DNR regulation bans possession of firearms in a wide variety of locations and activities. It is in direct violation of the Second Amendment of the Constitution of the United States. Virtually any firearm "might be used for the purpose of fishing".  The lawsuit does not  claim a violation of the Wisconsin Section 25, although the regulation appears to violate Section 25 as well. Section 25:

 The people have the right to keep and bear arms for security, defense, hunting,
recreation, or any other lawful purpose. (Art. 1, § 25)

A far-left Wisconsin Supreme Court essentially nullified Section 25 in State v Hamden in 2003. The Wisconsin Supreme Court is currently back under the control of far-left judges, because of the election of 2022. This may explain the strategy of citing the U.S. Second Amendment, but not Section 25 of the Wisconsin Constitution.

The DNR regulation was created in 1999, during a rewrite of the regulations. It was claimed the re-write contained only "minor substantial changes". The ban on firearms in wide areas of the state was administratively created within a year of the passage of the Constitutional amendment, Section 25, which was passed in 1998.

In the history of fishing in Wisconsin, it was common to keep a "kit gun" in a tackle box as a means of subduing large fish as they were played out and brought close to the angler on a boat. My father often kept a Remington Rolling Block single shot .22 pistol for such a purpose. I possess that pistol today. In 1965 a campaign was started to demonize using pistols to dispatch large fish, particularly muskies, in Wisconsin. In 1966, the Wisconsin Conservation Commission created a rule making it illegal to use a firearm to shoot fish.  In 1999 the change was made as shown in the second paragraph. It was an enormously substantive change.

Instead of prohibiting the shooting of fish, the rule prohibited the possession of all firearms at anytime, over vast areas of Wisconsin. I have unknowingly violated the rule thousands of times over the intervening decades. A person cannot travel by boat or canoe, hunt along a river or lake, or hike on a lake shoreline or river bank, or cross a bridge over water, while possessing a firearm, without violating the rule.  The applicability of the Bruen decision by the Supreme Court of the United States is clear. There is no historical precedent before 1999.

The defendant in the lawsuit,  Acting Secretary Steven Little, has not yet responded to the summons, which was filed in Sheboygan County Circuit Court. The defendant has 45 days to respond.

Analysis: This case should be a clear and easy win. The flipping of the Wisconsin Supreme Court in the election of 2022 (millions of dollars were spent by ardent leftist to accomplish this), makes the outcome of the case less certain, at least at the Wisconsin Supreme Court level. While the Court was controlled by conservative judges, prosecutors were careful not to bring up cases involving Section 25. Given the gutting of Section 25 by a previous leftist dominated court, current leftist judges might claim the plaintiff has no standing because he has not been arrested or fined.

Wisconsin precedence holds a regulation must be challenged under a separate part of the law. The lawsuit uses this to show the current plaintiff has standing.

If this case goes to the Wisconsin Supreme Court, and the Wisconsin Court holds against the plaintiff, it could be appealed to the United States Supreme Court. This was the route taken in Caetano v Massachusetts. Only a few cases which appeal to the US Supreme Court are heard each year. If appealed the US Supreme Court, victory would be in serious doubt until the Court agreed to hear the case.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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