Wisconsin DNR agrees to Repeal Unconstitutional Gun Ban near Water

The Wisconsin Institute for Law & Liberty has secured repeal of the unconstitutional law banning possession of firearms near almost all waters in Wisconsin.

In 1999, the Wisconsin Department of Natural Resources (DNR) created a rule banning the possession of firearms near the "waters, banks or shores that might be used for the purpose of fishing." The regulation was created with virtually no oversight, shortly after Wisconsin passed Section 25, Wisconsin's constitutional protection for the right to keep and bear arms. The regulation was seldom, if ever, enforced.

Because of a quirk in Wisconsin statutes, no one had to be arrested to challenge the regulation. Wisconsin statutes require a legal challenge to a regulation's legitimacy be filed before a person is arrested under the challenged rule. This seems an inversion of ordinary procedure for "standing" under the law. However, the Wisconsin statutory procedure is clear. In this case it facilitated the challenge to the unconstitutional regulation.

On June 6, 2024, the Wisconsin Institute for Law & Liberty, (WILL) filed a lawsuit demanding the Court permanently enjoin enforcement of the the offending code, § NR 20.05(2). The Acting Secretary of the Wisconsin Department of Natural Resources had 45 days to respond to the summons created as part of the legal challenge. By this correspondent's count, the deadline was July 22, 2024.

On July 22, 2024, Acting Secretary Steven Little of the Wisconsin DNR agreed to repeal the regulation as soon as possible. Obviously, negotiations between the Department of Natural Resources and the Wisconsin Institute for Law and Liberty had been ongoing behind the scenes.  From the stipulation and joint motion:

     IT IS HEREBY AGREED AND STIPULATED, by and between the parties, through their undersigned counsel, that:

    1. Acting Secretary Steven Little has notified the Plaintiff that he intends to repeal Wis. Admin. Code § NR 20.05(2)as soon as practicable and without delay.He hopes to successfully effect the repeal through the expedited repeal process. However, should that process fail for any reason, he commits to pursuing the repeal through the full, formal repeal process.

2. In exchange, Travis Kobs agrees to dismiss his complaint upon the completion of the repeal process set forth in paragraph 1. Mr. Kobs will notify this Court within two business days of the repeal and file a voluntary dismissal within five business days of the repeal.

From the Wisconsin Institute for Law & Liberty (WILL):

WILL Associate Counsel, Skylar Croy, stated, “This action by the DNR properly restores the liberties provided by our Constitution to our client and thousands of Wisconsin fisherman. Mr. Kobs and the many law-abiding gun owners can once again exercise their constitutional right without fearing unlawful enforcement.”

WILL client, Travis Kobs, expressed, “Because of this effort, I can now lawfully protect myself by carrying a firearm while out on the water, fishing, boating, and camping. I am grateful for the work done by WILL and their team to bring this issue to the forefront.

Analysis:

Acting Director Steven Little could read the writing on the wall. The regulation was blatantly unconstitutional on its face. Almost certainly with the advice of counsel, he did the correct thing and agreed to repeal the regulation without engaging in a prolonged legal battle. It is unlikely the State of Wisconsin would have prevailed. The regulation had almost no political support.

This correspondent is surprised the far left administration of Wisconsin Governor Evers was able to overcome its institutional bias in favor of all restrictions on firearms and firearm ownership. It is likely law enforcement officials pointed out the offending regulation had no exemption for law enforcement to carry firearms near Wisconsin waters.

This sort of bloodless win does not go unnoticed by government officials. It serves as an example of how to avoid pointless and unnecessary legal battles. In the process, the restoration of rights protected by the Second Amendment becomes more and more mainstream.

 

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

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