Earlier this month, in State v. Christen, the Wisconsin Supreme Court upheld against a Second Amendment challenge the defendant’s conviction for going armed while intoxicated. The decision was 6-1, with Judge Brian Hagedorn writing a concurring opinion and Judge Rebecca Grassl Bradley casting the lone dissenting vote. In December of last year, the Ohio Supreme Court upheld a similar law against carrying a firearm while intoxicated (also over a lone dissent).
Because Mitchell Christen’s conviction arose after a jury trial, the Court took the facts as presented at trial in assessing his Second Amendment challenge. Those facts suggested that Christen and some friends, including several roommates, had been drinking and began to argue. Christen, while in his own home, grabbed his gun. The relevant facts for the purpose of the challenge were that, as the Court said, “[t]he jury was called upon to weigh and consider the evidence and determined that Christen went armed, was intoxicated, and did not act in self-defense” (p.3). In Wisconsin, as in many other states, once the defendant put the defense at issue, the prosecution bore the burden of proving beyond a reasonable doubt that Christen did not act in self-defense. Because the jury found Christen guilty of violating the armed-while-intoxicated statute, it necessarily found that Christen did not act in self-defense.
On appeal, Christen “frame[d] the issue in terms of whether the consumption of a legal intoxicant voids the Second Amendment’s guarantee of the right to carry a firearm in self-defense” (p.11). He also urged the Court to reject the two-part framework used to decide Second Amendment challenges in the lower courts and apply a categorical approach. The Court rejected that framing and invitation and applied the typical two-part framework. At step one, the Court observed that there were historical laws barring going armed while intoxicated, but ultimately decided to assume that the law burdened conduct at step one and moved to step two. There, it applied intermediate scrutiny and concluded that the law satisfied that scrutiny. “Given that the jury concluded that Christen did not act in self-defense, it would be irreconcilable to conclude that his right to self-defense was somehow infringed.” (p.20).
In a separate concurring opinion, Judge Hagedorn criticized “the majority’s analysis [as] insufficiently rooted in the original public meaning of the Second Amendment,” but came to the same conclusion, resting “instead on the history of the Second Amendment right as understood when adopted and incorporated against the states” (p.1). Because the historical record served as the touchstone for Judge Hagedorn, he did the kind of inquiry that Judge Bybee recently undertook in the Young case in the 9th Circuit that upheld Hawaii’s open carry restrictions. I will also note that the concurring opinion is the first judicial decision (but not the last, I suspect!) to cite the Center’s Repository of Historical Gun Laws. As he acknowledged after citing a string of historical regulations, “These and other relevant laws can be accessed via the Repository of Historical Gun Laws at the Duke Center for Firearms Law. https://firearmslaw.duke.edu/repository/searchthe-repository/”(p.9). Judge Hagedorn concluded that the law was constitutional based on history alone. “In view of this historical evidence, we need not employ an additional implementing doctrine such as intermediate or strict scrutiny to conclude that the Wis. Stat. § 941.20(1)(b) is not contrary to the Second Amendment’s original public meaning in this context” (p.12). The majority had stressed that the jury rejected Christen’s claim of self-defense. But Judge Hagedorn did not rest on that conclusion. Indeed, curiously, he noted in a footnote: “As the dissent points out, the Second Amendment right to self-defense is more expansive than the statutory privilege. Even so, the facts of this case do not lead us to those waters.” (p.13n16). (Eric Ruben has carefully dissected the relationship between self-defense doctrine and the Heller right in this very good article.)
In her dissenting opinion, Judge Bradley rejected not just the majority’s conclusion but its mode of analysis. In a now increasingly common tactic, she strongly urged the adoption of the text, history, and tradition (THT) test that Justice Kavanaugh originated while on the D.C. Circuit. And she claimed the majority’s decision “erode[d] a fundamental freedom” (p.1). As she put it, “The fact that Christen did not act in self-defense has nothing to do with his Second Amendment right to go armed in case of confrontation” (p.1) (emphasis in original). Remarkably (to me at least), she set down a categorical rule: “a law prohibiting individuals from going armed while intoxicated cannot constitutionally be applied to an individual who goes armed in his own home” (p.2) (emphasis in original). The absolute breadth of that principle would seem to call into question not just laws restricting going armed while intoxicated, but also the myriad other restrictions on guns in homes. In her historical inquiry, Judge Bradley found no support for early legislative restrictions on carrying guns while intoxicated and therefore declared the current law unconstitutional.
To me, Judge Bradley’s opinion illustrates the problems with a THT-only approach. How could Judge Bradley uphold a ban on firearms on airplanes? Legislatures did not ban that at the Founding. Among other flaws, which scholars like Nelson Lund have pointed out, the THT-only test conflates the absence of a legislative record with the absence of legislative authority. (In the structural constitutional context, Leah Litman has argued against this kind of “antinovelty” principle that would, like THT, make new laws or regulatory arrangements automatically suspect.) There are many reasons a legislature might not have regulated conduct X at the Founding that have nothing to do with the constitutionality of regulating that conduct (e.g., that doing so would have been politically unpopular). With the Supreme Court’s decision to take up Corlett, we may soon see how many justices are on board with THT—and whether it’s enough to make that test the new normal.