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In January, the Wisconsin Supreme Court upheld the constitutionality of a state statute permanently banning felons from possessing firearms, even as applied to those who commit non-violent, public order offenses.[1] Roughly 18 years ago, Leevan Roundtree was convicted in Wisconsin state court on three felony counts of failing to pay child support for more than 120 days, was sentenced to probation, and subsequently paid his past-due child support.[2] Wisconsin is one of a minority of states that do not provide felons with a mechanism for having their civil rights—including gun rights—restored, except by gubernatorial pardon.[3] Roundtree therefore effectively had his right to keep and bear arms permanently revoked.[4]

In 2015, police executing a search warrant at Roundtree’s home found a revolver and ammunition hidden under his bed. Roundtree admitted to purchasing the gun “from a kid on the street” but denied knowing that the gun had, in fact, been reported stolen in Texas. He ultimately pled guilty to unlawfully possessing a firearm as a convicted felon. Roundtree then filed for post-conviction relief, arguing that Wisconsin’s felon-in-possession statute was unconstitutional as applied to him. The Wisconsin Circuit Court denied the motion for relief on the grounds that Roundtree waived his constitutional challenge by pleading guilty, and the Wisconsin Court of Appeals affirmed on the grounds that Roundtree’s argument failed on the merits, regardless of whether he waived the constitutional argument.[5]  

In an opinion written by Justice Ann Bradley (joined by Chief Justice Patience Roggensack and Justices Annette Ziegler, Rebecca Dallet, and Jill Karofsky), the Wisconsin Supreme Court affirmed the Court of Appeals’ decision. It applied intermediate scrutiny, finding such an approach to be consistent with Heller’s statement that felon dispossession laws are “presumptively lawful” and reasoning that no federal court of appeals has applied strict scrutiny to similar challenges.[6] The majority assumed that felon-in-possession statutes burden conduct falling within the scope of the Second Amendment’s right but nevertheless concluded that Wisconsin’s statute is substantially related to the government’s important interest in addressing gun violence.[7]

In the majority’s view, failure to pay child support is a serious offense that, while not involving physical violence, deprives one’s children from “receiving basic necessities.”[8] The state has a reasonable interest in keeping firearms out of the hands of “those who have shown a willingness not only to break the law, but to commit a crime serious enough that the legislature has denominated it a felony.”[9] Moreover, the majority pointed to several studies that, in its view, support a conclusion that the past commission of non-violent felonies is related to the likelihood of future commission of violent crimes.[10]

Justice Dallet, joined by Justices Ann Bradley and Karofsky, wrote separately to express her opinion on the question—left unaddressed by the majority opinion—of whether Roundtree waived his as-applied constitutional challenge by pleading guilty.[11] In light of the United States Supreme Court’s holding in Class v. United States, she concluded that he did not.[12]

Justice Rebecca Bradley dissented, arguing that the majority applied an inappropriate standard of review for a blanket ban on a fundamental individual right. Heller, McDonald, and relevant state cases made clear that the right to keep and bear arms is fundamental, and under the Wisconsin Supreme Court’s own precedent, strict scrutiny must be applied to statutes that restrict a fundamental right.[13]

Additionally, she concluded that this blanket ban on a fundamental constitutional liberty for non-violent felons is inconsistent with the Second Amendment’s original public meaning. The state may have some historically recognized authority to revoke Second Amendment rights based on an individual’s dangerousness to society. But the Wisconsin statute predicates the loss of these rights on a felony conviction alone, while drawing “no distinction between an individual convicted of first-degree homicide and someone convicted of ‘failing to comply with any record-keeping requirement for fish.’”[14]

Justice Brian Hagedorn also dissented, but for different reasons. Like Justice Bradley, he found that the historical record failed to demonstrate state authority to broadly prohibit firearm possession based merely on the commission of a felony. He reasoned, however, that the same historical record supported “some [state] authority to dispossess those who posed a danger of engaging in arms-related violence, and to do so in ways that were both at least somewhat over- and under-inclusive.”[15] Intermediate scrutiny, therefore, is appropriate for analyzing felon dispossession laws.

Under intermediate scrutiny, the state failed to meet its burden of showing a substantial connection between dispossessing all felons—including those like Roundtree convicted of public order offenses—and the state’s interest in remediating gun violence. In Justice Hagedorn’s view, the majority completely misconstrued the two studies upon which it so heavily relied. One study failed to offer evidence establishing a relationship between past crime and a person’s risk of committing gun-related violent crime in the future. The second study showed only a modest correlation that “falls far short of demonstrating why those convicted of . . . failure to pay child support should be dispossessed in the interest of preventing future gun-related violent crime.”[16]

The Wisconsin Supreme Court has now joined a growing list of courts applying intermediate scrutiny to uphold lifetime bans on gun possession for non-violent felons.[17] Felon-in-possession cases will continue to present very real and pressing questions about the parameters of Heller’s “presumptively lawful” dicta.


[1] State v. Roundtree, 952 N.W.2d 765 (Wisc. 2021). “Public order offenses” can take on a variety of definitions, normally [and in this specific case] referring to non-violent offenses that interfere with society’s efficient operation or moral values. In Wisconsin, criminal offenses are lumped into one of four categories: violent, property, drug, and public order offenses. See Julie Grace, Wisconsin DOC Classifies as Violent Many More Offenses Than Does The FBI, Badger Institute (Sept. 20, 2020),

[2] Id. at 779 (Rebecca Grassl Bradley, J., dissenting).

[3] Wis. Stat. § 941.29(5). To compare current state laws regarding the restoration of firearm rights, see Restoration of Rights Project, 50-State Comparison: Loss & Restoration of Civil/Firearms Rights, Table 2, 3 (updated Jan. 4, 2021),

[4] The Restoration of Rights Project categorizes Wisconsin as having an “Infrequent/Uneven” pardoning frequency relative to other states. Restoration of Rights Project, 50-State Comparison: Pardon Policy & Practice, (last accessed Mar. 29, 2021). This characterization appears accurate—former Governor Jim Doyle issued more than 100 pardons in the final three months of his term in 2010, but his successor did not issue a single pardon over the next eight years. See Scott Bauer, Wisconsin Gov. Tony Evers Plans To Issue The State’s First Pardons In Nine Years, Milwaukee Journal Sentinel (updated Oct. 7, 2019 at 7:34 a.m. CT),

[5] See State v. Roundtree, No. 2018AP594–CR, unpublished slip op. (Wis. Ct. App. Apr. 4, 2019) (per curiam).

[6] State v. Roundtree, 952 N.W.2d at 771.

[7] Id. at 773.

[8] Id.

[9] Id. at 774.

[10] Id. at 774–75.

[11] Id. at 775 (Dallet, J., concurring).

[12] Id.

[13] Id. at 777–78 (referencing District of Columbia v. Heller, 554 U.S. 570, 581 (2008); Wisconsin Carry, Inc. v. City of Madison, 892 N.W.2d 233 (2017); Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 914 N.W.2d 678 (2018)).

[14] Id. at 779 (Bradley, J., dissenting).

[15] Id. at 800 (Hagedorn, J., dissenting).

[16] Id. at 804 (Hagedorn, J., dissenting).

[17] See, e.g., Folajtar v. Attorney General, 980 F.3d 897 (3d Cir. 2020); Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019); Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016); Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013). For an alternate view, see Amy Swearer, Longstanding and Presumptively Lawful? Heller’s Dicta vs. History and Dicta, Heritage Found. Legal Memorandum No. 238 (Nov. 5, 2018),