State v. Bernabe Gonzalez

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 6, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP358-CR Cir. Ct. No. 2023CM1483

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

BERNABE GONZALEZ,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
ANDERSON M. GANSNER, Judge. Reversed and cause remanded for further
proceedings.

¶1 WHITE, C.J.1 The State appeals from the order of the circuit court
dismissing the State’s criminal complaint against Bernabe Gonzalez for going
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
No. 2024AP358-CR

armed with a dangerous weapon while under the influence of an intoxicant
contrary to WIS. STAT. § 941.20(1)(b). The court found that § 941.20(1)(b) was
unconstitutional as applied to Gonzalez. The State argues that the court erred in
granting Gonzalez’s motion to dismiss because § 941.20(1)(b) is constitutional.
We agree with the State and, for the following reasons, we reverse and remand for
further proceedings.

BACKGROUND2

¶2 On February 11, 2023, Gonzalez was pulled over by a Milwaukee
County Sheriff’s Deputy for running a red light and almost hitting a law
enforcement vehicle. While the deputy was speaking with Gonzalez, he smelled
alcohol and noticed that Gonzalez’s eyes were red and glassy. Gonzalez
subsequently admitted to having two drinks at a party. Upon taking field sobriety
tests, the deputy observed multiple clues for each test indicating that Gonzalez was
intoxicated. Gonzalez also provided a preliminary breath test which showed a
result of .104 g/100mL of ethanol in his blood. Gonzalez was then arrested for
operating a vehicle while intoxicated, as a first offense. During the post-arrest
inventory search of Gonzalez’s vehicle, the deputy found “a loaded black Smith
and Wesson 9mm handgun in the driver’s side door pocket,” for which Gonzalez
had a concealed carry weapons permit.

¶3 The State charged Gonzalez with the misdemeanor offense, going
armed with a dangerous weapon while under the influence of an intoxicant

2
We note that the facts surrounding Gonzalez’s arrest are undisputed and taken from the
criminal complaint which Gonzalez adopted for his motion to dismiss.

2
No. 2024AP358-CR

contrary to WIS. STAT. § 941.20(1)(b).3 Gonzalez filed a motion to dismiss
arguing that New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1
(2022) rendered § 941.20(1)(b) unconstitutional as applied to him. The State
responded, relying solely on State v. Christen, 2021 WI 39, 396 Wis. 2d 705, 958
N.W.2d 746—which was decided under the process that the United States
Supreme Court had rejected in Bruen. See id., 597 U.S. at 22-24. Gonzalez
replied, and a few days before the hearing, the State filed a letter which the court
construed as a sur-reply. In its sur-reply, the State emphasized the length of time
Wisconsin has had a prohibition on intoxicated firearm possession and how other,
more recent firearm laws were found constitutional.

¶4 At the hearing on the motion, Gonzalez initially objected to the
circuit court’s consideration of the State’s sur-reply, but withheld his argument
after the court informed him that its consideration of the sur-reply would not alter
its decision. The court went on to critique the quality of the State’s briefing and
question “how much work [the court] should do for the State when evaluating this
motion” before stating that it independently researched a number of historical
laws. The court then applied the Bruen test to the results of its research and went
through the State’s arguments before finding WIS. STAT. § 941.20(1)(b)
unconstitutional as applied to Gonzalez. The court thus granted Gonzalez’s
motion to dismiss.

¶5 The State then filed a “motion for reconsideration” pursuant to the
civil relief statute WIS. STAT. § 806.07(1)(h) and Koepsell’s Olde Popcorn

3
Under WIS. STAT. § 941.20(1)(b) “‘went armed’ means that a firearm must have been
on the defendant’s person or that a firearm must have been within the defendant’s reach.” WIS
JI—CRIMINAL 1321.

3
No. 2024AP358-CR

Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129,
275 Wis. 2d 397, 685 N.W.2d 853. In its brief, the State presented additional
persuasive authority and new arguments. In response, Gonzalez moved to strike
the motion as untimely and unjustified, and for sanctions against the State.

¶6 At the hearing on the motion for reconsideration, the circuit court
declined to strike the motion. The court assumed that WIS. STAT. § 806.07(1)(h)
applied to this criminal case and construed the State’s argument as “its failure to
present this additional authority earlier, or [the court’s] supposed unawareness of
these authorities, has created extraordinary circumstances in this matter.” The
court explained that “what the State does now is what I think it probably would
admit it should have done months ago, and that’s try to provide some actual
historical analogues.” Nevertheless after considering the State’s arguments, the
court denied the State’s motion for reconsideration.4

¶7 The State appeals.

DISCUSSION

¶8 On appeal the State argues: (1) that Gonzalez did not fall within the
class of people protected by the Second Amendment because he operated his
vehicle while intoxicated with his gun within arm’s reach; (2) that WIS. STAT.
§ 941.20(1)(b) is constitutional because historical laws establish a history and
tradition of regulating the possession of firearms by intoxicated people; and

4
Due to our conclusion reversing the circuit court’s underlying order which granted
Gonzalez’s motion to dismiss, we do not address the parties’ arguments regarding the court’s
order denying the State’s motion for reconsideration. See Maryland Arms Ltd. P’ship v.
Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 (“Typically, an appellate court
should decide cases on the narrowest possible grounds.”)

4
No. 2024AP358-CR

(3) that § 941.20(1)(b) is constitutional because it is analogous to modern laws
restricting firearm ownership of felons and the mentally ill.

¶9 As threshold issues, Gonzalez argues that the State forfeited “every
argument” it makes on appeal and that none of the historical laws the State relies
on should be considered because the circuit court first uncovered them through its
independent research which impermissibly assumed the State’s burden. We take
each argument in turn starting with forfeiture before addressing the substantive
issues.

¶10 “Forfeiture is the failure to make the timely assertion of a right.”
State v. Counihan, 2020 WI 12, ¶25, 390 Wis. 2d 172, 938 N.W.2d 530. “It is a
fundamental principle of appellate review that issues must be preserved at the
circuit court. Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on appeal.” State v.
Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. One of the
benefits of the forfeiture rule is that it “gives the parties and the circuit court notice
of an issue and a fair opportunity to address the objection.” Counihan, 390
Wis. 2d 172, ¶27. Nevertheless, “[t]he forfeiture rule is a rule of judicial
administration, and thus a reviewing court may disregard a forfeiture and address
the merits of an unpreserved issue in an appropriate case.” Id. “An exception to
[the forfeiture] rule is usually made only when the new issue raised is a question
of law, the parties have thoroughly briefed the issue, and there are no disputed
issues of fact regarding the new issue.” State v. Bodoh, 226 Wis. 2d 718, 737, 595
N.W.2d 330 (1999).

¶11 We decline to apply the forfeiture rule to the State’s arguments here.
The constitutionality of a statute is a legal question, State v. VanderGalien, 2024

5
No. 2024AP358-CR

WI App 4, ¶19, 410 Wis. 2d 517, 2 N.W.3d 774; there are no undisputed facts; and
the parties fully briefed the issues. See Bodoh, 226 Wis. 2d at 737. Furthermore,
the circuit court considered the State’s arguments. Thus, there is no risk of
“blindsiding” the circuit court with a reversal based on a theory that did not
originate in its forum. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d
897 (Ct. App. 1995).5

¶12 Gonzalez also argues that we should disregard many of the historical
laws that the State relies on as analogues because the circuit court first uncovered
them through its own independent research which impermissibly assumed the
State’s burden and developed the State’s arguments for it.

¶13 Gonzalez is correct regarding how “[t]he opinions of our appellate
courts are replete with precatory admonitions that trial judges must not function as
partisans or advocates … or betray bias or prejudice[.]” State v. Carprue, 2004
WI 111, ¶44, 274 Wis. 2d 656, 683 N.W.2d 31. However, conducting
independent research does not in itself show bias or render the court an advocate
for one party. “A competent judge is not so naive to believe that briefs will
always summarize the relevant facts and the applicable law in an accurate fashion.
A competent judge uses the briefs as a starting line and not the finish line for his
or her own independent research.” Camacho v. Trimble Irrevocable Tr., 2008 WI
App 112, ¶7, 313 Wis. 2d 272, 756 N.W.2d 596. Under Bruen, historical laws are

5
We caution that our consideration of the State’s arguments here should not be
interpreted as an endorsement of how it litigated this case before the circuit court. Attorneys are
expected to diligently prepare for hearings and should not rely on motions for reconsideration as
vehicles to raise new arguments that could have been presented during the court’s consideration
of the underlying motion. See State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d
727; Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114, ¶23, 275 Wis. 2d 171, 684
N.W.2d 141.

6
No. 2024AP358-CR

relevant to the constitutionality of modern firearm regulations. See id., 597 U.S. at
28-29. “Selecting the correct statement of the law to apply to the facts is not
showing preference for one party over the other; rather, it is the court fulfilling its
duty.” Camacho, 313 Wis. 2d 272, ¶10.

¶14 Gonzalez also points to a statement by the circuit court questioning
“how much work [the court] should do for the State when evaluating this motion”
to support that the court assumed the State’s burden. However, in context it is
clear that the court was criticizing the lack of legal research done by the State and
was not explaining that it would assume the State’s burden. The court researched
potentially relevant historical laws regulating firearms, explained to the parties
what it had uncovered, and found that there were no historical laws analogous to
WIS. STAT. § 941.20(1)(b)—which supported Gonzalez’s position. The court was
under no obligation to simply accept Gonzalez’s legal research as complete
without doing some of its own simply because the State failed to brief the motion
as thoroughly as it could have.6 Thus, we conclude that the court committed no
error in conducting its own legal research.

¶15 Turning to the merits, the State argues that WIS. STAT.
§ 941.20(1)(b) is constitutional as applied to Gonzalez under Bruen.

¶16 We review the constitutionality of a statute independently.
VanderGalien, 410 Wis. 2d 517, ¶19. “[I]n an as-applied challenge, we assess the
merits of the challenge by considering the facts of the particular case in front of us

6
Similarly, in Bruen the Supreme Court noted that it was not obligated to independently
search for historical support to sustain New York’s statutory scheme; however, it nevertheless
provided “a short review of the public discourse surrounding Reconstruction[.]” New York State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 60 (2022).

7
No. 2024AP358-CR

not hypothetical facts in other situations.” Christen, 396 Wis. 2d 705, ¶32
(citation omitted).

¶17 Recently, how courts analyze the constitutionality of firearm
regulations under the Second Amendment has changed in the wake of the Supreme
Court’s Bruen decision. The Court rejected the two-part approach that was
previously used and clarified that the proper test is the following:

[W]hen the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively
protects that conduct. To justify its regulation, the
government may not simply posit that the regulation
promotes an important interest. Rather, the government
must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation. Only if a
firearm regulation is consistent with this Nation’s historical
tradition may a court conclude that the individual’s conduct
falls outside the Second Amendment’s “unqualified
command.”

Bruen, 597 U.S. at 17 (citation omitted).

¶18 The Court explained that deciding whether a statute complies with
the Second Amendment involves “reasoning by analogy” to “determin[e] whether
a historical regulation is a proper analogue for a distinctly modern firearm
regulation[.]” Id. at 28-29. This “analogical reasoning requires only that the
government identify a well-established and representative historical analogue, not
a historical twin” or a “dead ringer.” Id. at 30; United States v. Rahimi, 602 U.S.
680, 692 (2024).7 “[T]he appropriate analysis involves considering whether the

7
We note that United States v. Rahimi, 602 U.S. 680 (2024) was decided prior to the
completion of briefing for this case. Gonzalez addressed Rahimi’s relevance to this case in a
June 25, 2024 letter submitted to this court pursuant to WIS. STAT. RULE 809.19(10). The State
addressed Rahimi in its reply brief.

8
No. 2024AP358-CR

challenged regulation is consistent with the principles that underpin [the Nation’s]
regulatory tradition.” Rahimi, 602 U.S. at 692.

¶19 The State argues that Gonzalez does not fall within the class of
people protected by the Second Amendment because he operated his vehicle while
intoxicated with his gun within arm’s reach. In response, Gonzalez argues that the
State’s argument is undeveloped. We agree with Gonzalez.

¶20 The State relies on Heller’s discussion of “the people” protected
under the Second Amendment and the Court’s characterization of the Second
Amendment right as “the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 580,
635 (2008); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265
(1990) (explaining that “the people” referred to in the Second Amendment is a
term of art). The State also relies on United States v. Grinage, No. SA-21-CR-
00399-JKP, 2022 WL 17420390 (W.D. Tex. Dec. 5, 2022) for support.8 In
Grinage the federal district court held that felons are not part of “the people” by
applying the Bruen test to the question of whether excluding felons from the
Second Amendment “is firmly rooted in this Nation’s historical tradition, at
common law[.]” Grinage, No. SA-21-CR-00399-JKP at *7.

¶21 Here, unlike the government in Grinage, the State makes no attempt
to establish that excluding people like Gonzalez—who committed crimes akin to

8
The State further cites to Carpio-Leon, a pre-Bruen 4th Circuit case, which held that
“the Second Amendment does not extend to provide protection to illegal aliens, because illegal
aliens are not law-abiding members of the political community and aliens who have entered the
United States unlawfully have no more rights under the Second Amendment than do aliens
outside of the United States seeking admittance.” United States v. Carpio-Leon, 701 F.3d 974,
975 (4th Cir. 2012).

9
No. 2024AP358-CR

operating a vehicle while intoxicated—from the protection of the Second
Amendment was rooted in this Nation’s history and tradition as required by
Bruen. See id., 597 U.S. at 17, 19-20 (confirming that Heller supports an
approach that “beg[ins] with a ‘textual analysis’ focused on the ‘normal and
ordinary’ meaning of the Second Amendment’s language” that is then “confirmed
by the historical background of the Second Amendment.” (citation omitted)).

¶22 Furthermore, the State’s reliance on the federal district court’s
analysis in Grinage is not sufficient to support its argument. Grinage only held
that our history and tradition supports excluding convicted felons from the
protections of the Second Amendment. It is one thing for a convicted felon to fall
out of the class of people protected by the Second Amendment. It is an entirely
more expansive proposition to conclude that a person in the process of committing
a traffic violation is automatically excluded from the protection of the Second
Amendment. The State fails to adequately develop such an argument; therefore,
we do not discuss it further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992).

¶23 The State also argues that WIS. STAT. § 941.20(1)(b) is consistent
with our history and tradition of prohibiting the possession of firearms by
intoxicated people. The State relies on a number of historical regulations
involving firearms and alcohol from different time periods to establish this
tradition.

¶24 For the 17th century, the State points to a Virginia law which
prohibited “shoot[ing] any gunns at drinkeing” except at marriages and funerals.
Acts of Mar. 10, 1655–56, Act 12, reprinted in 1 THE STATUTES AT LARGE;
BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION

10
No. 2024AP358-CR

OF THE LEGISLATURE IN THE YEAR 1619, at 401–02 (William Waller Hening ed.,

New York, R. & W. & G. Bartow 1823). The stated goal of this regulation was to
curb the misuse of firearms while intoxicated; specifically, to allow for the sound
of gunshots to be used an alarm and to preserve gunpowder.

¶25 For the 18th century, the State cites to a New York law which sought
to prevent “great Damages” and “many Mischiefs” by people “intoxicated with
Liquor” by prohibiting citizens from firing guns during New Year’s celebrations.
Act of Feb. 16, 1771, ch. 1501, reprinted in 5 THE COLONIAL LAWS OF NEW
YORK FROM THE YEAR 1664 TO THE REVOLUTION 244, 244–245 (Albany, James
B. Lyon 1894).

¶26 The State also cites to laws from Pennsylvania, Connecticut, and
Rhode Island which penalized the possession of firearms by intoxicated militia
members. See Act of March 17, 1777, arts. 9-10, reprinted in 2 MILITARY
OBLIGATION: THE AMERICAN TRADITION, pt. 11, at 38 (Arthur Vollmer ed., 1947)
(penalizing under Pennsylvania law “any officer or private man found drunk when
under arms[.]”); Act of Mar. 20, 1780, ch. 902, § 45, reprinted in 2 MILITARY
OBLIGATION, pt. 11, at 97 (stating that under Pennsylvania law “if any non-
commissioned officer or private shall … be found drunk … he shall be
disarmed[.]); Act of May 2, 1775, art. 19, reprinted in 2 MILITARY OBLIGATION,
pt. 2, at 188 (penalizing, under Connecticut law, militia members “found
drunk[.]”); Act of January 1844, § 1, reprinted in PUBLIC LAWS OF THE STATE OF
RHODE-ISLAND AND PROVIDENCE PLANTATIONS, at 503, (Providence, Knowles &
Vose 1844) (stating a Rhode Island law that excluded “common drunkards” from
serving in the militia).

11
No. 2024AP358-CR

¶27 For the 19th and early 20th century, the State relies on laws
prohibiting the possession of firearms while under the influence of alcohol,
including Wisconsin’s first incarnation of a law like WIS. STAT. § 941.20(1)(b).
See 1883 Wis. Laws, ch. 329, § 3 (“It shall be unlawful for any person in a state of
intoxication, to go armed with any pistol or revolver.”); 1867 Kan. Laws, ch. 12,
§ 1 (“[A]ny person under the influence of intoxicating drink, … carrying on his
person a pistol, bowie-knife, dirk, or other deadly weapon, shall be subject to
arrest upon charge of misdemeanor[.]”); MO. REV. STAT. ch. 24, § 1274 (1879)
(“If any person … shall have or carry any such weapon upon or about his person
when intoxicated or under the influence of intoxicating drinks … he shall, upon
conviction, be punished[.]”);OKLA. STAT. art. 47, § 4 (1890) (“[A]ny public
officer be found carrying such arms while under the influence of intoxicating
drinks, he shall be deemed guilty of a violation of this article as though he were a
private person.”); H.B. 62, § 1, 10th Leg., Reg. Sess. (Idaho 1909) (prohibiting
any intoxicated person from having or carrying “any dirk, dirk knife, bowie knife,
dagger, slung shot, pistol, revolver, gun or any other deadly or dangerous
weapon[.]”)

¶28 Gonzalez argues that the historical laws the State relies on are not
similar enough to WIS. STAT. § 941.20(1)(b) to establish a relevant regulatory
tradition. Specifically, he notes that Virginia’s and New York’s laws only
prohibited firing weapons, not possessing them, and that New York’s law was
limited in time. Gonzalez also takes issue with the laws regulating militia
members and argues that regulations applicable only to on-duty militia members
are not relevant to the constitutionality of § 941.20(1)(b) which is applicable to the
general public.

12
No. 2024AP358-CR

¶29 “[T]he Second Amendment permits more than just those regulations
identical to ones that could be found in 1791.” Rahimi, 602 U.S. at 691-92. The
State is not required to produce historical laws that are “a ‘dead ringer’ or a
‘historical twin.’” Id. at 692 (citation omitted). “A court must ascertain whether
the new law is ‘relevantly similar’ to laws that our tradition is understood to
permit, ‘apply[ing] faithfully the balance struck by the founding generation to
modern circumstances.’” Id. (citation omitted; alteration in original). For
example, in Rahimi the government failed to identify a historical law “that
specifically disarmed domestic abusers, but it did not need to do so.” Id. at 704
(Sotomayor, J., concurring) (citation omitted). The Supreme Court concluded that
it was sufficient for the government to show that the law at issue was consistent
with the principles—demonstrated by historical surety and “going armed” laws—
of restricting firearm use to mitigate threats of physical violence which underpin
our regulatory tradition. Id. at 700, 704

¶30 We agree that many of the laws the State cites to are not identical to
§ 941.20(1)(b); however, these laws are relevantly similar and demonstrate a
historical tradition of restricting firearm use and possession to solve the problems
caused by intoxicated firearm use. Gonzalez also contends that the historical laws
cannot support prohibiting an intoxicated person from having firearms within
arm’s reach because only MO. REV. STAT. ch. 24, § 1274 (1879) and 1909 Id.
Laws, no. 62, § 1 could encompass that meaning. However, having a firearm
within arm’s reach is similar to physically possessing one, especially under the
circumstances of this case. Gonzalez did not merely happen to be near a firearm
while intoxicated, but rather he was in his vehicle with his firearm within arm’s
reach as he drove around while intoxicated. Given Gonzalez’s mobility and the

13
No. 2024AP358-CR

accessibility of his loaded firearm we fail to see how historical laws regarding the
physical possession of firearms are as inapposite as Gonzalez argues.

¶31 Finally, Gonzalez argues that the 19th and early 20th century laws
prohibiting possession of firearms by intoxicated people are too distant in time
from the founding of the United States to be instructive here. However, while the
Supreme Court in Bruen noted that the value of 19th and 20th century materials
was limited, it still recognized that they can be used to confirm what is already
thought to be established. Id., 597 U.S. at 36-37. Furthermore, the Court also
“acknowledge[d] that there is an ongoing scholarly debate on whether courts
should primarily rely on the prevailing understanding of an individual right when
the Fourteenth Amendment was ratified in 1868 when defining its scope (as well
as the scope of the right against the Federal Government).” Id. at 37-38. The
Court chose to not weigh in on this debate, leaving the question of how much
courts should rely on mid-19th century material an open one. Id.

¶32 Here, the State cited to laws from 1867, 1879, 1883, 1890, and 1909
that prohibit the possession of firearms while under the influence of alcohol. See
1867 Kan. Laws, ch. 12, § 1; MO. REV. STAT. ch. 24, § 1274 (1879); 1883 Wis.
Laws, ch. 329, § 3; OKLA. STAT. art. 47, § 4 (1890); H.B. 62, § 1, 10th Leg., Reg.
Sess. (Idaho 1909). These laws support that it was understood from the mid-19th
century to the early 20th century that the Second Amendment did not prevent

14
No. 2024AP358-CR

criminalizing intoxicated possession of firearms.9 Additionally, they confirm what
the State’s earlier historical laws suggest, that it is permissible under the Second
Amendment to regulate firearms to solve problems caused by intoxicated firearm
use. See also Christen, 396 Wis. 2d 705, ¶81 (Hagedorn, J., concurring)
(concluding “the founding-era historical record suggests, and the reconstruction-
era evidence confirms, that one way the government could curtail the reckless
handling of firearms was by criminalizing armed intoxication”).

¶33 Ultimately, WIS. STAT. § 941.20(1)(b) is relevantly similar to
historical laws because these laws all address a comparable problem—preventing
firearm misuse by intoxicated people—by regulating firearm use and possession.
Thus, the State has sufficiently established that § 941.20(1)(b) is consistent with

9
The State also points to State v. Shelby, 2 S.W. 468 (1886), in which the supreme court
of Missouri considered whether MO. REV. STAT. ch. 24, § 1274 (1883), prohibiting possession of
a deadly weapon while intoxicated, was constitutional under the Second Amendment. The court
concluded that “no good reason is seen why the legislature may not [regulate] with reference to
the condition of the person who carries such weapons…. The statute is designed to promote
personal security, and to check and put down lawlessness, and is thus in perfect harmony with the
constitution.” Id. at 469.

15
No. 2024AP358-CR

our national history and tradition of regulating firearms.10 Therefore, we conclude
that § 941.20(1)(b) is constitutional as applied to Gonzalez.11 See also Christen,
396 Wis. 2d 705, ¶81 (Hagedorn, J., concurring) (concluding based solely on
historical evidence that “laws forbidding armed intoxication do not violate the
Second Amendment right to keep and bear arms”).

CONCLUSION

¶34 We conclude WIS. STAT. § 941.20(1)(b) is constitutional as applied
to Gonzalez under Bruen. Accordingly, we reverse and remand for further
proceedings.

10
We note that we reach a similar conclusion regarding this Nation’s history and
tradition to that reached by the Fifth Circuit in United States v. Connelly, 117 F.4th 269, 281-82
(5th Cir. 2024). In Connelly, the Fifth Circuit considered whether 18 U.S.C. § 922(g)(3)—which
prohibited anyone who is an “unlawful user of or addicted to any controlled substance” from
owning firearms—was constitutional. Connelly, 117 F.4th at 272, 279-282. The government
argued that historical laws regulating the use and possession of firearms while intoxicated from
alcohol are analogous to § 922(g)(3). Connelly, 117 F.4th at 279, 282. For support, the
government relied on many of the same historical laws that the State relies on before this court.
Connelly, 117 F.4th at 280-281. The Fifth Circuit concluded that “[t]aken together, the statutes
provide support for banning the carry of firearms while actively intoxicated.” Connelly, 117
F.4th at 281 (emphasis omitted). Ultimately, it held that although § 922(g)(3) encompassed more
than just prohibiting intoxicated firearm possession, the statute was facially constitutional because
“our history and tradition of firearms regulation show that there are indeed some sets of
circumstances where § 922(g)(3) would be valid, such as banning presently intoxicated persons
from carrying weapons.” Connelly, 117 F.4th at 282; see also Antonyuk v. James, 120 F.4th
941, 1029-30 (2d Cir. 2024) (concluding that “historical analogues establish a consistent and
representative tradition of regulating access to firearms by people with impaired self-control or
judgment, specifically those who are intoxicated”).
11
Due to our conclusion that WIS. STAT. § 941.20(1)(b) is constitutional because it is
consistent with our history and tradition of regulating firearms to prevent firearm misuse by
intoxicated people, we do not address the State’s alternate argument that § 941.20(1)(b) is
constitutional because it is analogous to modern laws restricting gun ownership of felons and the
mentally ill. See Maryland Arms, 326 Wis. 2d 300, ¶48 (“Typically, an appellate court should
decide cases on the narrowest possible grounds.”)

16
No. 2024AP358-CR

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

17