Seventh Circuit unlikely to budge on gun ban for felons

(CN) —  A former serviceman on Thursday attempted to convince a dubious Seventh Circuit panel that he should be allowed to carry a gun despite his military conviction for delivering peyote — a felony for civilians in Wisconsin.

“Right now, a traveler driving through Wisconsin could wind up spending up to 10 years in prison simply by possessing a firearm because a Wisconsin prosecutor can imagine that a misdemeanor ‘would be a felony if committed in this state,’” plaintiff Kenneth Karwacki said in a brief. “This is wrong. This is unconstitutional.”

Wisconsin law prohibits anyone convicted of a crime in another state from possessing a firearm possession if the crime is a felony in the Dairy State. A court-martial in another state convicted Karwacki of peyote delivery by a court martial — a misdemeanor punishable by discharge for bad conduct where it occurred, but a class E felony in Wisconsin punishable by up to 15 years in prison.

As such, his application for a concealed carry permit to the Wisconsin Department of Justice was denied. Karwacki sued state Attorney General Josh Kaul in the Eastern District of Wisconsin, claiming the department violated his Second Amendment rights because he was only convicted of a misdemeanor.

The lower court disagreed and dismissed the complaint.

On Thursday, Karwacki renewed his arguments before a skeptical Seventh Circuit panel that seemed uninterested in upending precedent on disarming violent offenders.

Karwacki's attorney William Sulton got off to a rocky start by arguing the charges weren’t violent, and that the context of the crime should be considered.

“You seem to be saying this wasn’t that bad of a crime, he was just handing out peyote at a party or something,” U.S. Circuit Judge Michael Scudder Jr., a Donald Trump appointee, said. “But we can’t draw lines like that. It’s drug distribution, which in Wisconsin is a felony.”

Sulton also suggested the law was arbitrarily applied to his client because he was convicted out of state, and that the Justice Department’s denial of his concealed carry application lacked explanation.

However, the panel pointed out that the denial was based on a clearly written statute. Assistant Attorney General Aaron Bibb returned to this point during his response to add that there is no misdemeanor delivery of peyote in the dairy state.

“It’s a felony. Full stop,” Bibb said.

U.S. Circuit Judge Frank Easterbrook, a Ronald Reagan appointee, was surprised to hear that Wisconsin classified peyote as a narcotic, exclaiming loudly that it's a hallucinogen.

“Lacking personal experience in this area, I’ll defer to your experience — or your knowledge, sir,” Sulton said in reply, earning laughter from the panel.

The context of Karwacki’s conviction was not included in the appellate record, but it was suggested during Thursday’s oral arguments that he was distributing the drug to fellow service members at a party.

Sulton argued that this should be treated less severely than if he had distributed another drug, even positing to Scudder that drug distribution should not come with a permanent ban on gun ownership.

“A Wisconsin resident charged with drug delivery could plead down to a misdemeanor and walk out with a loaded gun, no questions asked,” Sulton said.

To make laws inhibiting the Second Amendment, lawmakers must demonstrate the law is consistent with the nation’s tradition of gun regulation. In this case, there is a historical link between drug trafficking and violence.

Wisconsin’s law at issue here is similar to a federal law which disallows gun possession by anyone convicted of a crime punishable by more than one year in prison, according to Bibb.

U.S. Circuit Judge Amy St. Eve, a George W. Bush appointee, questioned Sulton’s focus on the word “misdemeanor” in his argument when the law isn’t all that different from the federal law’s focus on jail time.

Sulton didn’t have a clear answer, except to reiterate that the context of the crime should matter. He also failed to develop an argument he made in his briefs about the full faith and credit clause of the U.S. Constitution.

The clause requires states to give full faith to the public acts, records and judicial proceedings of other states, which Sulton argued in his brief Wisconsin does not do. In his view, a misdemeanor in Illinois should be a misdemeanor in Wisconsin.

But as Bibb pointed out Thursday, the clause doesn’t require Wisconsin to adopt the laws of other states or the penalties. The panel didn’t disagree.

Sulton said after arguments that this case has a political aspect because Karwacki's denied concealed carry permit was actually a renewal, which he neglected to include in his brief. He conceded that the panel did not appear swayed by his presentation.

"Your rights depend on what bureaucrat looks at your application," Sulton said after the hearing. "A different attorney general could look at his applications and come to a completely different conclusion and I don't think that is how the law should work."

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