Legislature’s joint rules review committee suspends DNR gun rule

The Legislature’s Joint Committee for Review of Administrative Rules last week suspended a state Department of Natural Resources’ administrative rule that a conservative group said violated the Second Amendment and that the DNR itself conceded was inconsistent with state law.

On a 7-2 vote, the joint rules review committee (JCRAR) suspended the rule, which prohibited the possession of firearms at any time while on any waters, banks, or shores that might be used for fishing.

The conservative Wisconsin Institute for Law & Liberty (WILL) had filed a lawsuit last summer against the DNR on behalf of a Wisconsin resident, arguing that the rule was unconstitutional because it went beyond banning the use of firearms to fish — many states have similar laws or regulations — but banned the possession or control of “any firearm” that “might be used for the purpose of fishing.” 

Because all firearms could potentially be used for fishing, WILL argued, the rule effectively banned all firearms in large areas of the state. Fines for violations could be as high as $544.50 when court costs were included, WILL stated.  

After filing the lawsuit, the DNR acknowledged that the rule was inconsistent with the law and would work to repeal it. WILL halted the lawsuit until January 1 to give the agency time to do so.

The JCRAR followed up this week by formally suspending the rule.

Speaking to the JCRAR this week, WILL associate legal counsel Skylar Croy explained why the rule violated the right to keep and bear arms. 

“First, it conflicts with a long tradition of firearm possession in the great outdoors,” Croy said. “To quote judge Richard Posner, ‘one doesn’t have to be a historian’ to realize that those living in the ‘wild west’ during the eighteenth century often carried firearms as they traveled. Just a few years ago, a federal court in Illinois concluded that a similar ban in so-called ‘Forest Preserve Districts’ was unconstitutional because ‘the record contain[ed] little evidence’ that firearms could be banned in the ‘wilderness.’ As that court further explained, the great outdoors has not historically been understood as a ‘sensitive place’ in which otherwise impermissible firearms regulations might be justified.”

Second, Croy testified, the rule’s breadth was shocking. 

“It does not even exempt law-abiding citizens with a concealed carry permit — like our client — from its reach,” he said. “Moreover, because approximately 15 percent of Wisconsin is covered by water, the rule applies to a wide swath of locations.”

The rule never should have been promulgated, Croy testified, and, during litigation, the DNR agreed to repeal the rule “as soon as practicable and without delay.”

“We applaud DNR for doing the right thing,” Croy said. 

The lawsuit

WILL had filed the lawsuit on behalf of its client Travis Kobs, who said he just wanted to have the ability to protect himself and to responsibly carry a firearm, which he said last summer that he had been lawfully doing in Wisconsin for more than six years.

“The Second Amendment is meant to apply everywhere, so I hope eliminating this rule can protect the rights of Wisconsin sportsmen,” Kobs said.  

According to the complaint, before 1966, many anglers used guns in musky fishing — in fact many northern Wisconsin guides recommended the practice — because muskies have sharp teeth that can cause substantial damage.

“Accordingly, fishermen often try to ensure that a musky is dead or at least incapacitated before reeling it in fully,” the complaint stated. “Until 1966, fishermen commonly shot muskies with a small-caliber pistol while the musky was hooked but before reeling it in all the way.”

In 1966, however, an administrative rule regulating the practice went into effect, the complaint stated. That predecessor rule prohibited a particular “use of any firearm”; however, it did not regulate the possession or control of one.

“The predecessor rule, given its text and history, was understood by fishermen to ban using small-caliber firearms to kill muskies,” the complaint states. “Indeed, John Dettloff, an amateur historian and outdoors enthusiast, explained that ‘[s]hooting muskies was a legal and often recommended method used to kill a fish which had been brought boatside to be landed’ until the predecessor rule went into effect.”

The predecessor rule came about primarily because “some government bureaucrats claimed that shooting muskies was unsportsmen-like,” WILL asserted.

“For example, in 1965, Guido Rahr, the then-chairman of the Conservation Commission (the department’s predecessor), issued a statement that ‘[t]he existing practice of using firearms as an aid in landing game fish after they have been hooked and played is contrary to the spirit of the rules of the commission and is not in keeping with the dignity of the sport of angling,’” the complaint stated.

That same year, WILL continued, the author of one newspaper article questioned whether using a firearm in such a manner was “unmanly, undignified, and unsporting,” even though the author acknowledged that it was a common practice “favored by some of the veteran anglers and guides” in northern Wisconsin.

The predecessor rule remained in place for over three decades, WILL observed. Then, the complaint continues, in 1999, the DNR amended the rule, making at least one substantive change.

“The predecessor rule, which only prohibited the actual use of a firearm to take fish, was rewritten to the current rule, which prohibits the possession or control of a firearm that ‘might be used for the purpose of fishing,’” the complaint states.

Specifically, while the predecessor rule banned “[f]ishing by any means other than hook and line,” the new rule added the prohibition on possession or control of any firearm. The administrative rule was especially broad, WILL argued, because, while many states regulate the actual use of a firearm to take fish, the Wisconsin administrative rule prohibits the possession or control of any firearm that might be used for the purpose of fishing. 

Thus, WILL contended, the administrative rule purportedly gave law enforcement officers “broad” authority to arbitrarily “stop or arrest those who do possess guns near water for any reason.”

WILL said the rule was unconstitutional on other grounds as well. 

“Alongside the Second Amendment, this rule violates the right to fish and hunt, and the non-delegation doctrine,” the group stated in its complaint. “The Wisconsin constitution guarantees [that] ‘the people have the right to fish, hunt, trap and take game subject only to reasonable restrictions as prescribed by law.’” 

The rule is far from a reasonable restriction on fishing, WILL asserted.

The rule also violates the doctrine of non-delegation, WILL contended, because state statute claims to give the DNR the rulemaking authority to “regulate hunting and fishing on and in all interstate boundary waters and outlying waters” but fails to specify substantive standards to guide the department’s decision-making. 

“While this rule was designed to regulate fishing practices, it went much further by jeopardizing the rights of law-abiding gun owners in Wisconsin,” Croy said this week. “WILL sued earlier this year because we deeply value the constitutional rights of Wisconsin sportsmen.”  

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.