WILL challenges constitutionality of DNR gun rule

The Wisconsin Institute for Law & Liberty (WILL) is taking on an administrative rule crafted by the state Department of Natural Resources, saying it violates the Second Amendment and could result in fines for law-abiding citizens this summer.

Specifically, the Department of Natural Resources’ (DNR) rule declares that “[n]o person may . . . [p]ossess or control any firearm, gun or similar device at any time while on the waters, banks or shores that might be used for the purpose of fishing.” 

While the rule is designed to regulate fishing practices, WILL argues that it goes much further and violates the rights of all law-abiding gun owners.

WILL filed the lawsuit on behalf of its client Travis Kobs.  

“Mr. Kobs is entitled to exercise his constitutional rights without fearing unlawful enforcement,” WILL associate counsel Skylar Croy said. “We request that the DNR correct its administrative rule to restore the individual liberties our constitution safeguards.” 

According to WILL, Wisconsin’s regulation of firearms for fishing is among the most restrictive of the states because it not only regulates how one can harvest a fish but prohibits 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, this rule acts as a ban on all firearms,” WILL argues. “While many states simply assert that certain firearms cannot be used to fish, Wisconsin extends its ruling by prohibiting the possession of a firearm on or near the water altogether.”

Violation of the rule can result in fines as high as $544.50 when court costs are included. 

For his part, Kobs says he just wants to have the ability to protect himself and to responsibly carry a firearm, which he says he has 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.   

Background

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 states. “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 states. 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 asserts.

“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 states.

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 bans “[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 is especially broad, WILL argues, 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. 

“As [one] commentator further explained, ‘[b]ecause any gun might be used for fishing,’ this regulation essentially prohibits the possession of firearms on waters, banks, or shores of bodies of water,” the complaint states.

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

On May 28, WILL states, a demand letter was sent to the DNR, asking it to acknowledge that the administrative rule is unconstitutional. In that letter, WILL pointed out that Kobs is a lifelong Wisconsinite, a concealed-carry permit holder, and an avid hunter and fisher. 

“He has no criminal history,” the letter stated. “Accordingly, as a law-abiding citizen, he has a constitutional right to carry a pistol for self-defense, even outside the home, as the United States Supreme Court recently made clear. Mr. Kobs owns a 9mm pistol and desires to carry his pistol even when he is near or on Wisconsin’s waters, banks, and shores.”

WILL requested a response by June 4.

“Furthermore, as part of the cure, the department must also begin the process of repealing the rule,” the letter stated. “We are asking the department to provide a time frame for the repeal process and again to provide that time frame by June 4th. If the department does not begin the cure process as set forth above, we will pursue appropriate legal action, which may include a federal civil-rights lawsuit in which we seek an injunction and attorneys’ fees.”

The DNR did not respond, WILL asserts.

Presumptively protected 

The U.S. Supreme Court recently clarified the doctrinal framework for addressing Second Amendment claims, WILL observed. 

It must be determined, first, if the Second Amendment’s plain text covers the conduct at issue. If it does, the conduct is “presumptively protected.”

“Notably, the United States Supreme Court favors a broad reading of ‘arms’: ‘arms’ covers ‘any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another,’” the complaint states. 

Second, WILL explains, if the plain text covers the conduct, the government must “affirmatively prove” that the rule “is part of the historical tradition that delimits the outer bounds of the right . . . .” 

“At this second step, the administrative rule must be declared unconstitutional unless [the DNR secretary] can point to a ‘historical analogue,’” the complaint states. “Although the analogue need not be a literal ‘twin,’ it must be ‘well-established and representative,’ so as not to ‘risk[] endorsing outliers that our ancestors would never have accepted.’” 

In this case, WILL asserts, Kobs desires to possess a small-caliber pistol near and on waters, banks, and shores for self-defense against animals and humans.

“Mr. Kobs’s conduct is covered by Second Amendment’s plain text; accordingly, it is presumptively protected,” the complaint states. 

As for the second step, WILL says the DNR cannot possibly meet that high burden.

“Indeed, until 1966, not only could Wisconsinites possess a small-caliber pistol near and on waters, banks, and shores — they could and often did use a pistol to shoot fish,” the complaint states. “From 1966 to 1999, only the actual use of a firearm to shoot fish was banned. Accordingly, the administrative rule’s ban on firearms — even for self-defense — in certain locations is not in keeping with a historical tradition of firearms regulation.”

Instead, WILL argues, the administrative rule is a novel late-twentieth century regulatory invention.

“The department lacks a compelling interest for the administrative rule,” the complaint states. “The department especially lacks any interest in telling a law-abiding citizen with a concealed carry permit, like Mr. Kobs, where he can carry a firearm.”

Further, WILL asserts, the DNR has no reason to believe that Kobs will use his firearm to shoot fish.

“Additionally, the administrative rule is not narrowly tailored because it bans possession or control of firearms even for self-defense,” the complaint states. “Any interest the department may have in regulating the actual use of a firearm to shoot fish is already realized in the administrative rule, which, in subsection (1), bans ‘[f]ishing by any means other than hook and line.’” 

Accordingly, the complaint contends, the administrative rule should be declared unconstitutional and its enforcement prohibited.

WILL says the rule is 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 declares 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 asserts.

The rule also violates the doctrine of non-delegation, WILL contends, 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. 

“WILL is committed to fighting for the individual liberties of our citizens,” the group stated. “The constitution protects inalienable rights, including the right to bear arms, which ought to be preserved at all costs.”

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