The Kenosha County Eye has noted a lawsuit filed by Milwaukee man Kenneth Karwacki in the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. The lawsuit is against Josh Kaul, the Attorney General of Wisconsin for denial of civil rights, 28 U.S.C.§§ 1331 and 1343. The office of the AG refused to issue a permit to carry a concealed weapon because of a misdemeanor conviction of Karwacki for the delivery of peyote while in the U.S. military.
Records published online show a United States Air Force Criminal Court of Appeals convicted Airman First Class Kenneth J. Karwacki on 11 December, 2015 by a Special Court Martial in Dyess Air Force Base, Texas. It is not completely certain this is the same Kenneth Karwacki.
The judge assigned in the case is Brett H Ludwick. Wisconsin is in the Court of Appeals for the Seventh Circuit. He was nominated by President Trump and confirmed by a vote of 91-5 in the Senate, in September of 2020.
The issue in the case is fairly clear: Does the State of Wisconsin have the authority to restrict the right to keep and bear arms, under the Second Amendment, for a misdemeanor under federal law, which, they claim, would be a felony under Wisconsin law? In particular, is a non-violent misdemeanor under federal law sufficient to deny a fundamental, enumerated right, such as the Second Amendment from a citizen of the United States? The Wisconsin AG claims the delivery of peyote is a “violent” crime.
The AG office claims that the plaintiff, Kenneth Karwacki, is not considered a member of the “people” under the Second Amendment. To this correspondent, this is a very weak argument. The Supreme Court, in the Rahimi case, still considered Rahimi to be “one of the people” covered by the Second Amendment. From the opinion in Rahimi, page 1:
Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. Pp. 5–17.
It is highly unlikely a federal court will find a United States Citizen, without any violent conviction, is not one of “the people” covered by the Second Amendment.
The AG office claims the states have the power to decide whether any conduct anywhere else is a felony or not. Kenneth Karwacki was not convicted of a federal felony.
The essential argument is the State of Wisconsin can define who may exercise rights protected by the Second Amendment. This claim seems unlikely to stand. It would give every state the power to decide who, within its jurisdiction, may exercise rights enumerated in the Bill of Rights, and who may not. This appears to be directly contradictory to the Fourteenth Amendment. The Second Amendment has already been incorporated to the states via the Fourteenth Amendment, by the McDonald decision.
The strong indication from the Supreme Court is the Second Amendment may not be infringed for non-violent behavior, especially for non-violent misdemeanors.
Calling a delivery of peyote case a “violent crime” does not make it a violent crime. No historical evidence or analysis was included in the AG brief to show delivery of a drug was ever a reason to infringe on a person’s Second Amendment Rights. Instead, they claim that because some other crimes were dealt with harshly in colonial times, any crime today can be determined by any state to be sufficient to invalidate any constitutional right. This is an absurd proposal.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
