The free exercise clause of the 1st amendment protects not only the right to freedom in what one believes, but extends (with limitations) to acting on those beliefs. Both individuals and communities of individuals have a right to the freedom of religion. Courts have adopted a “ministerial exception” that protects houses of worship from state interference with the decision of who will teach and lead a congregation. Ordination is not required to be considered “ministerial.” The function of the position, as determined by whether the position is important to the spiritual and pastoral mission of the church and not whether religious tasks encompass the largest share of the position, is the primary consideration. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07-0496. The parents’ fundamental right to make decisions for their children about religion and medical care does not prevent the state from imposing criminal liability on a parent who fails to protect the child when the parent has a legal duty to act. The constitutional freedom of religion is absolute as to beliefs but not as to the conduct, which may be regulated for the protection of society. The Due Process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children, but a parent’s fundamental right to make decisions concerning a child’s care has limitations. The state’s authority is not nullified merely because a parent grounds his or her claim to control the child in religious belief. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044. The constitutionality of state tuition grants to parents of resident pupils enrolled in private elementary or high schools is discussed. 58 Atty. Gen. 163.
Guidelines to possibly avoid constitutional objection to CESA service contracts with private schools are discussed. 62 Atty. Gen. 75.
Leasing of university buildings to a religious congregation during nonschool days and hours on a temporary basis while the congregation’s existing facility is being renovated and leasing convention space to a church conference would not violate separation of church and state provisions of the 1st amendment. 63 Atty. Gen. 374.
The department of public instruction may, if so authorized under 16.54, implement the school lunch program and special food service plan for children in secular and sectarian private schools and child-care institutions without violating the U.S. or Wisconsin constitutions. 63 Atty. Gen. 473.
Funds received under Title I of the Elementary and Secondary Education Act may not be used to pay salaries of public school teachers teaching in church affiliated private schools. See 64 Atty. Gen. 139. 64 Atty. Gen. 136.
The establishment clause and this section prohibit public schools leasing classrooms from parochial schools to provide educational programs for parochial students. 67 Atty. Gen. 283.
A group of churches is entitled to a permit under s. 16.845 to use the capitol grounds for a civic or social activity even if the content of the program is partly religious in nature. 68 Atty. Gen. 217.
The U.S. and state constitutions do not prohibit the state from disbursing state matching funds under the National School Lunch Act to private, as well as, public schools. 69 Atty. Gen. 109.
The state can constitutionally license and regulate community based residential facilities that are operated by religious organizations and are not convents, monasteries, or similar facilities exempted by statute. 71 Atty. Gen. 112.
University of Wisconsin athletes may not engage in voluntary prayer led by a coach prior to an athletic event, although silent meditation or prayer organized by athletes may be undertaken within certain guidelines. 75 Atty. Gen. 81. But see Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). The scope of this section is discussed. 75 Atty. Gen. 251 (1986).
The establishment clause prohibits states from loaning instructional material to sectarian schools or providing auxiliary services to remedial and exceptional students in such schools. Meek v. Pittenger, 421 U.S. 349. In adjudicating a church property dispute, the state may adopt a “neutral principles of law” analysis regarding deeds, applicable statutes, local church charters, and general church constitutions. Jones v. Walf, 443 U.S. 595 (1979). The representation of the Ten Commandments as the basis for the legal code of western civilization violated the establishment clause. Stone v. Graham, 449 U.S. 39 (1980). The denial of unemployment compensation to a Jehovah’s Witness who quit a job due to religious beliefs was a violation of free exercise rights. Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707 (1981). A state fair rule that limited a religious group to an assigned booth in conducting its religious activities did not violate the free exercise clause. Heffron v. Int’l Soc. for Krishna Consc., 452 U.S. 640 (1981). A public university that provided a forum to many student groups but excluded religious student groups violated the principle that state regulation of speech should be content neutral. Widmar v. Vincent, 454 U.S. 263 (1981). A nativity scene displayed by a city did not violate the establishment clause. Lynch v. Donnelly, 465 U.S. 668 (1984). Due to the setting and nature of the display, a menorah placed next to a Christmas tree placed outside of a city-county building did not violate the establishment clause while prominent placement of a creche inside a courthouse did. Allegheny County v. Pittsburgh ACLU, 492 U.S. 573, 106 L. Ed. 2d 472 (1989). The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes or prescribes conduct that the individual’s religion prescribes or proscribes. Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But see Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021). The federal Equal Access Act prohibits high schools from barring student religious club meetings on school premises when other “noncurriculum-related” clubs are allowed access. Westside Community Schools v. Mergens, 496 U.S. 226, 110 L. Ed. 2d 191 (1990). A public school district’s inclusion of prayers at a public graduation ceremony, offered by a member of the clergy at the district’s request and direction, violated the establishment clause. Lee v. Weisman, 505 U.S. 77, 120 L. Ed. 2d 467 (1992). The denial of the use of a school building to a church seeking to exhibit a film when a nonsectarian group would have been allowed the use of the building to show a secular film on the same topic violated the right to free speech. Lamb’s Chapel v. Center Moriches, 508 U.S. 384, 124 L. Ed. 2d 352 (1993). A law that targets religious conduct for distinctive treatment is subject to the most rigorous scrutiny. The regulation of animal sacrifice that effectively prohibited the practices of one sect was void. Church of Lukumi v. Hialeah, 508 U.S. 520, 124 L. Ed. 2d 472 (1993). The provision of an interpreter by a school district to a student attending a parochial school was permissible when provided as a part of a neutral program benefitting all qualified children without regard to the sectarian-nonsectarian nature of the school. Zobrest v. Catalina Foothills, 509 U.S. 1, 125 L. Ed. 2d 1 (1993). Special legislation creating a public school district for a village consisting solely of members of a single religious community violated the establishment clause. Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 129 L. Ed. 2d 546 (1994). A state university that funded the printing of a broad range of student publications but denied funding for printing the publication of a student religious group violated free speech guarantees and was not excused by the need to comply with the establishment clause. Rosenberger v. University of Virginia, 515 U.S. 819, 132 L. Ed. 2d (1995). A school district policy permitting student-led, student-initiated prayer at school football games violated the establishment clause of the 1st amendment because it had the purpose and created the perception of encouraging the delivery of prayer at important high school events. Santa Fe Independent School District v. Doe, 530 U.S. 290, 147 L. Ed. 2d 295 (2000). But see Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a school, on the grounds that it is discussed from a religious viewpoint. A club’s meetings, held after school, not sponsored by the school, and open to to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 150 L. Ed. 2d 151 (2001). The Cleveland, Ohio school choice program that provides tuition aid to parents who may use the money to pay tuition to private, religious schools does not violate the establishment clause. When an aid program is neutral with respect to religion and provides assistance to a broad class of citizens who, in turn, direct the aid to religious schools through individual choice, the program is not subject to challenge. Zelman v. Simmons-Harris, 536 U.S. 639, 153 L. Ed. 2d 604 (2002). The state of Washington, under its constitution, which prohibits even indirect funding of religious instruction that will prepare students for the ministry, could deny such students funding available to all other students without violating the free exercise clause of the 1st amendment. Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L. Ed 2d 1 (2004). But see Espinoza v. Montana Department of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020). The Establishment Clause of the 1st amendment allows display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (2005). A display of the Ten Commandments in a county courthouse violated the Establishment Clause of the 1st amendment. The government agency’s manifest objective in presenting the display may be dispositive of the constitutional enquiry, and the development of the presentation should be considered when determining its purpose. Governmental purpose needs to be taken seriously under the Establishment Clause and to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005). Respondents’ status as taxpayers did not give them standing to challenge state tax credits to organizations that awarded scholarships to religious schools. For standing there must be a nexus between the plaintiff’s taxpayer status and the precise nature of the constitutional infringement alleged. Tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he or she has in some small measure been made to contribute to an establishment in violation of conscience. When the government declines to impose a tax there is no such connection between dissenting taxpayer and alleged establishment. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 131 S. Ct. 1436, 179 L. Ed. 2d 523 (2011). Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. However, the establishment and free exercise clauses of the 1st amendment to the U.S. Constitution bar such an action when the employer is a religious group and the employee is one of the group’s ministers. Thus, in an employment discrimination suit brought on behalf of a minister challenging her church’s decision to fire her, the ministerial exception barred the suit. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012). See also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). Legislative prayer, while religious in nature, has long been understood as compatible with the establishment clause. As practiced by congress since the framing of the constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. It is not necessary to define the precise boundary of the establishment clause where history shows that the specific practice is permitted. Any test the court adopts must acknowledge a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change. Town of Greece v. Galloway, 572 U.S. 565, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014). Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. So long as the town maintains a policy of nondiscrimination, the constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote a diversity of religious views would require the town to make wholly inappropriate judgments about the number of religions it should sponsor and the relative frequency with which it should sponsor each. Town of Greece v. Galloway, 572 U.S. 565, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014). Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order. A policy of categorically disqualifying churches and other religious organizations from receiving grants under a state playground resurfacing program violated the rights of a church applicant for a grant under the free exercise clause of the 1st amendment. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 137 S. Ct. 2012, 198 L. Ed. 2d 551 (2017). A state civil rights commission violated the free exercise clause when it showed elements of a clear and impermissible hostility toward the sincere religious beliefs of a baker who declined to make a wedding cake for a same-sex couple in violation of a state anti-discrimination law. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018). Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality under the establishment clause. American Legion v. American Humanist Ass’n, 588 U. S. ____, 139 S. Ct. 2067, 204 L. Ed. 2d 452 (2019). The Montana Constitution bars aid to any school controlled in whole or in part by any church, sect, or denomination. Like the grants at issue in Trinity Lutheran, 582 U.S. 449 (2017), the no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious. Therefore, the free exercise clause of the 1st amendment to the U.S. Constitution precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from a scholarship program established by the Montana Legislature. Espinoza v. Montana Department of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020). See also Carson v. Makin, 596 U.S. ___, 142 S. Ct. 1987, 213 L. Ed. 2d 286 (2022). The refusal of a city to contract with a child welfare agency for the provision of foster care services unless the child welfare agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the 1st amendment. Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021). When a government does not speak for itself, it may not exclude speech based on religious viewpoint; doing so constitutes impermissible viewpoint discrimination. In this case, the city’s program that allowed private groups to request use of the flagpole outside city hall to raise flags of their choosing did not express government speech. As a result, the city’s refusal to let the applicants fly their Christian flag based on its religious viewpoint violated the free speech clause of the 1st amendment and did not raise an establishment of religion violation. Shurtleff v. City of Boston, 596 U.S. ___, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022). The expressive activity of a high school football coach who knelt at midfield after games to offer a quiet prayer of thanks during a period when school employees were free to attend to personal matters and while students were otherwise occupied was protected by the free exercise and free speech clauses of the 1st amendment, and the establishment clause did not require or allow the school district to single out the coach’s private religious speech for special disfavor. The establishment clause does not compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious. Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). Government may not coerce anyone to attend church, nor may it force citizens to engage in a formal religious exercise. However, in this case, the private religious exercise of a high school football coach did not cross the line separating protected private expression from impermissible government coercion. Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). A legislative mandate requiring reasonable accommodation of religious conduct does not violate establishment clause. Nottelson v. Smith Steel Wkrs. D.A.L.U. 19806, 643 F.2d 445 (1981). A prison regulation allowing a cross to be worn only with a rosary discriminated against protestants, without a “ghost of reason,” in violation of the right to the free exercise of religion. Sasnett v. Litscher, 197 F.3d 290 (1999). Although the sale to private parties of a small parcel of land in a public park ended direct government action constituting endorsement of religion, the proximity of the statue to city property and the lack of visual definition between the city and private land created a perception of improper endorsement of religion in violation of the establishment clause. Freedom From Religion Foundation v. City of Marshfield, 203 F.3d 487 (2000). A public library that allowed a wide range of uses of its meeting room by non-profit groups violated the 1st amendment by excluding the use of the room for religious services or instruction. Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253 (2000). Grants to a faith-based counseling organization that integrated religion into its counseling program were unconstitutional when there were insufficient safeguards in place to insure that public funding did not contribute to a religious end. Freedom From Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (2002). Excluding a religious charitable organization from participation in the Wisconsin State Employees Combined Campaign solely because that organization discriminates on the basis of religion or creed in choosing its governing board and employees is constitutionally impermissible. Ass’n of Faith-Based Organizations, 454 F. Supp. 812 (2006). Nyquist and Public Aid to Private Education. Piekarski. 58 MLR 247 (1975).
The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty. Heyman. 101 MLR 705 (2018).
A Masterpiece of Simplicity: Toward a Yoderian Free Exercise Framework for Wedding-Vendor Cases. Rogers. 103 MLR 163 (2019).
Constitutional Law—First Amendment—The Role of Civil Courts in Church Disputes. Cunningham. 1977 WLR 904.
First Amendment-Based Attacks on Wisconsin “Attendance Area” Statutes. Woessner. 1980 WLR 409.
Brave New World Revisited: Fifteen Years of Chemical Sacraments. Beyer. 1980 WLR 879.
Lamb’s Chapel v. Center Moriches Union Free School District: Creating Greater Protection for Religious Speech Through the Illusion of Public Forum Analysis. Ehrmann. 1994 WLR 965.
King v. Village of Waunakee: Redefining Establishment Clause Jurisprudence in Wisconsin. Lanford. 1996 WLR 185.
Free Exercise (Dis)Honesty. Oleske. 2019 WLR 689.
How Vast is King’s Realm? Constitutional Challenge to the Church-State Clause. Gordon. Wis. Law. Aug. 1995.
I,19Religious tests prohibited. Section 19. No religious tests shall ever be required as a qualification for any office of public trust under the state, and no person shall be rendered incompetent to give evidence in any court of law or equity in consequence of his opinions on the subject of religion. I,20Military subordinate to civil power. Section 20. The military shall be in strict subordination to the civil power. I,21Rights of suitors. Section 21. [As amended April 1977] I,21(1)(1) Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law. I,21(2)(2) In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor’s choice. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] As a matter of Wisconsin constitutional law, the right to an appeal is absolute. In order that the right be meaningful, a defendant must be furnished a full transcript—or a functionally equivalent substitute that, in a criminal case, beyond a reasonable doubt, portrays in a way that is meaningful to the particular appeal exactly what happened in the course of trial. The usual remedy when the transcript deficiency is such that there cannot be a meaningful appeal is reversal with directions that there be a new trial. However, error in transcript preparation or production, like error in trial procedure, is subject to the harmless-error rule. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987). Every person has an absolute right to appear pro se. Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis. 2d 381, N.W.2d (Ct. App. 1993). A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term “any suitor.” Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 561 N.W.2d 718 (1997), 95-1946. Sub. (2) gives the right in a civil trial to chose whether to defend oneself personally or to have an attorney, but does not address whether the party may, or may not, be ordered to be physically present at trial when represented. City of Sun Prairie v. Davis, 217 Wis. 2d 268, 575 N.W.2d 268 (Ct. App. 1998), 97-1651. If a telephone warrant application has not been recorded and there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed application may serve as an equivalent of the record of the original application and can protect the defendant’s right to a meaningful appeal. State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 129, 00-1086. Because a transcript is crucial to the right to an appeal, courts provide additional protection for appellants when they do not have a complete transcript. Under Perry, 136 Wis. 2d 92 (1987), and DeLeon, 127 Wis. 2d 74 (Ct. App. 1985), when a trial transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. The Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. The court does not presume prejudice when the trial transcript is unavailable. State v. Pope, 2019 WI 106, 389 Wis. 2d 390, 936 N.W.2d 606, 17-1720. I,22Maintenance of free government. Section 22. The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles. I,23Transportation of school children. Section 23. [As created April 1967] Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning. [1965 J.R. 46, 1967 J.R. 13, vote April 1967] Elementary Secondary Education Act funds may be used in dual enrollment programs to transport children from parochial schools to and from public schools. 65 Atty. Gen. 126.
I,24Use of school buildings. Section 24. [As created April 1972] Nothing in this constitution shall prohibit the legislature from authorizing, by law, the use of public school buildings by civic, religious or charitable organizations during nonschool hours upon payment by the organization to the school district of reasonable compensation for such use. [1969 J.R. 38, 1971 J.R. 27, vote April 1972] I,25Right to keep and bear arms. Section 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote Nov. 1998] The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056. A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant’s interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state’s interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056. Under both Hamdan and Cole there are 2 places in which a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen’s home or in his or her privately-owned business. It logically and necessarily follows that the individual’s interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations. An individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04-2989. The ban on felons possessing firearms is constitutional and that ban extends to all felons, including nonviolent ones. The governmental objective of public safety is an important one, and the legislature’s decision to deprive a nonviolent felon, such as the plaintiff, of the right to possess a firearm is substantially related to this goal. State v. Pocian, 2012 WI App 58, 341 Wis. 2d 380, 814 N.W.2d 894, 11-1035. Silencers are not “arms” for the purposes of the 2nd amendment. The prohibition on possession of a silencer under s. 941.298 does not impose a burden on conduct falling within the scope of the 2nd amendment’s guarantee and therefore is not unconstitutional. State v. Barrett, 2020 WI App 13, 391 Wis. 2d 283, 941 N.W.2d 866, 18-2324. The most natural reading of “keep arms” in the 2nd amendment is to have weapons. The natural meaning of “bear arms” is to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Putting all textual elements together, the 2nd amendment guarantees the individual right to possess and carry weapons in case of confrontation. However, like most rights, the right secured by the 2nd amendment is not unlimited. District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008). The 2nd amendment right to bear arms, is fully applicable to the states. The due process clause of the 14th amendment incorporates the 2nd amendment right recognized in Heller. However, incorporation does not imperil every law regulating firearms. McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
