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DNR Sued Over Silly, Unconstitutional “Rule” – State Should Avoid Legal Battle And Axe Rule: Opinion

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(File Photo by Kevin Mathewson, Kenosha County Eye)

The Wisconsin Department of Natural Resources (DNR) has been sued by the Wisconsin Institute for Law and Liberty, Inc. (WILL) to prevent any enforcement of a DNR rule created in 1999. The regulation forbids the possession of any firearm by any person at any time on the waters, banks, or shores or waters in Wisconsin. 

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The specific regulation is  NR 20.05(2):

NR 20.05 General restrictions. No person may do any of the following: 

 (2) Possess 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.

Any firearm “might be used for the purpose of fishing”. Conversely virtually all “waters, banks or shores” might be used for the purposes of fishing. The regulation bans the possession or control of any firearm by any person at any time on the waters, banks or shores that might be used for the purpose of fishing.  There are no exceptions in the regulation.  

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This is forbidden by the Second Amendment in the Bill of Rights in the United States Constitution. 

It is forbidden by Section 25 of the Wisconsin State Constitution:

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The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose. (Art. 1, § 25)

The lawyers of WILL have chosen to challenge the regulation under the Second Amendment, because of the clear guidance given by the Supreme Court in the Bruen decision. Pistols were commonly carried in holsters and tackle boxes in Wisconsin to dispatch large fish until 1966. My father routinely carried a Remington Rolling Block .22 single shot pistol in his tackle box for such purposes, until the fishing regulation was changed in 1966. The prohibition on shooting fish was well understood when I was a Wisconsin Conservation Officer (Game Warden) 45 years ago. No one has come forward to take responsibility for inserting NR 20.05(2) into the code in 1999. It is not clear how many people have been prosecuted under the regulation, if any. 

According to the lawsuit, the regulation is being challenged using the procedures of Wis. Stat. §227.40(4)(a). WILL states Wisconsin law requires plaintiffs to use §227.40(4)(a) to construct a case challenging the constitutional validity of a DNR regulation. 

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The prohibition on the possession of firearms near or on the water was created in 1999. It has no historical precedent. This makes the regulation difficult to justify under the Bruen standard for the Second Amendment.  

There is no exception in the law for Conservation Officers or other sworn officers. Not all officers carry firearms all the time. It is possible officers avoid flagrant violation of the regulation by locking up their duty firearms in their vehicle before they approach the bank of a river or stream or shoreline of a lake, or enter a boat to perform water patrol duties. 

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Analysis: The DNR would do well to settle the lawsuit and agree to not enforce NR 20.05(2) until it can be removed from the code. This would minimize the legal expense by the state on a losing case for a regulation which is seldom enforced.

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7 Responses

  1. I interpret it to mean that “no person may
    possess 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 SHOOTING fishing”.

    2
    1
    1. Yeah…but you know the “interpretation” would be under the discretion of the arresting officer and you know what that means… arrest now, take yur guns, charge you for using your gun illegally and maybe even get a felony and have all your gun rights stripped. Glad they are sueing the DNR. That should be off the books!

  2. This is an incredibly ridiculous and unenforceable rule.

    So the (friendly) Kenosha Co. Sheriff Deputies that stopped me on my boat last year at Camp Lake to check licenses and regulation compliance were themselves in violation of this rule as they had their duty weapons on them?

    This is a no-brainer, remove this rule for all.

  3. The authors analysis is 100% correct. Any weapon could be used to shoot a big fish, I can’t even type that and keep a straight face. If someone Acts badly with a firearm, we already have all the laws we could need to deal with them. This law is clearly unconstitutional, and should be abandoned immediately

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