James P. Moran, Petitioner-Appellant,
Wisconsin Department of Justice, Respondent-Respondent.
from an order of the circuit court for Chippewa County: No.
2016CV378 JAMES M. ISAACSON, Judge.
Stark, P.J., Hruz and Seidl, JJ.
James Moran appeals an order affirming a decision of the
Wisconsin Department of Justice (DOJ) denying Moran's
application to purchase a handgun in Wisconsin. Moran was
convicted of a felony in Virginia and, upon the completion of
his sentence, he petitioned to have his right to possess a
firearm restored in that state. The Virginia courts granted
Moran's petition, and Moran eventually moved to
Wisconsin, where he attempted to purchase a firearm. The
purchase was blocked by the DOJ based upon its conclusion
that, as a felon who had not received a pardon for his crime,
Moran was not permitted to possess a firearm in this state.
Moran raises numerous arguments challenging the DOJ's
determination. He contends the DOJ improperly interpreted
Wis.Stat. § 941.29(5) (2017-18),  which identifies
two circumstances under which a felon can lawfully possess a
firearm in this state. We agree with the DOJ that, under the
plain language of subsec. (5), a felon must either have
received a pardon with respect to his or her crime,
see subsec. (5)(a), or have obtained relief from his
or her disabilities under an identified federal statute,
see subsec. (5)(b). Moran has satisfied neither of
these conditions. We reject Moran's assertions that
§ 941.29(5) has been preempted by federal legislation,
and that the restoration of his right to possess a firearm in
Virginia is the equivalent of a pardon for purposes of
We also reject various constitutional arguments Moran
advances. Contrary to Moran's assertions, the
interpretation of Wis.Stat. § 941.29(5) adopted by the
DOJ does not violate the Full Faith and Credit Clause of the
United States Constitution. That clause does not require the
State of Wisconsin to defer to Virginia law with respect to
the circumstances under which a felon residing in this state
may possess firearms within this state's borders.
Furthermore, we conclude that the DOJ's determination
with respect to Moran's ability to possess a firearm in
Wisconsin does not deprive Moran of his right to bear arms
under either the federal constitution or state constitution.
Because the DOJ properly denied Moran's application to
purchase a firearm, we affirm the circuit court's order
upholding that determination.
The relevant facts are undisputed. Moran is a current
resident of Chippewa County, Wisconsin, and was previously a
resident of Virginia. In 1995, Moran was adjudicated guilty
in Virginia of felony embezzlement in an amount greater than
$200. A three-year sentence was imposed and stayed pending
Moran's completion of a five-year probation term, along
with his payment of restitution in the amount of $30, 700.
Moran successfully completed the term of probation and paid
all outstanding fines and costs.
The Virginia felony conviction resulted in Moran losing
several civil rights in Virginia, including his rights to
vote, to hold public office, and to possess firearms.
Following the completion of his probation term, Moran
petitioned the governor of Virginia to restore his civil
rights. The governor in 2006 granted Moran's petition,
removing "all political disabilities imposed as a result
of [his] felony conviction except the right to ship,
transport, possess or receive firearms." (Emphasis
To restore his right to possess a firearm in Virginia, Moran
was required to petition the Virginia circuit court in the
jurisdiction in which he resided. See Va. Code Ann.
§ 18.2-308.2(C) (2018). On November 6, 2013, the Circuit
Court of Loudoun County, Virginia, entered a final order
granting Moran a permit to carry a firearm. Thereafter, Moran
obtained a permit to carry a concealed handgun in Virginia,
and he purchased at least one firearm in Virginia after
receiving approval from the National Instant Criminal
Background Check System (NICS).
On October 5, 2016, Moran attempted to purchase a handgun in
Wisconsin, where he now permanently resides. Moran's
purchase was denied by Wisconsin's background check
system based upon his Virginia felony conviction. Moran
appealed the denial, which the DOJ's Crime Information
Bureau upheld. The Crime Information Bureau advised Moran
that under Wisconsin law- specifically, Wis.Stat. §
941.29(5)-his firearm rights could be restored only by his
being granted a pardon or by the federal government's
restoration of his firearm rights under 18 U.S.C. §
Moran appealed the Crime Information Bureau's
determination to the administrator of the DOJ's Division
of Law Enforcement Services, pursuant to Wis. Admin. Code
§ JUS 10.09 (Aug. 2012). Moran asserted that Wis.Stat.
§ 941.29(5) had been "invalidated by congressional
action," in that the statutory prerequisites for relief
under that section depended on federal rights restoration
programs that had been either repealed or defunded. Moran
also asserted that he was entitled to purchase a firearm
based upon amendments to federal law enacted as part of the
Firearm Owners' Protection Act of 1986. Finally, Moran
claimed that refusing to allow his gun purchase denied him
his right to bear arms under the United States and Wisconsin
The administrator denied Moran's appeal. He concluded the
documentation Moran had supplied did not establish that
Moran's felony conviction in Virginia should be excluded
under Wis.Stat. § 941.29(5). Consequently, Moran was
disqualified from purchasing or possessing a firearm in
Wisconsin. The administrator remarked that the DOJ was
without statutory authority to grant an exception to such
disqualification except to the extent provided in §
941.29(5), which exceptions were not applicable in
Moran sought judicial review of the administrator's
decision, pursuant to Wis.Stat. ch. 227. The circuit court
also identified Wis.Stat. § 941.29(5) as the only
mechanism by which a convicted felon can have his or her
right to possess a firearm in Wisconsin restored. The court
concluded the proper interpretation of that statute, given
the existing state of federal law, required that a felon
first receive a pardon before being eligible to purchase or
possess firearms in Wisconsin. The court then observed it was
undisputed that Moran had not received a pardon under
Virginia law, and it concluded the process Moran had
navigated to have his firearm rights restored in that state
was not the equivalent of a pardon in Wisconsin. Finally, the
court rejected Moran's constitutional arguments-namely,
his assertions that the denial violated his constitutional
rights to bear arms and that the United States
Constitution's Full Faith and Credit Clause required
Wisconsin to recognize his restoration of rights under
Virginia law. Moran now appeals.
This is an appeal under Wis.Stat. § 227.58 involving an
agency decision. In such an appeal, we review the decision of
the agency, not the decision of the circuit court. Myers
v. DNR, 2019 WI 5, ¶17, 385 Wis.2d 176, 922 N.W.2d
47. Our supreme court recently ended the practice of
deferring to an administrative agency's conclusions of
law. Id. (citing Tetra Tech EC, Inc. v.
DOR, 2018 WI 75, ¶3, 382 Wis.2d 496, 914 N.W.2d
21). However, when we evaluate the persuasiveness of an
administrative agency's arguments, we give "due
weight" to the agency's experience, technical
competence, and specialized knowledge. Id.
The facts of this case are undisputed, so we address only
questions of law-primarily, questions of statutory
interpretation and constitutional law. We decide questions of
statutory interpretation de novo. Id., ¶18.
When we engage in statutory interpretation, we begin with the
statute's language, which is generally given its common,
ordinary and accepted meaning. Id. If the language
yields a plain, clear statutory meaning, the statute is
unambiguous, and we apply the language as written without
resorting to extrinsic sources. Id. Moreover,
whether a statute is constitutional and whether an individual
has been denied a constitutional right are questions of law
that we review de novo. State v. Culver, 2018 WI App
55, ¶37, 384 Wis.2d 222, 918 N.W.2d 103, review
denied, 2019WI 8, 385 Wis.2d 206, 923 N.W.2d 165.
Wisconsin Stat. § 941.29(5) prohibits Moran from
purchasing a firearm in Wisconsin.
The purchase of handguns in Wisconsin is regulated by
Wis.Stat. § 175.35, which provides the DOJ with
authority to promulgate rules regarding the transfer of such
firearms. The statute specifically requires that the DOJ
perform a record search for firearm restrictions concerning a
prospective handgun purchaser. See §
175.35(2g)(c)1. After receiving a completed notification form
from a dealer regarding a prospective purchaser, the DOJ must
determine whether the purchaser is prohibited under state or
federal law from possessing a firearm. Sec. 175.35(2g)(c)4.
The DOJ then ultimately either approves the purchase or
issues a nonapproval to the dealer, thereby prohibiting the
Approval or nonapproval of a handgun purchase under Wis.Stat.
§ 175.35(2g)(c)4. turns upon whether the prospective
purchaser is prohibited from possessing a firearm under
Wis.Stat. § 941.29. Section 941.29(1m)(b), in turn,
makes it a felony for a person to possess a firearm if he or
she "has been convicted of a crime elsewhere that would
be a felony if committed in this state." Moran does not
dispute that the crime for which he was convicted in Virginia
is also a felony under Wisconsin law.
There are certain circumstances, however, under which our
legislature has determined that a felon may lawfully possess
a firearm. Two such circumstances are set forth in subsec.
(5) of Wis.Stat. § 941.29. First, subsec. (5) lifts the
prohibition on firearm possession for any person who has
received a pardon for the felony that would disqualify him or
her and has been expressly authorized to possess a
firearm under 18 U.S.C. app. § 1203
(1982).Sec. 941.29(5)(a). Second, subsec. (5)
makes it lawful to possess a firearm for any person who has
obtained "relief from disabilities" under 18 U.S.C.
§ 925(c). Sec. 941.29(5)(b). Thus, the exceptions under
subsecs. (5)(a) and (5)(b) collectively depend, at least in
part, upon two provisions of federal law, both of which have
changed since the time § 941.29 was enacted. To properly
frame Moran's argument on appeal, it is necessary that we
examine the history of the Wisconsin statute and its
interrelated federal provisions.
Wisconsin Stat. § 941.29 was created in 1981.
See 1981 Wis. Laws, ch. 141, § 1. As originally
enacted, it contained largely the same exception under
subsec. (5)(a) that exists today. Again, subsec. (5)(a)
contains two prerequisites to the lawful possession of a
firearm by a felon: the person must have received a pardon,
and he or she must have been expressly authorized to possess
a firearm under 18 U.S.C. app. § 1203. Section 1203,
which was located in an appendix to Title 18 of the United
States Code, exempted from the reach of the federal
felon-in-possession statute "any person who has been
pardoned by the President of the United States or the chief
executive of a State and has expressly been authorized by the
President or such chief executive, as the case may be, to
receive, possess, or transport in commerce a firearm."
18 U.S.C. app. § 1203(2). By invoking that particular
provision of federal law, the Wisconsin legislature appeared
to require that, to receive the benefit of §
941.29(5)(a), a convicted felon must obtain a pardon from a
state or federal executive authority that explicitly
permitted him or her to receive, possess or transport
firearms. See 78 Wis. Op. Att'y Gen. 22 (1989).
Subsequent changes in federal law generated uncertainty
regarding the applicability of Wis.Stat. § 941.29(5)(a).
In 1986, Congress repealed both the federal statute making it
a crime for a felon to possess a firearm and the statute
permitting such possession with explicit authorization
following a pardon. See Firearm Owners'
Protection Act, Pub. L. No. 99-308, § 104(b), 100 Stat.
449, 459 (1986). Although Congress subsequently reenacted the
prohibition on felons possessing firearms, see 18
U.S.C. § 922(g)(1), it did not reenact the executive