Wisconsin Supreme Court Rules for First and Second Amendments in Armslist Case

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Wisconsin Supreme Court Rules for First and Second Amendments in Armslist Case

Wisconsin -(Ammoland.com)- The Wisconsin Supreme Court has upheld a lower court's decision that Armslist's ads and tools are protected by the Communications Decency Act (CDA).  The act was designed to preserve freedom of speech on the Internet by immunizing web sites for the publishing of third party content. Armslist facilitates the communication between willing firearm sellers and buyers.  The lower court had been overturned by a Wisconsin Court of Appeals. This decision protects both First and Second Amendment rights. From fox6now.com:

Radcliffe Haughton’s wife, Zina Daniel Haughton, had taken out a restraining order against him that prohibited him from possessing a firearm. But he bought a semiautomatic pistol and ammunition from a person he met through Armslist.com, according to court documents.

His estranged wife had been granted a restraining order on 18 October.

From court records, Haughton purchased the gun from a private party, instead of trying to purchase it at a federally licensed dealer. He placed an ad to purchase a gun on 20 October. The ad was answered and he purchased a Glock .40 caliber pistol the same day, from a private party.

The next day, on the morning of 21 October, he murdered his wife and two other women, wounding others, then killing himself.

The Communications Decency Act protects First Amendment Rights on the Internet.

The lawsuit against Armslist is a direct attack against both First Amendment and Second Amendment rights. If successful, the lawsuit would have chilled the ability of websites to allow the free exchange of information on their sites by third parties.

If successful, the lawsuit would have chilled the ability of Americans to buy and sell firearms without government permission. No website, advertiser, or even gun show or gun club would allow private parties to meet arrange private sales of firearms using their facilities without the threat of a lawsuit. If the lawsuit had been successful, such exchanges would have made them liable for the criminal actions of others.

In the famous Heller decision, Justice Scalia mentioned that it might be Constitutional to regulate commercial sales of guns. Implied is that it would not be Constitutional to regulate private sales or the manufacture of guns by individuals for their own use.  From District of Columbia v. Heller:

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The Wisconsin Supreme Court decision recognizes the intent and purpose of the CDA. The court explains the CDA does not have a “good faith” requirement. Websites only have to provide a neutral tool to their users. From Daniel v. Armslist,  courthousenews.com:

¶37 One obvious problem with Daniel's argument is that § 230(c)(1) contains no good faith requirement. Therefore, the issue is not whether Armslist knew, or should have known, that its site would be used by third parties for illegal purposes. Instead, the issue is whether Armslist was an information content provider with respect to Linn's advertisement. Armslist.com's provision of an advertising forum and the related search functions are all “neutral tools” that can be used for lawful purposes. Sales of firearms by private sellers are lawful in Wisconsin. Further, private sellers in Wisconsin are not required to conduct background checks, and private sales are not subject to any mandatory waiting period. Accordingly, the option to search for offers from private sellers is a tool that may be used for lawful purposes.

A Ninth Circuit case about the CDA buttresses the Wisconsin Supreme Court's decision by showing “intent is irrelevant” for the CDA. From Fair Housing Council v. Roommates.com:

Such close cases, we believe, must always be resolved in favor of immunity, les we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged——or at least tacitly assented to——the illegality of third parties.”

It is impossible to know if Radcliffe Haughton would have been dissuaded from murdering his wife and two other women if he had been unable to obtain a firearm through Armslist. There are two many imponderables. He might have been able to obtain a firearm at a federal dealer. We know that prohibited persons are not always listed to the NICS databases immediately. He might have purchased a gun from a newspaper ad, or from a friend, or at a gun club. He might have pursued a sale on the black market. He might have used another weapon, such as gasoline and arson of his wife's place of work. These are all imponderables we cannot know.

There are other crimes that might be prevented if we eliminate First and Second Amendment freedoms. We know great harm will occur if we eliminate the Bill of Rights.

The Bill of Rights is designed to protect our inherent rights as people. It has served us very well.  It would be foolish to discard these protections in the hope the government could then prevent a few more crimes.

Homicide rates are not affected by the ownership of firearms. Homicides committed with firearms may be affected, but not overall homicide rates.

Those who push for perfect safety in protection by the government are pursuing a chimera. Perfection does not exist. Give a government too much power, and hundreds of thousands, or millions are likely to suffer, as we often saw in the 20th century.


About Dean Weingarten: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 recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 33 thoughts on “Wisconsin Supreme Court Rules for First and Second Amendments in Armslist Case

    1. Dean, I would like to ask your permission to use some of the info in your articles. I will be making several presentations before the state House and Senate in favor of the PRO GUN side.

    2. Och is obviously a complete moron or a paid troll for one of the many organizations trying to take our rights from us. Which is it Och?

    3. If the “Restraining Orders” followed due process (Red Flag laws don’t either) and allowed for fair treatment in an open court for both sides, then there shouldn’t be a problem with them, but they don’t. The occasional/rare example, as the one cited in this article, pales with the number of instances (80+%) where the restraining orders are tools used by divorce lawyers for leverage in court and by ex-spouses and ex-girlfriends, to exact retaliation for some imagined or perceived wrongs ie. revenge, not justice.

      1. the vast majority of divorce lawyers draft a restraining order as a matter of course, and quiely add it to the pile of papers for the litigant to sign, who nearly always simply signs them all/ More paperwork, more fees. Simple as that.

        And no, ther eis NOT any noral means of contesting them. And a huge number of them never find their way to the respondant. who, having been booted from his own house, ends up being rather transient for a season, hopeing against home things can be “fixed up” before long, so he never even knows about the restraining order.

        Such notices typically get filed with NICS on a monthly basis, two days is never enough time.. so he acted quickly.

    4. A PERSON CAN BUY A GUN ANYWHERE HE CHOSES. IF HE IS LEGALLY ABLE TO BUY A WEAPON HE WILL…NO MATTER WHAT LAWS OR RESTRAINGHTS ARE IN PLACE ONE CAN BUY FROM OTHER PLACES….THE US GUN BLACK MARKET IS HUGH AND WILLL QUADRUPLE IF GUN CONTROL LAWS GO INTO PLACE..

      1. Who said it has to be a fire arm? More deaths are by fists, or even a hammer. Nothing but pure drama, and a restraining order that may or may not be followed ….or not reasonable. One case where a law enforcement’s divorce, and a firearm is necessary to his job had to be dealt with. They can be issued on anyone even without any history of a problem. Like suicide, a firearm is convenient, but unavailable, there are many and all ways when the determination is made or it goes beyond emotional limits. Common issue in divorce cases but pretty useless as a protection. Most of the the new Red Tag laws unfortunately, first of all are unfunded, are a danger to all, and Unconstitutional with more than just the second amendment. It hasn’t been court challenged, but there have been deaths on both sides already. There are some enforcement problems that go along with the bill, some that have occurred, and some that are yet to be faced.

    5. So, allowing an abuser to have a firearm DESPITE a court restraining order is good policy??????? Sure.
      And if frogs had wings they wouldn’t bump their ass when they jumped. What an idiotic position to take. NOPWHERE does the Second Amendment, written when what;e oil lamps were in vogue say that a domestic abuser should have a gun. How stupid. And that applies directly to all the abusive spouse gun owners who post here AND the clowns that published this crazed article. Sick sick sick.

      1. Where in the 2A or any of the other 26 amendments to the Constitution or in all of the laws in the USA state he was “allowed” to murder someone? Where in all of those amendments and laws does it state he was legally allowed to possess and use a firearm in the commission of a crime? If frogs had wings and still bumped their asses on landing, who would you then rail against? Can you prove they wouldn’t? I have seen birds land poorly and they have had wings for millennia.

        The First amendment was written back then, too. Does that mean it should not be applied to the Internet? The courts have already decided that it does, just as they have ruled Second applies to more modern arms.

        You must be taking the role of Court Jester on this site. It is difficult to imagine anyone being this stupid, but the more you post, the more I am being convinced that it is true. Most amusingly, you keep coming back, time and time again, even after your stupid and ignorant posts are easily rebutted by a few basic facts and points of law. Sadly, you seem to believe you know better than the rest of us, even though you lack basic facts and are only capable of ad hominem attacks.

      2. Och Will, you state: “written when what;e (sic) oil lamps were in vogue” ha, you think “domestic abuser” just came along this year? I got news for ‘ya as long as there has been mankind these has been “abuse”. The founding fathers were well aware of “abuse”. Yet wrote “shall not be infringed”. Eliminating all firearms everywhere will not affect abuse, nor prevent domestic killing, only enable tyranny.

        1. I agree with your assessment. One point, In the Federalist Papers, there is a comment that says something like this; “The One who is WANTON to harm others should not have weapons.” (My words might be different, however, the WANTON part is correct.)

      3. Musta been a victu of a gummit skewlm Och. Read for comprehension much?

        NOWHERE in the piece does it say he was a “domestic abuser”. His wife left him and filed a restraining order is ALL we know. Could have been for spite, to “get even”, a :”legal” form of domestic abuse on the part of the estranged wife…..

        and NO ONE said he SHOULD HAVE BEEN ALLOWED to have a gun.

        READ the issues of the case…. if the advert for the Glock he bought been published in the local town fishwrap, would the PAPER be held liable for the murder? How about if the guy had bought a pickup truck and used that to ram into her and kill her? Or five gallons of petrol and torched her house, or place of employment?
        What was at issue in the court case was whether a service provider (seller of a handgun, Home Depot renting a truck, Chevron selling 20 litres of petrol, Home Depot selling a big framing hammer) can be held liable for the actions of a random user of the service should they do something harmful with the subject of the service provided….. the advert, in this case.

        You have a hair trigger for fault finding, and baseless blame. Grow UPPPPPP.Time maybe to get a job and move out of Mamma’s basement.

      4. Och the firearms owner did go through a background check and has no history of a criminal. No drug or Alcohol abuse. What makes you the judge that he is abusive? I have known abusive women at times! Family domestic are treated as felonies, and he would not be a firearms owner if convicted. You have him tried, convicted, and stripped. Now as he sits in the jail cell from your conviction, you get to help pay for the welfare it’s going to take to raise that family. The other judge can’t award child support and alimony because you rather see him cool his heels. His getting a job after jail is going to be slim to none, but thank you for the trial of this low life. For got to tell you, ya get to support him while he is locked up. Damn sure am glad you did your civic duty Judge. Justice and look at all the taxes you saved by supporting a family and keeping that could be abuser locked up and sheltered! Please don’t ever attempt politics and seeking a public office. There are enough Socialist Demorates running free not that it gets confusing where the good for all kicks in.

    6. If the woman was so justifiably worried about her ex, why didn’t she arm herself? A “protection order” is usually worth less than the paper its printed on. The police are not required to protect citizens from violence, per multiple supreme court decisions.

      1. Some people don’t like shooting others. Ypu’re arguing that. a known abuser should be allowed to have a gun?????? Idiotic. Apparently you’re not aware of the number of female intimate partners who get shot by their partners annually in America. Maybe you might want to read about that. Here..ViolencePolicy.org

        1. Och, isn’t shooting someone without legal justification, illegal? Isn’t it already illegal to assault or murder someone? What other laws do you propose that will make people intent on harm or murder prevent them from doing such? Of the approximate 2,000 killed by hands, feet, and fists in the USA annually, what additional laws do you propose to prevent those murders? Should we have universal background checks on hands, feet and fists? How about a “hands, feet, and fists”-free zone? It should work as well as the drug-free and gun-free zones do.

          I live close to an elementary school and a high school, yet within that protected zone, while I was at work, a drug deal occurred in my driveway. So not only did the buyer and seller illegally trespass on my property, but they ignored the drug-free zone and companying laws, but also the laws on selling and buying illegal drugs. What other laws do you propose to prevent illegal trespass and selling and buying illegal drugs, including in drug-free zone areas?

        2. Your first faux pas is to cite Violence Policy Sentre as a reliable resource. Give that one up.

          Next, NOWHERE does the article state he was an abuser, ALL we know is that he and his wife were “estranged”. Maybe she burned the toast too many times and he kicked her out. Maybe she wanted a cat and he would not allow that, preferring dogs, which he hates.

          I do not like shooting others, either. But I dislike shooting others just a little bit less than I dislike the prospect of those round about me, for whom I care VERY deeply, and/or myself, to become dead at someone else’s hands. This, should this come to that, I WILL draw my take it everywhere I go handgun out and use it as appropriate to preserve innocent life.

          You don’t wanna get venitlated by MY handgun, don’t come round seeming to be intent on taking the life of anyone around me who is innocent. I do NOT like carrying my defensive weapon everywhere. But I DO read about what goes on in my area, and around the country. So I WILL be prepared. That Book says a wise man sees trouble, and hides himself from it. That means, I see danger, and do what is necessary to protect (hide) myself, and those round about me, from that danger.

          I despise fastening my seatbelt, too… but I see far too many crashes as I go about my business, and have no delusions my own strength will enable me to hang on and protect myself should someone take to badl pranging MY car.

          YOU can do as YOU please, bot leave off trying to nannie me as to what I must/mustn’t do. Not your bailiwick.

    7. Had it not been for Armslist it would have been the dark web or the black market. People who push the ‘universal background check’ fail to acknowledge the existence of those entities. If you want something, and are willing to pay for it, you will get it, drugs, alcohol, guns, it make no difference. Happy to see that the courts in this case weren’t packed with activists.

    8. the last four paragraphs are very insightful. violence began with Cain and Abel, and will continue while there are people on earth. you cannot legislate away violent intent and mental instability. if someone is intent on hurting anyone else they will accomplish that goal no matter the weapon. If I pick up a pencil and stab you in the eye, is that not a assault weapon? many other things kill people at a much higher rate than firearms, but firearms are the only thing that will stop someone from using those things to harm you. since the beginning of history it has been our natural right of self preservation to defend ourselves against animals, both four legged and two legged. the supreme court has decided that the police do not have a responsibility to defend the populace, therefore it is our right to do so, so says the second amendment.

        1. you might do well to take out your OWN copy of that bible and READ it. A few crumbs of wisdom MIGHT rub off onto you.
          That Book is very clear as to our responsibility to preserve our own lives, and those of other innocents who are around us. Not only is it replete with examples of these things, there are clear commands to take heed to the safety and security of those round about us. WHO IS your neighbour? Jesus was asked this, then provided an illustrative story so the questioner had no doubt who IS his neighbour.

          Yes, if you KNOW the scriptures and God’s heart for us, you WOULD be well armed and skilled.

          Your own doodle needs whacked…

        2. Actually, police do indeed have a responsibility to protect the general population as a whole, but not to protect any specific individuals within the population.

          Other than that one minute point (and we know that is exactly what Greg meant), I find no incorrect or misleading statement in Greg’s post. Not one.

          Your childish and sarcastic insults, with no other explanation of motive, clearly demonstrate exactly who the “whackadoodle” is here…

          1. Yes indeed. Surprised if they played Judge, Bible and and all, how many of those nay sayers would jump in and support that family and child support, pay the man’s incarceration costs, and make up the difference of his salary to continue on with family costs. He may never find a job that paid as previous one did. Pretty plain it’s possible Uch or what ever the name, had a bad experience sometime during life. I’m thankful she isn’t a Judge. Think of how many lives she could ruin with a mind set like that. Strange but she has at least a follower that just solved it all with Biblical answers. Didn’t David Koresh in Waco do that in Texas and Janet Reno did it her way! I guess a poor motive is better than none, but prefer not to have a motive. Believe you had it concise and to the point. Many thanks!

      1. I concur with your comment. One point; It is not only our RIGHT to self-defense, but is is our RESPONSIBILITY to defend ourselves and our family. Thus sayeth the SUPREME COURT JUDGES!

        1. Right on. Use Care as about time for hibernation for those large ones to come forth. Be nice if you could keep some of the cool and rain up there. It’s been a coolish rainy spring start with plenty of great fire load just a growing nicely. Second cutting on the pasture, but it’s looking like it was be a constant battle until the burn season. Sounds like you are enjoying and acclimating to your environment! Good to hear from you off and on!

    9. It’s always a good day when the Constitution is up held,now as to how the case actually got their in the first place that is the problem.

      1. Abusers should not have firearms. Hundreds of women are killed by gun owning abusers annually in America. Looks like you could give a sh/t. Impressive. Take the false patriotism and gun sales propgfanada somewhere else Rambo.
        Stunned that the knuckle draggers at AmmoLAnd would ac tally posts an anti gun safety arctic le like this… Dumber than a sack of hammers and much more dangerous.

        1. Hundreds? Easy to throw out numbers, but the news won’t verify your statistics. Since every crime involving a gun is instantly reported.
          Looks like you’re the one spreading the propaganda.

        2. Och, it is already illegal for them to possess or acquire firearms. What laws do you propose will actually prevent them from illegally acquiring them? When you figure that out, we should use laws to prevent illegal distribution, sale, possession and use of illegal drugs. We might prevent hundreds of thousands of overdoses and deaths annually, a number orders of magnitude greater than murders, but you obviously don’t care how many die, you just want to rail against the firearms that you irrationally fear.

          1. Och,whats your point? At l0cal gunstore 1 nite.guy came in all nervous wanting the cheepest shotgun for sale n 5 rounds ammo.store owner declined him out of reason. That guy took a knife n sliced his wife n kids up let em bleed to death.

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