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  • WisBar News
    August 11, 2015

    Madison Transit Can Prohibit Concealed Carry on Buses, Appeals Court Says

    Joe Forward

    Aug. 11, 2015 – A state appeals court has ruled that the City of Madison’s Transit and Parking Commission can enforce an agency rule that prohibits weapons on city buses, even weapons carried legally by people with concealed carry permits.

    Wisconsin Carry Inc., a guns rights organization, filed a lawsuit seeking a declaration that Wis. Stat. section 66.0409 “preempts” Madison Transit’s “bus rule.”

    That statute, in part, says “political subdivisions” cannot enact ordinances or adopt resolutions that regulate the possession of any firearm “unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.”

    But in Wisconsin Carry Inc. v. City of Madison, 2015AP146 (Aug. 6, 2015), the District IV Appeals Court upheld the “bus rule,” concluding that Madison’s Transit Commission is not a “political subdivision” and the bus rule is not an “ordinance” or a “resolution.”

    The three-judge panel, in an opinion by Judge Paul Lundsten, explained that the panel’s conclusion was limited to whether section 66.0409 preempted the bus rule, not whether the rule was preempted by other statutes dealing with local firearm regulation.

    “If Wisconsin Carry meant to make those arguments, it has failed to adequately develop them,” Judge Lundsten wrote. “[O]ur discussion is limited to whether § 66.0409 preempts the bus rule and not whether the statute preempts the city ordinance under which the commission acted.”

    The panel noted that “political subdivisions,” under the statute, are cities, villages, towns, or counties, and not agencies. The panel also agreed with the circuit court, which concluded that section 66.0409 plainly preempts only “ordinances” and “resolutions.”

    “Wisconsin Carry does not argue that a rule adopted by a city agency, such as the commission here, fits within the plain meaning of either ‘ordinance’ or ‘resolution’ as those terms are used in the statute,” Judge Lundsten wrote.

    “Instead, Wisconsin Carry effectively argues that the legislature did not mean what it said” and “asks us to skip over an analysis of the words that the legislature chose and instead surmise that the legislature, in enacting Wis. Stat. § 66.0409, intended to achieve a more general preemption of locally generated firearms regulation.”

    Like the circuit court, the panel noted that the legislature failed to use language that clearly prohibited firearm regulations by local agencies, and “judicial restraint dictates that courts ‘assume that the legislature’s intent is expressed in the statutory language.’”

    The panel noted that the legislature is free to amend the statute and rejected Wisconsin Carry’s claim that it would be absurd to think the legislature would preempt municipalities on firearm regulation but not municipal agencies or commissions.

    “[I]t may be that the legislature did not impose a more sweeping prohibition precisely because the legislature intended to leave the door open to more limited regulation of firearms, such as the bus rule here,” Judge Lundsten wrote.



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