March 7, 2017 – The Wisconsin Supreme Court recently ruled that state law trumps local law on the regulation of weapons, meaning the City of Madison's transit authority cannot bar concealed carry-license holders from bringing certain weapons on city buses.
Wisconsin Carry Inc., a guns rights organization, asked Madison Metro Transit to change its transit policy barring weapons on city buses after Wisconsin enacted a law, in 2011, that allows residents to carry concealed weapons with a license.
The concealed carry statute expressly allows licensed individuals to carry unloaded firearms or loaded handguns in vehicles on public highways, except railroad trains.
When Metro Transit declined to change the “bus rule,” Wisconsin Carry sought a declaration that the City of Madison’s weapons prohibition is preempted by state law.
Wisconsin Carry argued for the declaration under Wis. Stat. section 66.0409(2), which says “political subdivisions” cannot regulate knives or firearms “unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.”
The City of Madison argued that the “bus rule” was promulgated by Madison’s Transit and Parking Commission, which is not a “political subdivision” as defined in the statute, and the “bus rule” prohibiting weapons was not an “ordinance” or a “resolution.”
The statute says a “political subdivision” is a “city, village, town, or county.”
A circuit court agreed with the City of Madison, and granted the city’s motion to dismiss the case. A three-judge panel for the District IV Court of Appeals affirmed.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
But in Wisconsin Carry Inc. v. City of Madison, 2017 WI 19 (March 7, 2017), a 5-2 majority reversed the appeals court, concluding that section 66.0409(2) withdrew a municipality’s authority to regulate weapons, including rules imposed by subunits.
“We also hold that the Concealed-Carry Statute, Wis. Stat. § 175.60, preempts the City’s authority to restrict a licensee’s right to carry concealed weapons on the City’s buses so long as the licensee complies with the statute’s requirements,” wrote Justice Daniel Kelly, noting that city employees can no longer enforce the “bus rule.”
Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson. They said the issue is not about weapons on city buses or the right to bear arms. “This case presents a straightforward question of statutory interpretation,” Justice Bradley wrote.
Preemption Applies to Madison Transit’s Bus Rule
The majority noted that the state constitution and the state legislature vest authority in cities. And cities cannot transfer rule making authority that it does not possess. Here, a city ordinance granted rulemaking power to a subunit, the Transit Commission.
“Consequently, if a statute removes the authority of a municipality’s governing body to adopt an ordinance or resolution on a particular subject, the governing body loses all legislative authority on that subject,” wrote Justice Kelly.
“Because a municipality cannot delegate what it does not have, the City is entirely powerless to authorize any of its sub-units to legislate on this subject.”
The majority noted that the city vested rulemaking authority to the Transit Commission, and the Transit Commission did not draw regulatory authority from any other source.
“This means that if the [bus rule] is more stringent than a state statute, then to that extent the City no longer has authority to enforce it,” Justice Kelly wrote.
And the majority also ruled that the Transit Commission’s bus rule prohibiting weapons on city buses is dramatically more stringent than state law, because state law allows licensed individuals to carry weapons in vehicles, including loaded handguns.
Unlike private citizens, who can exclude others from possessing weapons in their private vehicles, “the City’s ownership rights in its buses are not the same as an individual’s ownership rights in his private vehicle,” Justice Kelly noted.
The majority noted that under the concealed carry statute, license holders can carry concealed weapons to the extent allowed by the statute, and the statute allows license holders to carry certain weapons on city buses despite city-based rules to the contrary.
Justice A.W. Bradley, joined by Justice Abrahamson, said the majority did not properly examine the plain meaning of the statute at issue, Wis. Stat section 66.0409.
“In reaching this ‘plain meaning’ interpretation the majority discards seminal rules of statutory interpretation, slips into legislative mode, and re-writes the way it wishes the legislature would have written it,” Justice A.W. Bradley wrote.
Bradley noted that other states’ preemption statutes have expressly prohibited the adoption of “ordinances” and “resolutions” regarding the regulation of firearms, but also expressly state that administrative actions by city or county agents are also preempted.
But in Wisconsin, section 66.0409 only prohibits “ordinances” and “resolutions” on firearm regulation, which are imposed on the general public.
“[T]he bus rule is not a generally-applicable legislative enactment like an ordinance,” Justice A.W. Bradley wrote. “Bus policies are limited in scope and apply only to members of the public who choose to ride a Madison Metro bus.”
The dissent also noted a Wisconsin Attorney General opinion from 2011, issued after the concealed carry law was enacted, which states that public and private entities “may prohibit or restrict the possession and transport of weapons.”