A state law that preempts local municipalities from enacting gun ordinances that are stricter than state law also bars cities from enacting rules that prohibit guns on public transportation, the state Supreme Court ruled Tuesday.
In a 5-2 decision, the court overturned an appeals court decision that allowed a Metro Transit policy to ban firearms on Madison city buses, saying it did not conflict with a state law that bars municipalities in Wisconsin from enacting ordinances or resolutions that restrict firearms more than state law.
Justice Daniel Kelly wrote the opinion for the majority. Justices Ann Walsh Bradley and Shirley Abrahamson dissented.
John Monroe, who represented Wisconsin Carry, which brought the lawsuit that led to the court’s decision, said he and Wisconsin Carry are pleased with the decision.
“The Supreme Court gave a thorough analysis of why the city of Madison lacks the authority to ban carrying guns on city buses,” Monroe said. “We are pleased with this decision and look forward to putting an end to Madison’s enforcement of its illegal rule.”
“We are very disappointed by the court’s ruling, which we believe fails to adequately acknowledge the city’s legal authority to control its own property and to protect users of our transit system,” Madison City Attorney Michael May said.
“We anticipate the court’s ruling means that other carriers who may not discriminate among their passengers — Greyhound, Van Galder, taxis and the like — will be subject to the same rule,” May added. “The city will of course comply with the ruling, while examining its other options.”
In a statement, Metro Transit said it has “a great deal of concern about the opinion that allows loaded guns on our buses.”
Metro Transit General Manager Chuck Kamp said the policy remains in effect for now, but likely within a few days those with concealed carry permits can carry firearms on buses.
Madison Mayor Paul Soglin said he intends to ask the state Legislature to amend the law to clarify that cities do have the ability to prohibit firearms on buses, just as they have the ability to prohibit guns in public buildings.
“We see no reason why it should not be permissible under the Constitution for us to do something incredibly reasonable,” Soglin said.
He said he believes such legislation would have “a very good prospect” of getting through the Republican-controlled Legislature.
Policy or ordinance?
The city had argued that the Metro policy was not the same as an ordinance or resolution imposing stricter local gun controls, something that is barred under the state law.
But the court said there was no action the city could take that would not be considered as an ordinance or resolution, given the authority it grants to the city Transit and Parking Commission, which created the rule.
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“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,” Kelly wrote. “Thus, the plain meaning of the Local Regulation Statute is that the Legislature withdrew from the city’s governing body all authority to legislate on the subjects it identifies.”
The only exception would be if the rule were no more stringent than the state law which regulates possession of guns or knives.
“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 the subject,” Kelly wrote.
In her dissent, Bradley wrote that the issue was one of statutory interpretation, one that she believes both Dane County Circuit Judge Ellen Berz and the state 4th District Court of Appeals got right. Both found that the Metro policy barring weapons aboard buses was not an ordinance or a resolution.
“A majority of this court, however, fails to exercise the same restraint,” Bradley wrote. “Discarding seminal rules or statutory interpretation, the majority slips into legislative mode, and ignores the plain meaning of the words chosen by the legislature. It rewrites the statute in a manner it wishes the legislature had chosen, a manner chosen by several other states, but not Wisconsin.”
But Kelly wrote that the Supreme Court is not “merely arbiters of word choice.” Instead, he wrote, the court must apply the plain meaning of the statute, emphasizing the word “meaning,” which he wrote is found in the statute’s “text, context and structure.”
“If a city’s governing body thereby loses authority to legislate on that subject,” Kelly wrote, “we must then consider whether a city’s sub-unit can nonetheless legislate on that subject when authority is denied to the governing body itself.”
It cannot, he wrote.
“The commission has no authority but for what it received from the city,” Kelly wrote, “and the city has no authority to legislate contrary to the boundaries established by the Local Regulation Statute. This means that if the rule is more stringent than a state statute, then to that extent the city no longer has authority to enforce it.”
As to whether the Legislature should have included the word “rules” in the pre-emption law if it meant to bar cities from making rules, as opposed to ordinances and resolutions, Kelly wrote that it would require the Legislature “to list every possible label for a legislative act” that it intended to withdraw from municipal authority.
“But this is law-making as comedy, with a hapless Legislature chasing about a wily municipality as it first enacts an ordinance on a forbidden subject, and then a policy, then a rule, then a standard, and on and on until one of them wearies of the pursuit or the other exhausts the thesaurus,” Kelly wrote.
Kelly also rejected the city’s argument that the city rule is no more stringent than a state law. The law allows individual owners of vehicles to bar guns from their vehicles, but Kelly said the city can’t argue that about buses. The city’s ownership of buses doesn’t allow it to exclude lawful passengers, Kelly wrote.
Soglin differed, saying that as owner of the buses the city should have the right to dictate behavior aboard them, including the possession of weapons.
But he said that change may rest with owners of other, private bus companies that run routes across state lines, because they would have standing to take the issue to federal court if they don’t want firearms on their buses.