Sunday, September 11, 2016

WI: Madison Banning Guns on City Transit Heard at Supreme Court

In 1999, Wisconsin passed a statue which prohibited political subdivisions of the state from regulating firearms.  The statute was expanded in 2011 with the passage of the shall issue permit law, and again in 2015 when knives were included as items protected by the law.

The City of Madison political structure has been ideologically opposed to the right to keep and bear arms for decades.  It has paid out in lost lawsuits when it attempted to criminalize open carry by claiming that open carriers were "obstructing justice" and charging them with "disorderly conduct".

After Wisconsin passed the shall issue reform law, the City of Madison's Transit and Parking Commission created a rule banning weapons on the City buses.

They were sued by Wisconsin Carry, a Second Amendment activist group.  The City's argument is that the City did not pass an ordinance or a regulation, or even a resolution.  Rather, the City merely created the Transit Commission, which then created a rule.  They contend that the City is not responsible for what the Transit Commission does.

The District Court and the Appeals Court have ruled against Wisconsin Carry. Wisconsin Carry appealed to the Wisconsin Supreme Court, which heard oral arguments on Friday, 9 September, 2016. From

Wisconsin Carry's attorney, John Monroe, argued Friday that a state law preventing a city from regulating firearms should restrict the city from granting that authority to a commission, such as the transit commission in Madison.
While a city can grant power to a subdivision, he argued that "such power is limited to the power that the city has in the first place," and the state has not given the city power to pass weapons bans on buses.
Ryan J. Walsh from the Office of the Solicitor General argued on behalf of the state, which filed a friend-of-the-court brief supporting the gun rights group's position.
Walsh pointed out that the statute at issue was not intended to keep guns off municipal property.
"The legislature has not given cities a free pass to ban firearms on their property," he said.
But Madison assistant city attorney John Walter Strange Jr. claimed the challenged statute only restricts municipalities from enacting laws that are more strict than the state law.
The gun rights group's argument fails before it reaches that point, Strange added: the state forbids a city from passing regulations. In this case, the city's regulation stops at creating the transit commission. It is the commission that enacted the weapons ban.

 It appears that the city's argument fails a definitional test. Abraham Lincoln said in a famous quote:
How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn't make it a leg.
In this case, the Transit Commission is an entity created by the City of Madison.  If their argument is correct, and the city wishes to infringe on the right to keep and bear arms, (which they have abundantly demonstrated) they need only create a "weapons commission" that then passes "rules" about where weapons can be carried and how.  As the "rules" were not passed by the City, they would not be affected by the State preemption law.

Wisconsin had a clear choice in April, 2016, when voters elected Rebecca Bradley to the Supreme Court. The turnout was the highest ever for a Supreme Court race. Bradley had been appointed to the court seven months earlier by Governor Scott Walker. Bradley is a clear originalist and conservative; her opponent was unabashedly "progressive" and activist.

The Court moved further away from judicial activism when the former Chief Justice, Shirley Abrahamson, lost a lawsuit attempting to regain her position as Chief Justice.  Court members had voted for a justice to replace her, after a Constitutional amendment was passed to change the method of selection.  Chief Justice Abrahamson had been a powerful "progressive" voice on the court.

The Wisconsin Supreme Court now has a solid originalist majority.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch

How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn't make it a leg.
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Anonymous said...

This has been my argument for a very long time the Congress can not create an agency that will do the infringing for it. Thus the city can not claim no responsibility for the action of the transit authority. The state law is very specific the second amendment is very specific. No infringement and no preemption. people appointed to office are not elected laws makers, they have no rule or law making authority. What penalties are in the law for violating the law. who gets fired , who goes to jail, who pays the fine, who gets impeached? If the law makers would start rolling some heads they may get better compliance. good ole boys and cronyism has run its course, they have to start making some examples. it is time for some justice for the office holders, kick them out, put them in jail , make them pay heavy fines out of their own pockets. kick them out of politics. before the citizen run them out of town on a rail after tar and feathers. I recently found out the weight capacity of the special rope I bought. its good for 560 pounds. It is very limber and should make a good noose.

Anonymous said...

At issue here is a matter of federally protected rights. Not only are the rights specifically protected by name, and left to the people themselves, not state government (as the Tenth Amendment makes clear that people and state are two different entities) We The People had to go further yet to spell it out to the state government's specifically that they are prohibited from even making laws, much less enforcing them, when enumerated rights are at issue.

It is a profound mistake - and a dishonor to the Second Amendment and every person that advocated for it and defended it with their blood and lives, to argue this is a problem that "state laws" control or that a state court is empowered to settle.

The highest law in the land is in control here, and the highest court in the land is where this should be - not in state court.

Anonymous said...

I think a civil rights violation law suit should be filed against the individuals that approved this ruling. an important issue like this should hit deep pockets and go for the max of 15 million dollars. It is time to make some examples and put these jerks on notice. One or two wins would put all of the gun grabber in the nation on notice and in their place. It is time the tenth amendment came out of the shadows and started being enforced.

Anonymous said...

That is the problem with electing lawyers to office. they write the laws that make their profession richer when many of these issues should never reach court.