Wednesday, March 08, 2017

Wisconsin Supreme Court Rules City has no Authority to Ban Weapons from Buses

After nearly four years in the courts, Wisconsin Carry, Inc. won a historic victory for the right to bear arms in Wisconsin. Wisconsin Carry had sued the City of Madison, because the City had refused to remove a rule that had been instituted in 2005 by the City Transit and Parking Commission. The rule forbid the transportation of any weapons on city buses. The case started in 2013.

Wisconsin has a strong state constitutional protection for the bearing of arms. Wisconsin Carry did not invoke that protection directly, nor did they cite the Second Amendment.  Wisconsin had passed a shall issue statute in 2011, Act 35, which assured permit holders the ability to carry "anywhere in the state" with certain exceptions.  In 2013, the legislature passed a further statute to strengthen state pre-emption of firearms laws.  That statute forbade local governments from passing ordinances or resolutions that regulated the possession, bearing or transportation of any knife or firearm, among other things. Wisconsin Carry relied on Act 35 and the "Local Regulation Statute" for their arguments.

Wisconsin Carry decided to focus on striking down the City of Madison weapon ban, and not to broaden their argument to constitutional issues.  That may have been a tactical error.

At the oral arguments, the Supreme Court justices asked if there were any constitutional arguments to strike down the City bus ban.  The City said, there is no constitutional argument here.  Wisconsin Carry repeatedly refused to claim a constitutional argument, saying that they had not included one in their briefs. The oral arguments may be played here. The case is Wisconsin Carry, Inc. v. City of Madison.

The makeup of the court has changed considerably in the last four years, becoming more originalist and textualist.  There are now only two far left justices on the court, Bradley and Abrahamson.  Abrahamson has been removed from her position as chief justice by a constitutional amendment, but she is still on the Court.

Five months after the oral arguments, the Wisconsin Supreme Court delivered its opinion. It is worth noting that the court gave a summary of Second Amendment jurisprudence and of Article I, Section 25, the Wisconsin constitutional protection for the right to bear arms.  The Court characterized the rights in the amendments as fundamental and pre-existing prior to the Constitution.

The Court struck down the decisions of the local court and the appeals court, and ruled that the bus rule violated both Act 35 and the Local Regulation Statute. The Court did not rule on constitutional grounds.

From the decision at
We hold today that the Local Regulation Statute, Wis. Stat. §66.0409, has withdrawn authority from the City to regulate, either through its governing body or its sub-units (and without regard to the label it affixes to its regulation or manner of regulating), the subjects, identified in the Local Regulation Statute in a manner that is more stringent than an analogous state statute.

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.
In the dissent, Justices Bradley and Abrahamson objected to the discussion of the Second Amendment and Article I, Section 25 of the Wisconsin Constitution, saying that the case had no constitutional question, and the plaintiffs had repeatedly affirmed that in oral arguments.

From listening to the oral arguments and reading the decision, it appears a majority of justices would have liked to be able to rule on the constitutionality of the "rule" that they struck down. They felt constrained to do so, because the plaintiffs refused to take the hint and make a constitutional argument.  In the dissent, Justice Ann Walsh Bradley, J. , strongly suggests that is what is going on. She writes: 
As a harbinger of things to come, the majority begins its analysis not with the statute to be examined, but with a discussion of the Second Amendment of the United States Constitution, examining the constitutional right to bear arms. Majority op.,¶¶8-12.
The previous Supreme Court, under then Chief Justice Abrahamson, had given only the most narrow of meanings to Article 1, Section 25 of the Wisconsin Constitution. 
 The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose. (Art. 1, § 25)
Bradley cites the first time the Wisconsin Supreme Court ruled on a case involving the amendment, in 2003. Bradley quotes a previous justice, Prosser, who argued that the right is neither fundamental, not of an individual nature. In that decision, the justices cited several other states that had effectively neutered their own state constitutions' right to arms. Rather than simply apply the words of Wisconsin's new amendment, the 2003 case was an example of an "everyone else has neutered amendments we do not like" argument.

Elections have consequences. The new makeup of the Court may be willing to apply ordinary rules of construction to the language of the Second Amendment and Wisconsin's Article 1, Section 25. The previous Court seemed intent on finding ways to render them toothless and without effect.

In Madison, and all across the State of Wisconsin, individuals may now exercise their right to bear arms on public transport, without fear of legal prosecution.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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stworldtees said...

nice helpful info

Anonymous said...

This case highlights my [point about attorneys, they will not settle the second amendment issue but they will argue cases in a way that will insure they get many more cases they can charge for. the bill of rights is the Bill of rights its purpose is to prevent anyone, primarily the state governments and the federal government from infringing in any way on our bill of rights. the bill of rights is for everyone in every state, no matter what state they are in. states have no authority to modify the second amendment. the tenth amendment prohibits states from writing anything they please that will conflict with the federal constitution or federal law. If separation of powers exists then states can not amend the second amendment. Example bank robbery is a federal crime and a felony. states can not make it no crime or a misdemeanor. the second amendment says we can carry any time any where and supreme court rulings back that up. You are an individual any where you happen to be in this country. No state has the authority to deny any of our rights in the bill of rights. maybe you should read the ninth amendment. we have inalienable rights beyond what the bill of rights states and specifically protect. circumstances do not change what is written. flint lock or M-16 they are all protected by supreme court ruling. we are all individual whether in a buss or walking down the street any where we happen to be our second amendment rights are protected. Unremunerated rights are also protected..

ExpatNJ said...

This is a perfect example when concealed-carry (even without the 'magic paperwork' - i.e. a 'permit'), is beneficial to a Free Citizen.

Arm-up, cover-up, board-up, and shut-up. What the bus driver or passengers don't know about a peaceable passenger being armed doesn't concern them. What's the bus line gonna do ... frisk everyone before getting on?

Note #13: "Vulgar language ... not allowed". The policy disarms passengers first, before shutting them up. This is a sequence similar to Democrat NJ Governor Florio followed in 1990. How about ACLU taking aim at this policy on 1A grounds?

The true bottom-line is that government must not be allowed to provide a service that private industry could and should provide. Shades of the Montgomery Alabama Bus Boycott!

Anonymous said...

Every state that has joined our union had to write a constitution to be approved before the state was admitted. the states could not write in things that conflicted with the federal constitution so how did they get around that, they started passing laws for anything they did not cover in their original constitutions. tons of laws that violate our ninth amendment rights are on the books and because the state did not write the authority in their constitutions, the authority to write those laws does not exist. states rights are limited by the tenth amendment.. If the authority is not written in the state constitution it does not exist.
amend the constitution or void the law. If the citizens did not delegate the authority it does not exist. the authority must be specific not an interpretation. The constitution must say in specific wording that the state has the authority to require gun carry permits for public safety. criminals are in the public so who is being protected? It can not be subjective it must be specific. Unless you are under martial law a curfew is unconstitutional.