Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wisconsin Carry, Inc. v. City of Madison

Supreme Court of Wisconsin

March 7, 2017

Wisconsin Carry, Inc. and Thomas Waltz, Petitioners-Appellants-Petitioner,
v.
City of Madison, Respondent-Respondent-Respondent.

          ORAL ARGUMENT: September 9, 2016

         REVIEW of a decision of the Court of Appeals. 2015 WI.App. 74 Reported at: 365 Wis.2d 71, 870 N.W.2d 675

         Circuit Court, Dane County, Ellen K. Berz Judge.

          For the petitioners-appellants-petitioners, there was a brief by John R. Monroe and John Monroe Law PC, Rosewell, GA, and oral argument by John Monroe

          For the respondent-respondent, the cause was argued by John Walter Strange Jr., assistant city attorney, with whom on the brief was Michael P. May, city attorney.

          For the amicus curiae, there was an amicus curiae brief by Misha Tseytlin, solicitor general, Brad Schimel, attorney general, and oral argument by Ryan J. Walsh, Lake Mills on behalf of the Wisconsin Department of Justice.

          DANIEL KELLY, J.

         ¶1 The question before the court is whether the City of Madison (the "City"), through its Transit and Parking Commission (the "Commission"), may prohibit passengers from bearing weapons on the buses it operates as "Metro Transit."[1]

         I. BACKGROUND

         ¶2 The Commission adopted a rule on July 12, 2005, to address the conduct of passengers using Metro Transit's public transportation services (the "Rule").[2] The Rule identifies several types of unacceptable conduct, any one of which subjects the offending individual to potential expulsion from city buses. As relevant here, the Rule says:

The following conduct is prohibited in all Metro facilities, including but not limited to, buses . . . . Any individual observed engaging in the conduct may be told by a Bus Operator or Supervisor or other authorized individual to leave the facilities immediately and may be subject to arrest by proper authorities[:]
. . . .
• Bringing any items of a dangerous nature onboard buses including: weapons (pistols, rifles, knives or swords) . . . .[3]

         ¶3 Petitioners, Wisconsin Carry, Inc. and Thomas Waltz ("Wisconsin Carry"), contacted Metro Transit[4] and asked that it amend the Rule to harmonize it with 2011 Wisconsin Act 35 ("Act 35"), which (amongst other things) authorized Wisconsin residents to carry concealed weapons upon obtaining the required license. Wisconsin Carry also asserted that Wis.Stat. § 66.0409 (2013-14)[5] deprived the City of its erstwhile authority to enforce the Rule's prohibition of weapons on the City's buses. This statute, which imposes restrictions on certain local regulations, states that:

Except as provided in subs. (3) and (4), no political subdivision may enact or enforce an ordinance or adopt a resolution that regulates the . . . possession, bearing, [or] transportation . . . of any knife or any firearm . . . unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

Wis. Stat. § 66.0409(2).[6] We will refer to this statute as the "Local Regulation Statute".

         ¶4 Metro Transit declined Wisconsin Carry's invitation to amend the Rule. Wisconsin Carry subsequently filed a complaint[7] seeking a declaration that the City of Madison's authority to enforce the Rule has been preempted by state law. The City moved to dismiss, arguing that the complaint failed to state a claim upon which relief could be granted. Petitioners filed an amended complaint that, as relevant here, identified Madison, Wis., Gen. Ordinances § 3.14(4)(h), as the legislation offending the Local Regulation Statute.

         ¶5 That ordinance created the City's Department of Transportation, as well as the Commission. It charges the Commission with the responsibility to

develop and recommend to the Common Council policies on the various elements of transit and parking and transit and parking facilities for the purpose of providing for the safe, efficient and economical movement of persons and goods in the City of Madison and the metropolitan area consistent with the Commission's mission to support the City's distinct and quality neighborhoods where people will want to live, work, do business, learn and play by providing comfortable, safe and efficient transportation.

         Madison, Wis., Gen. Ordinances § 3.14(4)(g) (2007) (the "Ordinance"). In pursuit of those ends, the Ordinance empowers the Commission to adopt certain written requirements:

To accomplish these objectives the Transit and Parking Commission shall adopt and publish in writing standards, warrants, objectives and criteria for transit, parking and paratransit operations, services and facilities in order that such operations, services and facilities function as an integrated and coordinated part of the overall adopted transportation policy.

Id. It may also establish rules and procedures as necessary to implement its duties: "The Transit and Parking Commission shall be empowered to establish such rules and procedures as may be necessary to carry out the purpose and provisions of this ordinance." Id., § 3.14(4)(h).

         ¶6 After Wisconsin Carry filed its amended complaint, the City renewed its motion to dismiss, which the circuit court[8] granted. Wisconsin Carry appealed and the court of appeals, in a published opinion, affirmed. We granted Wisconsin Carry's petition for review, and now reverse.

         II. STANDARD OF REVIEW

         ¶7 A motion to dismiss tests the legal sufficiency of a complaint, which a court will grant only if there are no conditions under which a plaintiff may recover. Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis.2d 555, 699 N.W.2d 205. Such a motion requires a court to accept all of the complaint's factual assertions as true, along with the reasonable inferences one may take from them. Id. Resolving a motion to dismiss, therefore, involves only a question of law. John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303 Wis.2d 34, 734 N.W.2d 827. We review questions of law de novo; we do not defer to the circuit court or the court of appeals, but we benefit from their analyses. State v. Popenhagen, 2008 WI 55, ¶32, 309 Wis.2d 601, 749 N.W.2d 611.

         III. ANALYSIS

         A. Constitutional Background

         ¶8 Wisconsin Carry claims the Rule abridges the right to possess weapons on the City's buses, [9] so we will begin our analysis with a brief rehearsal of the nature of the right at issue.[10] The United States Constitution commands that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. More recently (less than twenty years ago, in fact), the people of Wisconsin enshrined the protection of this right in our own constitution: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Wis. Const. art. I, § 25.

         ¶9 This is a species of right we denominate as "fundamental, " reflecting our understanding that it finds its protection, but not its source, in our constitutions.[11] The right's existence precedes, and is independent of, such documents. Bearing arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." United States v. Cruikshank, 92 U.S. 542, 553 (1875); see also District of Columbia v. Heller, 554 U.S. 570, 592 (2008) ("[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed . . . .'").

         ¶10 Whether the Second Amendment protects this right only when corporately exercised in the context of a militia, as opposed to a person exercising it individually, has been a source of contention. That question, however, received an authoritative answer in Heller. After extensive textual and historical analysis, the Supreme Court concluded that the purpose of the amendment is to "guarantee the individual right to possess and carry weapons in case of confrontation." Heller, 544 U.S. at 592 (emphasis added). Wisconsin's protection of this right does not contain the grammatical and linguistic oddities that necessitated Heller's exhaustive treatment of the question. It is, instead, a straightforward declaration of an individual right to keep and bear arms for any lawful purpose.

         ¶11 One way in which people in Wisconsin may exercise this individual right is by obtaining a license to carry concealed weapons. The genesis of this opportunity was Act 35, now codified (in part) as Wis.Stat. § 175.60. Upon obtaining such a license, the "licensee or . . . out-of-state licensee may carry a concealed weapon[12] anywhere in this state except as provided under subs. (15m) and (16) and ss. 943.13(1m)(c) and 948.605(2)(b)1r." Wis.Stat. § 175.60(2g). We will refer to this statute as the "Concealed-Carry Statute".

         ¶12 Act 35 also eliminated the prohibition against carrying a loaded handgun in a vehicle. The statutory provision governing the interaction between weapons and vehicles now says: "Except as provided in sub. (4), no person may place, possess, or transport a firearm . . . in or on a vehicle, unless one of the following applies: 1. The firearm is unloaded or is a handgun." Wis.Stat. § 167.31(2)(b). We will refer to this statute as the "Vehicle Statute." A "firearm" is "a weapon that acts by force of gunpowder." Wis.Stat. § 167.31(1)(c). For the purpose of this statute, "vehicle" means "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains." Wis.Stat. §§ 167.31(1)(h), 340.01(74).

         ¶13 With that brief refresher, we turn now to the Rule. B. Effect of the Local Regulation Statute

         ¶14 Wisconsin Carry tells us that the City's Common Council, and all of its subordinate entities, may regulate the possession, bearing, and transportation of arms only to the extent allowed by the Local Regulation Statute. One of the key limitations imposed by that statute, they say, is that regulations on this subject may be no more stringent than analogous state statutes. They argue that, inasmuch as the Rule entirely forbids the possession, bearing, and transportation of arms on city buses, the City may no longer enforce it because there is no state statute so stringent.

         ¶15 The City responds that the Local Regulation Statute has nothing to say about the Rule. First, it asserts that the Rule is no more stringent than state statutes. Additionally, because it owns the buses, the City says it may keep them weapon-free just as readily as a private individual may prohibit weapons in his own vehicle. Second, even if it were more stringent than state statutes, the City says the Local Regulation Statute's plain terms express the legislature's decision to leave municipal regulations like the Rule alone. The statute applies only to "political subdivisions, " which (according to the internal definitions) comprise only cities, villages, towns and counties. Wis.Stat. § 66.0409(1)(b). The Commission is none of those and so, according to the City, it is unencumbered by the statute.[13] Further, the statute's strictures apply to a political subdivision's "ordinances" and "resolutions." Wis.Stat. § 66.0409(2). The City says a "rule" is different from ordinances and resolutions, and therefore lies beyond the statute's reach.

         ¶16 Resolving this case will therefore require that we determine whether the Local Regulation Statute applies to the Commission and the rules it adopts, and (if so) whether the Rule is impermissibly more stringent than analogous state statutes.[14] We must also compare the Rule to the Concealed-Carry Statute to determine whether the latter preempts the former.

         1. Applicability to the Commission

         ¶17 We will begin with whether the Local Regulation Statute affects rules adopted by the Commission. If it does not, there is no need to determine whether the Rule is more stringent than a state statute.

         ¶18 With its frequent reference to the "plain text" of the Local Regulation Statute, the City urges us (sotto voce, to be sure) to engage the "plain meaning" rule as we consider the statute's relationship to the Commission and its Rule. This axiom, which is the bedrock of the judiciary's methodology, says that "[i]f the plain meaning of the statute is clear, a court need not look to rules of statutory construction or other extrinsic aids. Instead, a court should simply apply the clear meaning of the statute to the facts before it." UFE Inc. v. Labor and Indus. Review Comm'n, 201 Wis.2d 274, 281-82, 548 N.W.2d 57 (1996) (citation omitted).

         ¶19 We must, however, keep in mind that this axiom does not reduce the judicial function to mechanically comparing the words of a statute to the name given a legislative enactment, or the body enacting it. We are not merely arbiters of word choice. If we were, we would need do nothing more than confirm that "rule" is a word different from "ordinance" and "resolution, " and that "commission" is etymologically distinct from "city, " "village, " "town, " and "county."

         ¶20 It is, instead, the "plain meaning" of a statute we must apply. We find that meaning in the statute's text, context, and structure: "[S]tatutory interpretation 'begins with the language of the statute.' . . . [It] is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes . . . ." State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis.2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612 N.W.2d 659). We examine the statute's contextualized words, put them into operation, and observe the results to ensure we do not arrive at an unreasonable or absurd conclusion. Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably, to avoid absurd or unreasonable results.").[15] Here, the process requires us to survey how a city's legislative authority is affected by a statute forbidding it from enacting or enforcing an ordinance or resolution on a given subject. If a city's governing body thereby loses authority to legislate on that subject, 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.

         a. Municipal Authority

         ¶21 It is true, and ever has been, that cities exercise only such authority as they receive from our constitution and statutes. "[C]ities are creatures of the state legislature that have no inherent right of self-government beyond the powers expressly granted to them." Black v. City of Milwaukee, 2016 WI 47, ¶23, 369 Wis.2d 272, 882 N.W.2d 333 (quoting Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶89, 358 Wis.2d 1, 851 N.W.2d 337 (citing Van Gilder v. City of Madison, 222 Wis. 58, 72-73, 267 N.W. 25 (1936) (citing City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923)))) (internal quotation marks omitted). And if a statute may confer authority on a city, a statute may take it away. City of Trenton, 262 U.S. at 187 ("A municipality is merely a department of the state, and the state may withhold, grant, or withdraw power and privileges as it sees fit.").

         ¶22 One necessary corollary to this principle is that a city may not create authority ex nihilo, either for itself or its divisions. Were it otherwise, the ability of a constitution and legislature to control a city's quantum of authority would come to naught--upon the loss of some measure of authority, an enterprising city could simply declare it reinstated. But this is not part of a city's remit, and so there is no mechanism by which it may regain withdrawn authority but by legislative decree or constitutional amendment.

         ¶23 In light of these principles, we must determine what the Local Regulation Statute means when it says "no political subdivision may enact or enforce an ordinance or adopt a resolution that regulates the . . . possession, bearing, [or] transportation . . . of any knife or any firearm . . . ." Wis.Stat. § 66.0409(2). The City acknowledges that this provision eliminates the common council's authority to enact or enforce an ordinance or resolution on the identified subject (unless it falls within the saving clause). Therefore, the question (at this stage of the analysis) is whether ordinances and resolutions comprise a municipal governing body's complete legislative authority. If they do, then losing the ability to adopt an ordinance or resolution on a particular subject represents the complete withdrawal of authority to legislate on that subject. And if the City has no legislative authority with respect to that subject, it necessarily has nothing to delegate to its divisions.[16]

         ¶24 With respect to the nature of ordinances and resolutions, the City directs our attention to Cross v. Soderbeck, 94 Wis.2d 331, 288 N.W.2d 779 (1980). There, we said:

A municipal ordinance or by-law is a regulation of a general, permanent nature, enacted by the governing council of a municipal corporation. . . . A resolution, or order as it is sometimes called, is an informal enactment of a temporary nature, providing for the disposition of a particular piece of administrative business of a municipal corporation. . . . And it has been held that even where the statute or municipal charter requires the municipality to act by ordinance, if a resolution is passed in the manner and with the statutory formality required in the enactment of an ordinance, it will be binding and effective as an ordinance.

Id. at 342 (citing Wis. Gas & Elec. Co. v. City of Ft. Atkinson, 193 Wis. 232, 243-44, 213 N.W. 873 (quoting 19 Ruling Case Law 895, § 194 (1917)) (internal quotation marks omitted)).

         ¶25 From this we may derive three principles useful to our inquiry. First, ordinances are municipal legislative devices, formally enacted, that address general subjects in a permanent fashion. Second, resolutions are those informal municipal legislative acts that address particular pieces of administrative business in a temporary fashion. And third, the label given to a legislative device is not dispositive--one identifies the device's taxonomy functionally.

         ¶26 The scope of legislative activity covered by ordinances and resolutions, therefore, extends to formal and informal enactments that address matters both general and specific, in a manner meant to be either temporary or permanent, and which can be characterized as administrative or otherwise. And we will treat a municipality's legislative device as an ordinance or resolution, regardless of how it may be denominated, so long as it functions within the scope of this definition.[17]

         ¶27 It is apparent from this that there is no legislative action a municipality could take, either in form or function, that would not come within the ambit of "ordinance" or "resolution." 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.

         ¶28 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, including the "possession, bearing, [or] transportation . . . of any knife or any firearm" unless the legislation is "the same as or similar to, and no more stringent than, a state statute." Wis.Stat. § 66.0409(2). 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.[18]

         ¶29 The City notes, and properly so, that it has no ordinance addressing, in explicit terms, the possession, bearing, or transportation of knives or firearms. In the absence of such an ordinance, the City says there is nothing on which the Local Regulation Statute may operate.

         ¶30 But the City itself necessarily identifies the Ordinance as the legislation that authorizes the regulation of firearms. This is so because the City must appeal to it for the Rule's efficacy. Unless the Commission has some source of authority independent of the City, its authority to adopt the Rule must flow from the City to the Commission through the Ordinance. By claiming the Rule is authoritative, the City is itself telling us that the Ordinance contains a firearms-regulating grant of authority. And that is how the Ordinance comes within the Local Regulation Statute's purview.

         ¶31 Put another way, the City may not simultaneously maintain that the Commission has the authority to regulate firearms while denying that any of its ordinances authorize the regulation of firearms. Cities may, and often do, delegate authority to their sub-units without explicitly describing each and every subject the sub-unit may address. The broader the grant of authority, the more general the language. That is true here--the Ordinance is a very generalized grant of authority to the Commission to address mass transit issues.

         ¶32 But the generalization does not mean the grant of authority to regulate firearms is not there; it just means it is not explicit. It is the Ordinance's implicit grant of firearm-regulating authority on which the Local Regulation Statute performs its work. And that work consists of restricting the Ordinance's grant of firearm-regulating authority. So, if the Commission has the authority to regulate firearms more stringently than state statutes, it must find the source of that authority somewhere other than the City.

         b. Potential Alternative Sources of Commission Authority

         ¶33 To discover the full scope of the Commission's authority, we must determine what manner of entity it is, and whether it draws regulatory authority from some source other than the City. The City's ordinances say a "commission" is "a Sub-unit of the City." Madison, Wis., Gen. Ordinances § 33.01(3)(c). The City creates "standing" sub-units (which are those meant to exist permanently) by ordinance. See id. § 33.01(3)(e) & (4)(b). The Ordinance makes the Commission a standing sub-unit.

         ¶34 The Ordinance provides that the Commission is a public utility within the meaning of Wis.Stat. § 66.0805. This statute grants municipalities the authority to create commissions to govern public utilities, but it contains no independent grant of authority to such commissions.[19] As a public utility, the Commission exercises its authority under the supervision of the City: "The board of commissioners, under the general control and supervision of the governing body, shall be responsible for the entire management of and shall supervise the operation of the utility." Wis.Stat. § 66.0805(1). The City exercises its supervisory authority via ordinance: "The governing body shall exercise general control and supervision of the commission by enacting ordinances governing the commission's operation." Id.

         ¶35 The Ordinance says the Commission is also a transit commission within the meaning of Wis.Stat. § 66.1021. This section grants municipalities the authority to create transportation systems as well as commissions to govern them: "A city . . . may enact an ordinance for the establishment, maintenance and operation of a comprehensive unified local transportation system . . . . 'Transit commission' or 'commission' means the local transit commission created under this section." Wis.Stat. § 66.1021(1), (3)(b). The statute does not directly grant the Commission any authority, but it does identify some of the authority the Commission must be furnished by the municipality's enacting ordinance, [20] none of which is at issue here.

         ¶36 The Ordinance contains its own description of the authority the Commission is to exercise. So, for example, it has the authority to recommend transit-related policies to the common council for its consideration: "The Transit and Parking Commission shall make recommendations to the Common Council regarding policies on all transit and parking matters . . . ." Madison, Wis., Gen. Ordinances § 3.14(4)(a); see also id. § 3.14(4)(g) ("It shall be the general duty of the Transit and Parking Commission to develop, and recommend to the Common Council policies on the various elements of transit and parking and transit and parking facilities for the purpose of providing for the safe, efficient and economical movement of persons and goods in the City of Madison and the metropolitan area . . . .").

         ¶37 Finally, the Commission may adopt "standards, warrants, objectives and criteria for transit, parking and paratransit operations" pursuant to its authority under the Ordinance. Id. It may also establish rules and procedures as necessary to implement its duties. Id. § 3.14(4)(h). With respect to transit, the Commission's duty is to "provide overall management, operation and control of the assets of the City of Madison transit and paratransit transportation system to ensure that it functions as an integrated part of the overall transportation system." Id. § 3.14(4)(h)2.

         ¶38 The City has not identified, and we have not found, any authority for the Commission's existence apart from what we just described. It is apparent from these provisions that the Commission is entirely a creature of the City and exercises only that amount and type of authority it receives from the City. The Ordinance, by its express terms, created the Commission and infused it with enumerated responsibilities.[21] Although the statutes relating to public utilities and transit commissions describe certain attributes the governing commissions must have, they do not, by their own force, call the Commission into existence or endow it with authority independent of what they confer on the City. Instead, they simply grant municipalities the authority to create the commissions in the manner and with the attributes the statutes prescribe.

         ¶39 The Commission has no authority but for what it received from the City, 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.

         c. Purpose of the Local Regulation Statute

         ¶40 Before we measure the Rule's stringency, we pause to address the City's argument that this result would frustrate the statute's purpose.[22] The City speculates that the legislature wished to limit a city's authority to regulate firearms, but only when the city's governing body acts qua governing body. It says the statute's plain reference to only ordinances and resolutions demonstrates that the legislature intended to leave intact a municipal sub-unit's authority to regulate firearms.[23]

         ¶41 In the City's reading of the statute, the legislature made a conscious decision to withdraw firearms-regulating authority from a municipality's democratically-accountable governing body, while leaving that authority entirely undiminished when exercised by the municipality's democratically-unaccountable sub-units.[24] The only explanation offered for why the legislature would trust firearms-regulating authority to a municipal sub-unit, but not the governing body to which it owes its existence and power, is that the latter's legislative authority is broader than that of the former. The implication is that municipalities are eager to impose aggressive firearms regulations, and that impulse must be curbed by ensuring that any such regulations could be adopted only piecemeal, within the limited portfolio of each democratically-unaccountable sub-unit.

         ¶42 But if the City's speculation is correct, if the legislature really did adopt the Local Regulation Statute to restrict the scope of any given municipal firearms regulation, it chose a singularly ineffective means of doing so. It does not require mastery of three-dimensional chess, nor even checkers, to devise a strategy for defeating such an objective.

         ¶43 Deprived of native authority to regulate firearms, a city might simply create a "public-safety commission" with a mandate to secure the public's well-being in all publicly-accessible spaces. The enabling ordinance would make no specific reference to firearms, so (under the City's theory) it would escape the Local Regulation Statute's attention. The public-safety commission would then adopt the same city-wide firearms regulation the city's governing body could not itself adopt. The scope of the resulting regulation would not have suffered the least restriction by virtue of the Local Regulation Statute. Alternatively, a municipality bent on adopting comprehensive firearms regulations could simply create a number of limited-portfolio sub-units whose cumulative scope of authority would equal that of the municipality. The sub-units could then adopt firearms regulations that would differ in no meaningful way from a single regulation adopted by the municipality's governing body. Functionally, this imputed purpose would leave the statute with neither meaning nor effect.

         ¶44 In light of these obvious workarounds, we are unwilling to join the City's speculation that the legislature chose to entrust firearms-regulating authority to municipal sub- units, but not their democratically-accountable progenitors.[25] If the legislature actually intended such an easily thwarted purpose, it gave us no textual clues by which to discern it.

         ¶45 Finally, the City asserts that if the legislature had intended to include "rules" in the realm of prohibited legislative acts, it would have said so. It observes that other states, when they restricted local firearms regulations, listed other types of legislative devices in their prohibitions. For instance, it notes that Idaho's statute applies to "any law, rule, regulation, or ordinance." Idaho Code Ann. § 18-3302J (2016).[26] And Florida's statute refers not just to ordinances, but also administrative regulations and rules. Fla. Stat. Ann. § 790.33 (West 2007 & Supp. 2016).[27] And Kansas's statute covers "administrative actions." Kan. Stat. Ann. § 12-16, 124 (Supp. 2015).[28] And so on. But if the label of a legislative act is dispositive, then Idaho's local communities are vulnerable to local "policies" regulating firearms, Florida would presumably allow "resolutions" restricting firearms, and Kansas (apparently) is willing to countenance local regulations in the form of an "ordinance." Here in Wisconsin, the legislature would need to be even more cognizant of the labels a municipality might attach to its legislation: The Ordinance, for example, authorizes the Commission to adopt, amongst other things, rules, procedures, standards, warrants, and objectives.

         ¶46 Accepting the City's argument would require the legislature to list every possible label for a legislative act before we could conclude that its intention was to withdraw from a municipality the authority to regulate a particular subject. And it would further require that the legislature amend the statute every time a municipality conceived of a new label for its legislative acts. 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.[29] The City advocated its interests in a competent and professional manner, so we are confident it does not really intend that we understand the legislative process in this fashion.[30] Thus, in the absence of any discernible reason to do so, we will not.[31]

         2. Stringency

         ¶47 Because we conclude that the City--acting either through its governing body or sub-units--has no authority to "regulate[] the . . . possession, bearing, [or] transportation . . . of any knife or any firearm . . . unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute, "[32] we must now determine whether the Rule satisfies the stringency standard.[33] It is the City's prerogative to choose the legislation against which we will compare the Rule (at least initially), and it has chosen the Vehicle Statute.

         ¶48 The Vehicle Statute governs the safe use and transportation of firearms. The specific portion of the statute the City recommends for our consideration prohibits the placing, possession, or transportation of a firearm in a vehicle unless it is unloaded or a handgun. Wis.Stat. § 167.31(2)(b)1. That is to say, the Vehicle Statute allows a person to carry a loaded handgun, or an unloaded firearm of a different type, in a vehicle. A vehicle (for purposes of this statute) includes "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except railroad trains, " as well as snowmobiles, all-terrain vehicles and electric personal assistive mobility devices. Id. §§ 167.31(1)(h), 340.01(74). We trust it is beyond cavil that a bus is a vehicle within the scope of this definition.

         ¶49 So in choosing the Vehicle Statute for comparison, the City asserts that a total ban on carrying any firearm on a bus is no more stringent than a statute that bans only loaded non-handguns on a bus. These provisions occupy almost perfect legislative antipodes. Unless the City has a method by which it can explain how the distance between the two is more apparent than real, we must conclude the Rule is impermissibly more stringent than the Vehicle Statute.

         ¶50 The City says it can harmonize the Vehicle Statute and the Rule by observing that the former allows an individual to carry a firearm only in "a" vehicle, not "any" vehicle or "all" vehicles. The City does not explain what difference it would make if the legislature had chosen "any" or "all" instead of "a." Instead, it skips almost immediately to the conclusion that the legislature's word choice created maneuvering room for restrictive municipal firearms regulations. There is no readily-apparent principle that would link the City's proposition to its ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.