Wisconsin’s Supreme Court on Tuesday sided with gun rights advocates and ruled that Madison’s transit agency cannot ban passengers from bringing weapons on the city’s buses.
The 5-2 decision reversed decisions by a circuit judge and the Court of Appeals, slamming the brakes on Madison’s drive to find a legal route to keeping guns off public transportation. Other local transit agencies, like Milwaukee County Transit System, never tried to resist the gun lobby on the issue.
“The Supreme Court gave a thorough analysis of why the City of Madison lacks the authority to ban carrying guns on city buses,” said John Monroe, attorney for the plaintiffs. “We are pleased with this decision and look forward to putting an end to Madison’s enforcement of its illegal rule.”
Madison Mayor Paul Soglin said at an afternoon news conference that the city plans to ask the Legislature to amend the law to allow local governments to ban guns from buses, as they limit weapons in buildings, and might also explore property rights claims in federal court.
Chuck Kamp, director of Metro Transit, said his staff and city attorneys were meeting Tuesday. “We want to communicate the change (in policy) accurately.”
Justice Daniel Kelly wrote the nearly 50-page majority opinion. Justice Ann Bradley dissented, once again accusing the court of contorting the language of a statute to reach its desired conclusion. Justice Shirley Abrahamson joined the dissent.
RELATED: Can Madison ban guns from buses?
Madison’s bus operator, Metro Transit, has explicitly prohibited weapons on its buses since 2005 under a rule adopted by the city’s Transit and Parking Commission. Some gun owners challenged that rule in 2013, two years after passage of Act 35, which allowed concealed carry in Wisconsin and explicitly said it was OK for local governments to ban weapons in specified places. Buses were not among the listed locations.
After Metro Transit declined to change its rule, Wisconsin Carry Inc. and one of its members sued in 2014.
The plaintiffs argue that Wisconsin’s Act 35, the state’s concealed carry law, pre-empts any local government from imposing stricter regulations on when and where license holders may take their guns.
A circuit judge and the Court of Appeals agreed that the Act 35 pre-emption rule only applies to counties, cities, villages or towns adopting ordinances or resolutions more strict than the state’s gun law, and not to an ”agency rule” of the transit commission.
Kelly, however, said the court is “not merely arbiters of word choice,” and must apply the plain meaning of a statute. And since cities derive their authority from the state, the Act 35 prohibition prevents even an agency rule from restricting licensed gun owners from taking their weapons on Madison’s buses.
“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,” he wrote.
At the appeals court, that issue was seen differently. “It is not absurd or unreasonable to suppose that our Legislature drew a distinction between a municipality’s broad legislative powers and a municipal agency’s more limited powers,” Judge Paul Lundsten wrote for the District 4 panel.
After the Supreme Court agreed to hear the case, Attorney General Brad Schimel filed a friend-of-the-court brief, siding with the gun group. In the brief, Schimel and his Solicitor General Misha Tseytlin argue that the Madison ban fails because it conflicts with, defeats the purpose of and goes against the spirit of the state law.
The city argued that even if the ban were considered an ordinance, it would not be pre-empted because it is not more stringent than the state law. It cites the DOJ’s website of questions and answers about the conceal carry law, which states public and private entities can restrict the possession and transportation of weapons, as part of the updated vehicle portion of the law. Madison argued that since it owns the buses, it can choose to keep guns off them.
Further, it suggested it would be absurd to allow Madison to ban its own drivers from having guns on the government-owned buses — clearly allowed under the law — but prohibit it from restricting passengers from bringing guns on board.
The majority rejected those arguments, as well.
In dissent, Bradley said the case is not about the policy wisdom of allowing guns on city buses, or the complexities of constitutional law and the second amendment, only simple statutory interpretation. She said judicial restraint would find the Legislature’s intent in the language it chose — like the circuit and appeals courts did.
The majority, according to Bradley, shifted into “legislative mode” and “rewrites the statute in a manner it wishes the
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