By Ed Treleven
A state appeals court on Thursday agreed with a Dane County judge who ruled last year that a Madison city policy banning guns on city buses does not violate Wisconsin's concealed carry law.
Wisconsin Carry, a gun rights group, contended that state law preempted the policy. But the state 4th District Court of Appeals said that, as written, state law doesn't bar the rule, which prohibits guns on Metro Transit buses.
"Applying the language of (the state statute) as written, we agree with the circuit court and the city that the statute plainly preempts only 'ordinances' and 'resolutions,'" Judge Paul Lundsten wrote for the three-judge panel. "And, we agree, it is clear that the bus rule is not an 'ordinance' or 'resolution' under case law providing generally accepted meanings for those terms."
Wisconsin Carry lawyer John Moore said the group has not decided whether it will appeal the decision to the state Supreme Court.
Wisconsin Carry claimed that the Metro Transit policy violates the 2011 law allowing licensed persons to carry concealed weapons. The court said that while Wisconsin Carry asserted that the law preempts the Metro rule, the group did not argue that a rule adopted by a city agency, such as the city of Madison's Parking and Transit Commission, fits the meaning of either "ordinance" or "resolution."
"To the contrary," Lundsten wrote, "Wisconsin Carry concedes at the outset of its briefing that the bus rule is not, in the words of Wisconsin Carry, 'an enacted ordinance or an adopted resolution.' This is a significant concession."
Lundsten wrote that Wisconsin Carry essentially argued that the state Legislature did not mean what it said in writing the statute, asking instead that the court surmise that the Legislature "intended to achieve a more general preemption of locally generated firearms regulation."
But the court must assume that the Legislature's intent is expressed in the language that it used, Lundsten wrote, not unwritten intent. Had the Legislature intended to prohibit local agencies from regulating firearms, it would have said so, he wrote.
While Wisconsin Carry argued that it was absurd to conclude that the Legislature would have let municipal agencies do what municipalities themselves could not, the court said that the Legislature could have easily written the law differently had it chosen to do so.
"As the city notes, no municipal agency has the power to regulate firearms as broadly as a municipality," Lundsten wrote. "That is, agency actions are limited in scope to areas of agency responsibility. Thus, it may be that the legislature did not impose a more sweeping prohibition precisely because the legislature intended to leave the door open to more limited regulation of firearms, such as the bus rule here."
(c)2015 The Wisconsin State Journal (Madison, Wis.)