Wisconsin Carry, Inc. v. City of Madison

2017 WI 19
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP146
COMPLETE TITLE: Wisconsin Carry, Inc. and Thomas Waltz,
Petitioners-Appellants-Petitioners,
v.
City of Madison,
Respondent-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
2015 WI App 74
Reported at: 365 Wis. 2d 71, 870 N.W.2d 675
OPINION FILED: March 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Ellen K. Berz
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. joined by Abrahamson, J.
dissent (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
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.
2017 WI 19
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP146
(L.C. No. 2014CV61)
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Carry, Inc. and Thomas Waltz,
Petitioners-Appellants-Petitioner,
FILED
v. MAR 7, 2017
City of Madison, Diane M. Fremgen
Clerk of Supreme Court
Respondent-Respondent-Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
the cause remanded to the circuit court for further proceedings
consistent with this opinion.
¶1 DANIEL KELLY, J. 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
1
This is a review of a published decision of the court of
appeals, Wisconsin Carry, Inc. v. City of Madison, 2015 WI App
74, 365 Wis. 2d 71, 870 N.W.2d 675, affirming the circuit
court's dismissal of a complaint seeking declaratory relief
against Respondent.
No. 2015AP146
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 on-
board buses including: weapons (pistols,
rifles, knives or swords) . . . .3
2
Although the Rule's terms provide the impetus for this
case, neither party ever identified the operative language we
are supposed to be considering. Nor does the Rule appear
anywhere in the record. Inasmuch as the City does not deny
enforcing a policy against carrying weapons on city buses, we
take notice of the Rule as found on the City's website
(http://www.cityofmadison.com/metro/documents/
RulesofConduct.pdf) and include relevant portions as Appendix A.
The same prohibition appears in the City's "Ride Guide"
(relevant portions of which we reproduce as Appendix B) and we
take notice of it as well. We may take notice of this material
pursuant to Wis. Stat. § 902.01(2)(b) & (3) (2013–14).
3
Rule at 4; Appendix A at 2. The Ride Guide is similar:
"For the safety and comfort of all riders: . . . No weapons
allowed of any kind." Ride Guide at 6; Appendix B at 2.
2
No. 2015AP146
¶3 Petitioners, Wisconsin Carry, Inc. and Thomas Waltz
("Wisconsin Carry"), contacted Metro Transit4 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
4
"Metro Transit" is a sub-unit of the City of Madison.
See infra part III.B.1.b.
5
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
6
This statute defines "political subdivision" as "a city,
village, town or county." Wis. Stat. § 66.0409(1)(b).
3
No. 2015AP146
complaint7 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
7
Petitioners styled their pleading as a "petition"; except
in circumstances not present here, however, our rules identify
the initial pleading as a "complaint." See Wis. Stat.
§ 802.01(1). For the sake of uniformity across our opinions, we
will refer to the petitioners' initial pleading as a
"complaint."
4
No. 2015AP146
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 court8
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
8
The Honorable Ellen K. Berz presiding.
5
No. 2015AP146
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
9
Wisconsin Carry, in its complaint, said it instituted this
action to "determine the legality of the policies and practices
of [the City] from prohibiting possession of weapons by persons
riding Madison Metro buses . . . ." Wisconsin Carry also says
that it "[has] an interest in [its] rights to carry firearms on
Madison Metro buses," and that "[The City's] policies and
practices prohibit persons from riding Madison Metro buses while
armed . . . ."
10
We address the constitutional provisions regarding the
right to keep and bear arms to provide background and context
for our application of the statutes and ordinances Wisconsin
Carry puts at issue.
6
No. 2015AP146
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
11
See District of Columbia v. Heller, 554 U.S. 570, 593–94
(2008) ("By the time of the founding, the right to have arms had
become fundamental for English subjects. See [J. Malcolm, To
Keep and Bear Arms 122–134 (1994)]. Blackstone, whose works, we
have said, 'constituted the preeminent authority on English law
for the founding generation,' Alden v. Maine, 527 U.S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one of
the fundamental rights of Englishmen. See [1 William
Blackstone, Commentaries on the Laws of England 136, 139–140
(1765)]."); State v. Cole, 2003 WI 112, ¶20, 264 Wis. 2d 520,
605 N.W.2d 328 (Wilcox, J.) (plurality opinion) ("We find that
the state constitutional right to bear arms is fundamental.").
Notwithstanding Heller's careful demonstration that this
right has been fundamental since before our Nation's founding,
(continued)
7
No. 2015AP146
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
the dissent says it is something less. But it does not say when
or how it was demoted.
8
No. 2015AP146
carry a concealed weapon12 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
12
A "weapon" is "a handgun, an electric weapon, as defined
in s. 941.295(1c)(a), or a billy club." Wis. Stat.
§ 175.60(1)(j).
9
No. 2015AP146
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
10
No. 2015AP146
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.
13
The City made this argument explicitly before the Circuit
Court. Here, it is an implicit part of its argument that the
Local Regulation Statute does not apply because it addresses
only ordinances and resolutions (which are the legislative
devices of political subdivisions).
14
We express no opinion on the City's authority to regulate
the possession of weapons on its buses prior to enactment of the
Local Regulation Statute, the Concealed-Carry Statute, and the
current version of the Vehicle Statute.
11
No. 2015AP146
¶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
12
No. 2015AP146
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
15
The dissent faults us for emphasizing that the "plain
meaning" doctrine focuses on the statute's meaning. We think
discovering the meaning of a statute is not just a worthy
endeavor, but also an exhaustive recitation of the judiciary's
authority when interpreting a statute. We find the statute's
meaning in its words, context, and interaction with closely-
related statutes, just as Kalal describes.
13
No. 2015AP146
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
14
No. 2015AP146
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:
16
This proposition follows by necessary implication from
the fact that municipalities have no authority but what they are
given. Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56,
¶17, 235 Wis. 2d 409, 611 N.W.2d 693 (citing First Wis. Nat'l
Bank of Milwaukee v. Town of Catawba, 183 Wis. 220, 224, 197
N.W. 1013 (1924) ("Municipal bodies have only such powers as are
expressly conferred upon them by the legislature or are
necessarily implied from the powers conferred.")).
15
No. 2015AP146
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
16
No. 2015AP146
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.
17
This generality comports well with the dictionary
definition of "ordinance": "An authoritative law or decree;
specif., a municipal regulation, esp. one that forbids or
restricts an activity." Ordinance, Black's Law Dictionary (10th
ed. 2014). It also compares favorably with Doe v. Medford Sch.
Dist. 549C, 221 P.3d 787 (Or. App. 2009), a case the City cited
in its discussion about the nature of ordinances. There, the
court said:
The term "ordinance," as it is used in ordinary
communications, has both a narrow and a broader
meaning. [In its narrow meaning] [i]t can refer to "a
public enactment, rule, or law promulgated by
governmental authority: as . . . a local law or
regulation enacted by a city council or other similar
body under powers delegated to it by the state." . . .
The word "ordinance" also has a broader common
meaning, however. At least in some contexts, the term
may not be limited to enactments of law but, more
generally to an "established rule, policy, or
practice."
Id. at 793 (quoting Webster's Third New Int'l Dictionary
1588 (unabridged ed. 1993)).
17
No. 2015AP146
¶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
18
See supra n.16.
18
No. 2015AP146
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
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No. 2015AP146
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.
19
"[T]he governing body of a city shall . . . provide for
the nonpartisan management of a municipal public utility by
(continued)
20
No. 2015AP146
¶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.
creating a commission under this section." Wis. Stat.
§ 66.0805(1).
20
For example, the statute says a transit commission may
appoint certain employees, conduct hearings, hold regular
meetings, adopt a seal, etc. Wis. Stat. § 66.1021(6) & (7).
21
No. 2015AP146
§ 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
22
No. 2015AP146
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
21
Madison, Wis., Gen. Ordinances § 3.14(4)(a) ("There is
hereby created a Transit and Parking Commission charged with the
duties and responsibilities contained herein.").
23
No. 2015AP146
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
22
We may consider the statute's purpose while conducting a
"plain meaning" analysis, so long as we refer only to the
statute's text and structure. State ex rel. Kalal v. Cir. Ct.
for Dane Cty., 2004 WI 58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110
("[S]cope, context, and purpose are perfectly relevant to a
plain-meaning interpretation of an unambiguous statute as long
as the scope, context, and purpose are ascertainable from the
text and structure of the statute itself, rather than extrinsic
sources, such as legislative history.").
23
The dissent wishes we had consulted legislative history
on this question, and suggests we did not do so because it would
contradict our interpretation of the Local Regulation Statute.
We did not address legislative history for two reasons. First,
we had no difficulty finding the statute's meaning without it
(as Kalal contemplates). And second, the history the dissent
identified has no instructive merit. The two failed municipal
gun-control referenda mentioned in State v. Cole, 264
Wis. 2d 520, ¶¶62–63 (Prosser, J., concurring), and the
statements of one assemblyman, might be able to tell us what
motivated the legislature to enact the Local Regulation Statute.
But motivation and meaning are not necessarily the same thing.
Even if every legislator publicly announced the intent behind
the way he or she voted, that knowledge would give us no aid in
understanding the Local Regulation Statute. We find the
legislature's intent in the words it adopts, not the expressed
(or unexpressed) subjective reasons the 132 legislators had for
adopting those words. Kalal, 271 Wis. 2d 633, ¶52. Cherry-
picking the statements of one such legislator, as the dissent
does, just gives us 1/132 of a body of information that tells us
nothing about the meaning of the statute.
24
No. 2015AP146
¶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,
24
The Commission's members are appointed, not elected: "The
Transit and Parking Commission shall consist of nine (9) voting
members to serve without compensation consisting of three (3)
members of the Common Council, six (6) citizens and two (2)
alternates . . . at least one (1) of whom shall be a citizen."
Madison, Wis., Gen. Ordinances § 3.14(4)(b). "Citizen members of
the Transit and Parking Commission shall be appointed by the
Mayor subject to confirmation by the Common Council." Id.
§ 3.14(4)(d).
25
No. 2015AP146
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-
26
No. 2015AP146
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.
25
The City argued that this conclusion would "deprive the
people of Wisconsin [of] the right to democratically decide if
public buses are an appropriate place for loaded handguns."
Actually, it protects that very thing. The people of Wisconsin,
through their duly-elected legislators, have had their say on
this issue. Allowing an unelected body like the Commission to
overrule the people's decision would not protect their
democratically-expressed will, it would thwart it.
26
The relevant portion of the Idaho statute says:
(2) Except as expressly authorized by state statute,
no county, city, agency, board or any other political
subdivision of this state may adopt or enforce any
law, rule, regulation, or ordinance which regulates in
any manner the sale, acquisition, transfer, ownership,
possession, transportation, carrying or storage of
firearms or any element relating to firearms and
components thereof, including ammunition.
Idaho Code Ann. § 18-3302J(2) (2016).
27
No. 2015AP146
§ 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
27
The relevant portion of the Florida Statute says:
(1) Preemption.--Except as expressly provided by the
State Constitution or general law, the Legislature
hereby declares that it is occupying the whole field
of regulation of firearms and ammunition, including
the purchase, sale, transfer, taxation, manufacture,
ownership, possession, storage, and transportation
thereof, to the exclusion of all existing and future
county, city, town, or municipal ordinances or any
administrative regulations or rules adopted by local
or state government relating thereto. Any such
existing ordinances, rules, or regulations are hereby
declared null and void.
Fla. Stat. Ann. § 790.33(1) (West 2007 & Supp. 2016).
28
The relevant portion of the Kansas statute says:
(a) No city or county shall adopt or enforce any
ordinance, resolution or regulation, and no agent of
any city or county shall take any administrative
action, governing the requirement of fees, licenses or
permits for, the commerce in or the sale, purchase,
transfer, ownership, storage, carrying, transporting
or taxation of firearms or ammunition, or any
component or combination thereof.
Kan. Stat. Ann. § 12-16,124(a) (Supp. 2015).
28
No. 2015AP146
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
29
As an alternative to listing a multitude of labels for
prohibited legislation, some states instead use a catch-all
phrase to describe the method by which the legislative act is
adopted. Arkansas, for example, states that local governments
"shall not enact any ordinance or regulation pertaining to, or
regulate in any other manner" the identified subjects. Ark.
Code. Ann. § 14-16-504(b)(1)(A) (2013) (emphasis added). Kansas,
on the other hand, forbids local "administrative action" related
to firearms. Kan. Stat. Ann. § 12-16,124 (Supp. 2015). But
this does not end the lexical chase, it just shifts it to the
label given to the municipal action that produces the
legislation.
29
No. 2015AP146
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
30
Under the guise of "judicial restraint," however, this is
how the dissent would have us understand the Local Regulation
Statute. Its two-sentence statutory analysis comprises, in its
entirety, this: "The bus rule is neither an 'ordinance' nor a
'resolution,' and it was not enacted by the city. That should be
the end of the analysis." Dissent at ¶73. But "judicial
restraint" does not mean superficial or incomplete. The dissent
is curiously incurious about whether municipalities have
legislative authority outside of "ordinances" and "resolutions."
Instead, without analysis, it simply assumes they do, and
further assumes the Commission's authority to adopt the Rule
flows from that phantom authority. While that analysis is
certainly original, it has nothing to do with judicial
restraint.
31
Kalal, 271 Wis. 2d 633, ¶46 ("[S]tatutory language is
interpreted . . . reasonably, to avoid absurd or unreasonable
results.").
32
Wis. Stat. § 66.0409(2).
30
No. 2015AP146
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.
33
The Local Regulation Statute authorizes local legislation
so long as it is both the "same as or similar to" and "no more
stringent than" a state statute. Because the stringency
analysis resolves this matter, we need not inquire into whether
the Rule or Ordinance is the same as or similar to a state
statute.
31
No. 2015AP146
¶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
32
No. 2015AP146
proposition to its conclusion, and we will not further explore
this argument when the City has chosen to remain silent.34
¶51 The City also says it can harmonize the two provisions
because the Vehicle Statute does not say a person must carry a
firearm on a bus. It is true the Vehicle Statute is prohibitory
(as the City pointed out), and it is also true that an exception
from a prohibition is not the same thing as a mandate. This
means that although the Vehicle Statute does not prohibit a
person from carrying a firearm in a vehicle (except as described
above), it also does not require a person to carry such a weapon
in a vehicle. But this can give the City no succor. The City
bans the carrying of all firearms on its buses. So its burden
is not to find a statute that neither bans nor requires carrying
firearms, its burden is to identify a statute that does ban, and
does so at least as restrictively as the Rule. As relevant
here, the Vehicle Statute prohibits only the carrying of loaded
non-handguns in a vehicle. Consequently, the Vehicle Statute
justifies the Rule only in that regard. By also banning the
34
As an entirely practical matter, an individual can carry
a weapon in only one vehicle at a time, so there is no need to
use "any" or "all" in the statute. "Any" bus in the City's
fleet becomes "a" bus within the meaning of this statute the
instant an individual boards it with a permissible firearm. The
same is true of "all" city buses. So there is no point in
distinguishing between "a" bus, on the one hand, and on the
other "any" or "all" buses.
33
No. 2015AP146
carrying of knives, handguns (whether loaded or not), and
unloaded non-handguns, the Rule is dramatically more restrictive
than the Vehicle Statute.
¶52 The City also says the Rule is no more restrictive
than Wisconsin's Statutes because, as owner of its buses, it has
the same authority to ban the carrying of weapons as individuals
have in banning weapons from their private vehicles. There are
two reasons this cannot justify the Rule. The first, and most
obvious, is that an individual's right to ban weapons from his
vehicle is not statutory, and so cannot serve as the point of
comparison. He may keep weapons from his vehicle because he has
the right to exclude others from his property. He needs no
statutory grant, and he has received none; his authority is
incident to his property right in the vehicle. He can keep
weapons out of his car because he can deny a person entry for
any reason he may choose.35 So if he does not want weapons in
35
"Property rights in a physical thing have been described
as the rights to possess, use and dispose of it . . . . The
power to exclude has traditionally been considered one of the
most treasured strands in an owner's bundle of property rights."
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435
(1982) (citation and internal quotation marks omitted); Rakas v.
Illinois, 439 U.S. 128, 143 (1978) ("One of the main rights
attaching to property is the right to exclude others . . . ."
(citing W. Blackstone, Commentaries, Book 2, ch. 1")); Jacque v.
Steenberg Homes, Inc., 209 Wis. 2d 605, 618, 563 N.W.2d 154
(1997) ("[T]he private landowner's right to exclude others from
his or her land is 'one of the most essential sticks in the
(continued)
34
No. 2015AP146
his vehicle, he may simply deny the person carriage unless he
first divests himself of his weapons. Thus, there is no sense
in which the Rule can be described as "the same as or similar
to, and no more stringent than, a state statute."36
¶53 Second, the City's ownership rights in its buses are
not the same as an individual's ownership rights in his private
vehicle. It is possible the City means its argument to assert
that the Local Regulation Statute's reference to "a state
statute" as the point of comparison is meant to be longhand for
"law," thereby giving us leave to compare the Rule's stringency
against non-statutory sources of law. If that is what the
reference means——and we do not believe it is——the City would
still be unable to justify the Rule. The City's argument is
dependent on demonstrating that its authority to exclude
passengers from its buses is coextensive with an individual's
authority to deny carriage to another. For the following
reasons, it is not.
¶54 Governments, whether great or small, exercise only
that amount of authority they rightfully receive from those they
bundle of rights that are commonly characterized as property.'"
(quoting Dolan v. City of Tigard, 512 U.S. 374, 384 (1994))).
36
Wis. Stat. § 66.0409(2) (emphasis added).
35
No. 2015AP146
represent.37 And they must use that authority only in ways that
are appropriate to achieve the ends for which they were granted
the authority.38
¶55 With respect to property entrusted to its care, the
City notes that "[t]he State, no less than a private owner of
37
"[T]he people of the several States are the only
true source of power . . . . All powers that the Constitution
neither delegates to the Federal Government nor prohibits to the
States are controlled by the people of each State." U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 847-48 (1995); see also
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943)
("There is no mysticism in the American concept of the State or
of the nature or origin of its authority. We set up government
by consent of the governed, and the Bill of Rights denies those
in power any legal opportunity to coerce that consent.
Authority here is to be controlled by public opinion, not public
opinion by authority."); Halter v. Nebraska, 205 U.S. 34, 43
(1907) ("It is not extravagant to say that to all lovers of the
country [the American flag] signifies government resting on the
consent of the governed . . . ."); Texas v. White, 74 U.S. (7
Wall.) 700 (1868) ("A State, in the ordinary sense of the
Constitution, is a political community of free citizens,
occupying a territory of defined boundaries, and organized under
a government sanctioned and limited by a written constitution,
and established by the consent of the governed."); Goodall v.
City of Milwaukee, 5 Wis. 32, 38 (1856) ("In England, the
Parliament is said to be supreme, omnipotent, and to its
mandates the highest, as well as the lowest, in all their rights
and acquisitions must yield. Not so here; all departments of
government derive their powers from the prescribed consent of
the people who are governed".
38
"Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are
constitutional." M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316,
421, (1819). Johnston v. City of Sheboygan, 30 Wis. 2d 179,
186, 140 N.W.2d 247 (1966) (quoting M'Culloch).
36
No. 2015AP146
property, has power to preserve the property under its control
for the use to which it is lawfully dedicated." Adderley v.
Florida, 385 U.S. 39, 47 (1966). The City lawfully dedicated
its buses to providing "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 safe and
efficient transportation." Madison, Wis., Gen. Ordinances
§ 3.14(4)(g). Thus, the City says, Adderley gives it authority
to exercise over its buses the rights typical of private
ownership in pursuit of those enumerated purposes. So we must
determine whether Adderley allows the City to pursue these
purposes by banning weapons on the same basis that a private
individual bans weapons from his private vehicle. We conclude
it does not.
¶56 An individual may ban weapons because he has unlimited
discretion to bar anyone and everyone from his vehicle for any
reason, or even no reason at all. The City enjoys no such
latitude with respect to bus passengers. Indeed, the City's
ability to exclude passengers is subject to significant
circumscription. The most significant is that, whatever property
rights it might have, it may not use them in derogation of the
law: "[A] municipality cannot lawfully forbid what the
37
No. 2015AP146
legislature has expressly licensed, authorized or required, or
authorize what the legislature has expressly forbidden." Fox v.
City of Racine, 225 Wis. 542, 545, 275 N.W. 513 (1937).
¶57 Adderley is entirely incapable of pushing that
principle aside. Adderley is a First Amendment case (as are the
other cases the City cited in support of its "ownership"
argument), in which the Court analogized public ownership of
property to private ownership as an aid in determining whether
the property in question constituted a public forum for speech
purposes. This case, of course, has nothing to do with the
First Amendment. Thus, the City's argument on this point
consists entirely of an analogy to free speech cases, the
foremost of which (Adderley) tangentially employed an analogy
between public and private ownership as part of a much broader
constitutional analysis.39 Analogies are sometimes helpful in
contextualizing an issue, but an analogy on top of an analogy
rarely conveys useful information. Such is the case here.
39
The other First Amendment cases the City cited rely, at
least in part, on Adderley. See U.S. Postal Serv. v. Council of
Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (1981) (citing
Adderley in the process of analyzing First Amendment challenge
to Postal Service's right to restrict access to mailboxes);
Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974)
(citing Adderley in the process of analyzing First Amendment
challenge to City's right to deny advertising request on public
buses).
38
No. 2015AP146
¶58 Adderley can teach us nothing about the question at
hand because the City's recursive analogies left no room for the
Local Regulation Statute. To conclude that the City's property
rights allow it to exclude law-abiding members of the public
from its buses, we would first have to conclude that those
property rights enjoy a permanence so profound that they are
immune from statutory alteration. Those analogized rights,
however, are not untouchable. The scope and nature of property
rights are defined by our laws.40 If the law modifies a property
right, therefore, one may not assert the previous version of the
property right to trump the very law that changed the right.
The Local Regulation Statute (as discussed above) forbids the
City from forbidding weapons on its buses when otherwise carried
in conformance with the law. Thus, to the extent the City
previously had a property-based right to exclude riders in
possession of weapons, that right ceased with the advent of the
Local Regulation Statute. To claim a property right to exclude
40
"Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law——rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits." Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972); see also, Penterman v. Wis. Elec. Power
Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (quoting Roth's
proposition, supra, that property interests are created and
defined by independent sources such as state law).
39
No. 2015AP146
weapons-carrying passengers from its buses is to invoke a right
that no longer exists (if it ever did).
¶59 From all of this we may deduce that the City's
ownership interest in its buses does not allow it to arbitrarily
exclude potential passengers a la private vehicle owners.
Instead, any decision to exclude must be tied to a lawful basis.
With respect to a prospective passenger who is complying with
the Vehicle Statute, state law offers no such basis. And the
Local Regulation Statute says the City (and its sub-units) may
not create such a basis. Because the City cannot exclude
passengers from its buses without a lawful basis, and none
exists with respect to passengers who comply with state weapons
laws, the City's ownership interest in its buses gives it no
authority to promulgate or enforce the Rule.
3. The Concealed-Carry Statute
¶60 Thus far we have considered only the Local Regulation
Statute's impact on the Rule's proscription of "knives" and
"firearms" on the City's buses. We addressed only those weapons
in that analysis because those are the types of weapons included
in the statute's mandate. But there are other types of weapons,
and other statutes that speak to their regulation. Amongst
these is the Concealed-Carry Statute, which covers not just
40
No. 2015AP146
handguns but electric weapons and billy clubs as well.41 So we
now determine whether the Rule may lawfully prohibit the
carrying of these types of concealed weapons.42
¶61 In relevant part, the Concealed-Carry Statute says a
"licensee or an out-of-state licensee may carry a concealed
weapon 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)(a). The exceptions need not detain us,
because none address buses. So, because we have already
concluded that the City cannot regulate firearms more
stringently than state statutes, all we must do here is decide
whether city buses are mobile negations of "anywhere in this
state."
¶62 The City's argument did not engage the language of the
Concealed-Carry Statute other than to assert that the word
"anywhere" cannot really mean anywhere. There are, of course,
two limitations on this right to carry concealed weapons in
Wisconsin. We find the first in the statute itself, which
contains a list of situations and places to which the statute's
41
"'Weapon' means a handgun, an electric weapon, as defined
in s. 941.295(1c)(a), or a billy club." Wis. Stat.
§ 175.60(1)(j).
42
The City's authority to ban handguns has been withdrawn
by the Local Regulation Statute, as described above.
41
No. 2015AP146
mandate does not apply.43 The second lies in the principle that
the legislature is aware of the state's existing laws, and that
43
The exceptions cover only the following:
 Certain restrictions imposed by employers on their
employees (Wis. Stat. § 175.60(15m);
 Certain types of buildings, consisting of (Wis. Stat.
§ 175.60(16)):
1. Any portion of a building that is a police
station, sheriff's office, state patrol station, or
the office of a division of criminal investigation
special agent of the department;
2. Any portion of a building that is a prison, jail,
house of correction, or secured correctional facility;
3. The facility established under § 46.055 [secure
mental health facility for sexually violent persons];
4. The center established under § 46.056 [the
Wisconsin Resource Center located on the grounds of
the Winnebago Mental Health Institute];
5. Any secured unit or secured portion of a mental
health institute under § 51.05, including a facility
designated as the Maximum Security Facility at Mendota
Mental Health Institute;
6. Any portion of a building that is a county,
state, or federal courthouse;
7. Any portion of a building that is a municipal
courtroom if court is in session;
8. A place beyond a security checkpoint in an
airport;
 Restrictions imposed by authorized persons on lands,
residences, commercial buildings, special event locations,
buildings that are owned, occupied, or controlled by state or
local governmental units, and university or college grounds or
buildings (Wis. Stat. § 943.13(1m)(c)); and
 School grounds (Wis. Stat. § 948.605(2)(b)1r).
42
No. 2015AP146
it adopts new legislation against that backdrop, leaving the
present law undisturbed except so far as necessary to make room
for the new.44 As significant here, the Concealed-Carry Statute
contains no text suggesting that "anywhere" includes a place the
licensee has no permission or right to be. That is to say, a
concealed-carry license is not a writ authorizing the licensee
to force his way into a place he may not lawfully occupy. Thus,
when the Concealed-Carry Statute speaks of "anywhere," it refers
to anywhere the licensee may lawfully be, exclusive only of the
exceptions contained in the statute itself.
¶63 Whether the Rule's prohibition of concealed weapons
survives enactment of the Concealed-Carry Statute depends on
whether the latter has preempted the former. We begin our
analysis by recognizing that cities enjoy both constitutional
and statutory grants of authority. The Wisconsin Constitution
provides that "[c]ities and villages organized pursuant to state
law may determine their local affairs and government, subject
only to this constitution and to such enactments of the
44
Town of Madison v. City of Madison, 269 Wis. 609, 614, 70
N.W.2d 249 (1955) ("All statutes are presumed to be enacted by
the legislature with full knowledge of the existing condition of
the law and with reference to it, . . . they are therefore to be
construed in connection with and in harmony with the existing
law, and as a part of a general and uniform system of
jurisprudence, that is, they are to be construed with a
reference to the whole system of law of which they form a
part.").
43
No. 2015AP146
legislature of statewide concern as with uniformity shall affect
every city or every village." Wis. Const. art. XI, § 3. Our
legislature describes a city's authority broadly:
Except as elsewhere in the statutes specifically
provided, the council shall have the management and
control of the city property, finances, highways,
navigable waters, and the public service, and shall
have power to act for the government and good order of
the city, for its commercial benefit, and for the
health, safety, and welfare of the public, and may
carry out its powers by license, regulation,
suppression, borrowing of money, tax levy,
appropriation, fine, imprisonment, confiscation, and
other necessary or convenient means. The powers
hereby conferred shall be in addition to all other
grants, and shall be limited only by express language.
Wis. Stat. § 62.11(5).
¶64 Consequently, just because a municipal legislative act
treats a subject also addressed by the legislature does not mean
the former has been preempted: "[M]unicipalities may enact
ordinances in the same field and on the same subject covered by
state legislation where such ordinances do not conflict
with . . . the state legislation." City of Milwaukee v. Childs
Co., 195 Wis. 148, 151, 217 N.W. 703 (1928). We have developed
a disjunctive list of considerations that assists us in
determining whether a local legislative act must defer to state
legislation:
The tests for determining whether such a legislatively
intended withdrawal of power which would necessarily
nullify the local ordinance has occurred are:
44
No. 2015AP146
(1) whether the legislature has expressly
withdrawn the power of municipalities to act;
(2) whether the ordinance logically conflicts
with the state legislation;
(3) whether the ordinance defeats the purpose of
the state legislation; or
(4) whether the ordinance goes against the spirit
of the state legislation.
Anchor Sav. & Loan Ass'n v. Equal Opportunities Comm'n, 120
Wis. 2d 391, 397, 355 N.W.2d 234 (1984). The Concealed-Carry
Statute does not mention local regulation at all, so it does not
represent an express withdrawal of a municipality's power to
regulate concealed weapons within the meaning of the first
Anchor test. The parties have not expounded on the "spirit" of
the Concealed-Carry Statute, so there is insufficient
information available to us to make the fourth Anchor test
instructive. We will, therefore, concentrate on the second and
third tests.
¶65 The second test inquires into whether the Rule (as an
expression of the legislative authority contained in the
Ordinance) logically conflicts with the Concealed-Carry Statute.
That statute creates a singularly expansive right to carry
concealed weapons. It extends to "anywhere in this state"
except as described above. It is difficult to imagine a more
comprehensive description of where the right may be exercised
45
No. 2015AP146
than "anywhere." But the legislature did not have to create the
right in this manner. If its paramount concern was not
comprehensiveness, it could have instead provided a list of
places in which the right to carry a concealed weapon could be
exercised. This would almost necessarily have led to a
patchwork "carry" landscape in which one would need a
constantly-updated, GPS-enabled smartphone app to determine from
instant to instant whether one was complying with the Concealed-
Carry Statute.
¶66 The logic inherent in the legislature's decision to
define the right as all-encompassing, subject only to carefully
delimited exceptions, is that the right is meant to extend as
far as is not inconsistent with its internally-defined
limitations. There is no room in the Concealed-Carry Statute
for a municipality to define "anywhere" as something other than
the comprehensive expanse it was meant to be. If there were
such room, Wisconsin's municipalities could instantly create the
patchwork landscape the text of the Concealed-Carry Statute
indicates the legislature meant to avoid.
¶67 This analysis also indicates the Rule fails the third
Anchor test. The Concealed-Carry Statute's evident purpose is
to allow the carrying of concealed weapons as broadly as
possible, subject only to limited exceptions identified by the
statute itself. This breadth, coupled with the assurance that
46
No. 2015AP146
only the legislature can add new restrictions, allows
individuals to move about the entire state with confidence they
are not violating the law. If it were otherwise, people
traveling the interstate with a concealed weapon might find
themselves compliant as they drive through a carry-philic town,
only to find themselves law-breakers a moment later as they pass
into an adjacent carry-phobic community. In practice, this
would mean (for example) that the municipality along the
Madison-Milwaukee corridor with the most restrictive weapon
regulation would effectively set the concealed-carry standard
for everyone traveling between the two cities. This would
certainly defeat the Concealed-Carry Statute's purpose in
creating a uniform standard for the entire state.45
¶68 In sum, the City may not enforce the Rule against
concealed-carry licensees who are in compliance with the
Concealed-Carry Statute.
45
There are, of course, certain and well-defined places one
may not carry a concealed weapon, e.g., jails, mental health
institutions, courthouses, etc. See Wis. Stat. § 175.60(16)(a).
The nature of these exceptions reinforces the uniformity
inherent in the Concealed-Carry Statute. The common thread
running through each is that they describe places where there
are obvious and elevated security concerns. This statute is
exactly what one would expect of a law aimed at maximizing
statewide uniformity while simultaneously controlling for
legitimate security concerns.
47
No. 2015AP146
IV. CONCLUSION
¶69 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. Finally, we hold that neither the City nor any of
its sub-units or employees may enforce the Rule to the extent it
purports to prohibit carrying any knife or firearm (as defined
by the Local Regulation Statute) or weapon (as defined by the
Concealed-Carry Statute), so long as such carrying is not
forbidden by (and is done in compliance with) the Vehicle
Statute, Wis. Stat. § 167.30, the Concealed-Carry Statute, and
all other statutes that may from time to time become applicable.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
48
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No. 2015AP146.awb
¶70 ANN WALSH BRADLEY, J. (dissenting). The public
policy and safety considerations involved in allowing weapons on
a city bus may be hotly debated, but those issues are not before
the court. Nor is the complexity of the constitutional right to
bear arms at issue here. This case presents a straightforward
question of statutory interpretation.
¶71 The issue here is whether Wis. Stat. § 66.0409
preempts a rule adopted by the City of Madison's Transit and
Parking Commission that prohibits a person from traveling on a
city bus with a weapon (the "bus rule").
¶72 Judicial restraint requires that courts "assume that
the legislature's intent is expressed in the statutory language"
chosen by the legislature. State ex rel. Kalal v. Cir. Ct. for
Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
And that is exactly what the circuit court and a unanimous court
of appeals did here.
¶73 Applying a plain meaning interpretation, both courts
determined that the bus rule is not preempted by state statute.
They concluded that the plain meaning of Wis. Stat. § 66.0409
(the "Preemption Statute") clearly limits preemption to
municipal "ordinances" and "resolutions" enacted or adopted by a
"city, village, town or county." See Wis. Stat. § 66.0409(1)(b)
& (2).1 Further they determined the bus rule is neither an
1
The majority opinion refers to this same statute as the
"Local Regulation Statute." Like the court of appeals, I use
the term "Preemption Statute."
1
No. 2015AP146.awb
"ordinance" nor a "resolution," and it was not enacted by the
city. That should be the end of the analysis.
¶74 A majority of this court, however, fails to exercise
the same restraint. Discarding seminal rules of statutory
interpretation, the majority slips into legislative mode, and
ignores the plain meaning of the words chosen by the
legislature. It rewrites the statute in a manner it wishes the
legislature had chosen, a manner chosen by several other states—
—but not Wisconsin.
¶75 The majority evinces a further lack of judicial
restraint when it reaches out to address constitutional issues
not raised or briefed by the parties.
¶76 Contrary to the majority, I agree with the circuit
court and the court of appeals that the legislature meant what
the words of the statute clearly provide. The rule adopted by
the City of Madison's Transit and Parking Commission that
prohibits a person from traveling on a city bus with a weapon is
not preempted by state statute.
¶77 Accordingly, I respectfully dissent.
I
¶78 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.
¶79 Cases that turn on statutory interpretation generally
begin the analysis by setting forth the text of the statute.
2
No. 2015AP146.awb
For example, in the first paragraph of its analysis, the
petitioner's brief sets forth the relevant statute in full.
Following suit, the City likewise presents front and center the
statute to be examined, setting it forth in full in the second
paragraph of the brief's analysis. But where is the Preemption
Statute set forth in full in the majority's analysis? Nowhere.
¶80 This omission underscores that the majority's
statutory interpretation is less about the text of the statute
and more about lengthy and intertwining legal arguments. The
absence obscures the ability to compare the plain text of the
statute with the majority's interpretation of it. Wisconsin's
Preemption Statute, Wis. Stat § 66.0409(2), provides:
[With exceptions not relevant here], no political
subdivision may enact or enforce an ordinance or adopt
a resolution that regulates the sale, purchase,
purchase delay, transfer, ownership, use, keeping,
possession, bearing, transportation, licensing,
permitting, registration or taxation of any knife or
any firearm or part of a firearm, including ammunition
and reloader components, unless the ordinance or
resolution is the same as or similar to, and no more
stringent than, a state statute.
Additionally, Wis. Stat. § 66.0409(1)(b) defines "political
subdivision" as "a city, village, town or county."
¶81 It is noteworthy that when the majority does reach the
issue actually before this court, it claims to be engaging in a
plain meaning interpretation. Yet, its plain meaning
interpretation does not come close to tracking the words of the
statute it is examining.
¶82 The majority determines that "the plain meaning of the
[Preemption] Statute is that the legislature withdrew from the
3
No. 2015AP146.awb
City's governing body all authority to legislate on
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.'"
Majority op., ¶28 (citation omitted).
¶83 In reaching this "plain meaning" interpretation of the
statute the majority discards seminal rules of statutory
interpretation, slips into legislative mode, and re-writes the
statute the way it wishes the legislature would have written it.
I address each in turn.
A
¶84 Although it pays lip service to seminal rules of
statutory interpretation set forth in Kalal, 271 Wis. 2d 633,
one wonders what is left of those rules after reviewing the
majority's truncated exposition of a plain meaning
interpretation.
¶85 When Kalal was decided, essentially two approaches to
statutory interpretation had evolved. One approach was more
holistic and inquired what was meant by the statute. Another
focused on the words of the statute chosen by the legislature
and instructed that the words be given their plain meaning. The
majority in Kalal adopted the latter textual approach.
¶86 Curiously, the majority in this case appears to
backtrack from the majority's approach in Kalal. Rather than
inquire what the text does provide, the majority here asks what
does the statute mean. It even supplies emphasis in the
original, underlying "meaning" as an apparent shorthand signal
4
No. 2015AP146.awb
of a reinvigorated holistic approach. Majority op., ¶20. After
explaining that to be bound by the words of the statute chosen
by the legislature would render it a mechanical and mere
"arbiter[] of word choice," the majority emphasizes "[i]t is,
instead, the 'plain meaning' of a statute we must apply." Id.,
¶¶19-20.
¶87 In the majority's search for meaning, it discards
seminal rules of statutory interpretation that emphasize the
primacy of the words chosen by the legislature. Brushed aside
are rules that require an interpretation using the statutory
common and ordinary meaning of those chosen words as well as an
examination of those words in the statutory context in which
they are used. The majority's departure from these seminal
rules includes those set forth below.
¶88 First, "Judicial deference to the policy choices
enacted into law by the legislature requires that statutory
interpretation focus primarily on the language of the statute."
Kalal, 271 Wis. 2d 633, ¶44. As noted above, the majority
asserts that it is not the words of the statute that are
significant, but the "plain meaning" of a statute that must be
applied. Majority op., ¶20.
 "We must, however, keep in mind that this axiom [to apply
the plain meaning of the statute] 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." Majority op., ¶19.
 "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
5
No. 2015AP146.awb
that 'commission' is etymologically distinct from 'city,'
'village,' 'town,' and 'county.'" Id., ¶19.
¶89 Second, "statutory interpretation begins with the
language of the statute." Kalal, 271 Wis. 2d 633, ¶45 (internal
quotations and citations omitted). The majority opinion does
not set forth the full text of the statute anywhere in its
statutory analysis, which obscures a comparison to the text of
the statute with the majority's "plain meaning" interpretation
of it. Rather than beginning its analysis with the language of
the statute, it begins with a discussion of the Second
Amendment. Majority op., ¶¶8-12.
¶90 Third, "[s]tatutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Kalal, 271 Wis. 2d 633, ¶45.
Although the majority accurately quotes Cross v. Soderbeck, 94
Wis. 2d 331, 342, 288 N.W.2d 779 (1980), which defines the
common and ordinary meaning of both "ordinance" and
"resolution," it declines to apply the common and ordinary
meaning to those terms.2 Majority op., ¶¶24-28.
2
Cross v. Soderbeck, 94 Wis. 2d 331, 342, 288 N.W.2d 449
(1980) (citations omitted) provides:
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 the
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
(continued)
6
No. 2015AP146.awb
¶91 Instead, the majority superimposes on Kalal a new
approach. It creates alternative interpretive principles,
including examining the ordinance's "taxonomy functionally."
Majority op., ¶25. Ultimately, it arrives at a plain meaning
interpretation based on these principles.
 The majority "derive[s] three principles useful to
our inquiry": (1) "ordinances are municipal
legislative devices, formally enacted, that address
general subjects in a permanent fashion"; (2)
"resolutions are those informal municipal
legislative acts that address particular pieces of
administrative business in a temporary fashion"; and
(3) "the label given to a legislative device is not
dispositive——one identifies the device's taxonomy
functionally." Majority op., ¶25.
 "Thus, the plain meaning of the [Preemption] Statute
is that the legislature withdrew from the City's
governing body all authority to legislate on the
subjects it identifies . . ." Id., ¶28.
¶92 Fourth, "statutory language 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; and reasonably, to avoid absurd or
unreasonable results." Kalal, 271 Wis. 2d 633, ¶46. The
majority does not analyze the statutory context or language of
closely-related statutes. Instead, it analyzes the result and
reasons that the result is not what the legislature intended.
 "We examine the statute's contextualized words, put
them into operation, and observe the results to
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.
7
No. 2015AP146.awb
ensure we do not arrive at an unreasonable or absurd
conclusion." Majority op., ¶20.
¶93 The process that the majority employs in its plain
meaning interpretation is one that is almost entirely
disconnected from the actual language of the statute.
Ultimately, it is apparent that in abandoning or reconfiguring
seminal rules of statutory interpretation, the majority fails to
honor the words chosen by the legislature.
B
¶94 Instead the majority dons its collective legislative
hat and rewrites the Preemption Statute in a manner chosen by
several other states——but not Wisconsin. The Wisconsin
legislature could have, but did not, use expansive language
intended to more broadly prohibit local agency regulation of
firearms. In re Incorporation of Portion of Town of Sheboygan,
2001 WI App 279, ¶9, 248 Wis. 2d 904, 637 N.W.2d 770 ("It is
presumed that the legislature is cognizant of what language to
include or omit when it enacts laws.").
¶95 Other jurisdictions provide examples of how the
Wisconsin legislature could have more broadly written its
preemption statute. For example, in Kansas, the preemption
statute prohibits the adoption of ordinances and resolutions,
but also says that "no agent of any city or county shall take
any administrative action" to regulate firearms. Kan. Stat.
Ann. § 12-16,124(a) (2013).
¶96 A multitude of other states have done exactly what the
Wisconsin legislature did not do, but what the majority wishes
this legislature had done. See Va. Code Ann. § 15.2-915A (2012)
8
No. 2015AP146.awb
(no agent of any locality "shall take any administrative
action . . . "); Tenn. Code Ann. § 39-17-1314(a) (2014) (no city
"shall occupy any part of the field of regulation . . . ");
Mich. Comp. Laws § 123.1102 (2015) (no city shall
"enact . . . any ordinance . . . or regulate in any other
manner"); Ark. Code Ann. § 14-16-504(b)(1)(A) (2011) (local
governments "shall not enact any ordinance or regulation
pertaining to, or regulate in any other manner . . . "); Fla.
Stat. § 790.33(1) (2011) (preempting "any administrative
regulations or rules"); Idaho Code § 18-3302J(2) (2014) ("no []
city, agency, board or any other political subdivision . . . may
adopt or enforce any law, rule, regulation, or ordinance, which
regulates in any manner . . . "); Ky. Rev. Stat. Ann.
§ 65.870(1) (West 2012) (prohibiting a ban by "any person acting
under the authority of any . . . organization[] . . . ").
¶97 The majority ultimately justifies its creative
approach to statutory interpretation by emphasizing a desire to
avoid an absurd result. Majority op., ¶46 n.31. However, it
appears that the majority may be confusing a desire to avoid an
absurd result with reaching a statutory interpretation it
desires.
II
¶98 Contrary to the majority, I begin as our case law
instructs, with the plain language of the statute. Kalal, 271
Wis. 2d 633, ¶45 ("[S]tatutory interpretation begins with the
language of the statute.") (internal quotations and citations
omitted). "If the meaning of the statute is plain, we
9
No. 2015AP146.awb
ordinarily stop the inquiry." Id. We give statutory language
its common, ordinary, and accepted meaning. Id. (citations
omitted). Technical or specially-defined words or phrases are
given their definitional meaning. Id. "[L]egislative history
is sometimes consulted to confirm or verify a plain-meaning
interpretation." Id., ¶51 (citation omitted).
¶99 I agree with the City, the circuit court and a
unanimous court of appeals that the statute plainly preempts
only "ordinances" and "resolutions." Wisconsin Stat. §
66.0409(2) provides that "no political subdivision may enact or
enforce an ordinance or adopt a resolution" that regulates the
bearing of any firearm unless it is no more stringent than a
statute:
[With exceptions not relevant here], no political
subdivision may enact or enforce an ordinance or adopt a
resolution that regulates the sale, purchase, purchase
delay, transfer, ownership, use, keeping, possession,
bearing, transportation, licensing, permitting,
registration, or taxation of any knife or any firearm or
part of a firearm, including ammunition and reloader
components, unless the ordinance or resolution is the same
as or similar to, and no more stringent than, a state
statute.
¶100 The bus rule is not an "ordinance" or "resolution." A
municipal "ordinance" is "a regulation of a general, permanent
nature, enacted by the governing council of a municipal
corporation . . . " Cross, 94 Wis. 2d at 342. A "resolution"
is an "informal enactment of a temporary nature, providing for
the disposition of a particular piece of the administrative
business of a municipal corporation." Id.
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No. 2015AP146.awb
¶101 The meaning of the statute is plain and our inquiry
may stop here. See Kalal, 271 Wis. 2d 633, ¶45. However, we
also look to legislative history to confirm our plain meaning
interpretation. Id., ¶51. Absent from the majority opinion is
any discussion of the legislative history of the Preemption
Statute. Likely it is absent because it supports an
interpretation completely at odds with the majority's statutory
interpretation.
¶102 As Justice Prosser's concurrence in State v. Cole,
2003 WI 112, ¶¶60-64, 264 Wis. 2d 520, 665 N.W.2d 328,
explained, the Preemption Statute was enacted in 1995 to address
gun control ordinances proposed by the cities of Milwaukee,
Kenosha, and Madison. In response to these proposed ordinances,
Representative DuWayne Johnsrud introduced legislation "to
preempt municipalities from enacting gun control ordinances that
were stricter than state law." Id., ¶64 (emphasis added).
¶103 Looking at how other states have interpreted similar
statutory language also confirms our plain meaning
interpretation. The Oregon court of appeals decision in Doe v.
Medford Sch. Dist. 549C, 221 P.3d 787 (2009) is instructive
because of Oregon's analogous Preemption Statute, which
prohibits only ordinances.3 The Medford court reasoned that "the
3
Oregon's Preemption Statute, Or. Rev. Stat. § 166.170(2)
(2016), provides:
Except as expressly authorized by state statute, no
county, city or other municipal corporation or
district may enact civil or criminal ordinances,
including but not limited to zoning ordinances, to
regulate, restrict or prohibit the sale, acquisition,
(continued)
11
No. 2015AP146.awb
legislature intended the term 'ordinance' to refer to the
equivalent of a law or other enactment of a municipal
corporation that carries the force of law and is enforceable
against the public generally." Id. at 792. Thus, Medford
determined that a school district could issue a policy barring
district employees from bearing arms on school district property
despite its preemption statute, because it was not enforceable
against the general public. Id. at 799.
¶104 Similar to the school district policy in Medford, the
bus rule is not a generally-applicable legislative enactment
like an ordinance. Bus policies are limited in scope and apply
only to members of the public who choose to ride a Madison Metro
bus. See also John E.D. Larkin, Guns in Government Parks &
Buildings——Municipal Enforcement of Safety Rules Without Running
Afoul of State Preemption, 86 Pa. B. Ass'n Q. 128, 137 (July
2015) ("government conduct does not rise to the level of
'regulation' when the government acts in its capacity as a
private owner."); Wolfe v. Twp. of Salisbury, 880 A.2d 62, 69
(Pa. Commw. Ct. 2005) (township could ban hunting, despite a
statewide preemption statute, in township parks because the
township did not act to regulate hunting throughout the
municipality, but only on its own property). Like in Medford,
the bus rule here is appropriately based on the agency's limited
transfer, ownership, possession, storage,
transportation or use of firearms . . . Ordinances
that are contrary to this subsection are void.
12
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authority because it applies only to persons who choose to ride
a Madison Metro bus, rather than to the general public.
¶105 Contrary to the majority, I conclude that the plain
meaning of Wisconsin's Preemption Statute does not clearly
preempt the bus rule. This plain meaning interpretation is
confirmed by the legislative history and informed by examining
the interpretation given to similar language.
¶106 Additionally, the plain meaning interpretation set
forth in this dissent is consistent with that previously
rendered by the Wisconsin Attorney General. It is conspicuous
by its absence from the majority's analysis. After the Vehicle
Statute was amended, see 2011 Wis. Act 35, § 31, the Attorney
General opined that "public and private entities may prohibit or
restrict the possession and transport of weapons."4 I agree.
III
¶107 Having determined that the legislature meant what it
said in the text of the Preemption Statute, the statutory
interpretation exercise may come to an end. Accordingly, there
is no need to address whether the bus rule is more stringent
than state law, when it is not preempted by state law. I pause,
however, to briefly comment on the observation set forth at the
outset of this dissent.
4
Wisconsin Department of Justice, Wisconsin's Carrying
Concealed Weapon Law Questions and Answers 45 (June 1, 2013),
https://www.doj.state.wi.us/sites/default/files/dles/ccw/ccw-
faq.pdf.
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¶108 The majority strays far afield from the question of
statutory interpretation presented here by beginning its
analysis with a discussion about the right to bear arms under
the Second Amendment to the United States Constitution.
Majority op., ¶¶8-12. It contends that this summary discussion
of the Second Amendment provides context and background for the
statutory analysis. Id., ¶8 n.10.
¶109 However, both parties repeatedly advised the court
that this case, as presented, has nothing to do with the
constitutional right to bear arms. The parties intentionally
and strategically framed this case as a case of statutory
interpretation only. Nevertheless, the majority evinces a
further lack of judicial restraint when it reaches out to
address constitutional issues not raised or briefed by the
parties.
¶110 A litany of refrains makes clear that it is the
position of the parties that the constitutional right to bear
arms is not implicated here, either under the United States
Constitution or the Wisconsin Constitution. Counsel for
Wisconsin Carry repeatedly stated:
 " . . . We could have brought that issue (the
constitutional right to bear arms on a city bus), we
didn't. I am not here today to argue it."
 "We did not raise any constitutional issues in this
case."
 "No, we did not raise any constitutional issues."
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No. 2015AP146.awb
 "We did not bring any state or federal constitutional
issues in th[is] case."
Counsel for the City agreed:
 "Well there's a reason the petitioners didn't raise
any constitutional issues in this case. And one of
them is [that] the Vehicle Statute has been in play
since before Act 35."
 "There [have] been no constitutional issues in this
case."
¶111 Undaunted by counsel's protestations to the contrary,
the majority embarks on a discussion of the Second Amendment.
It observes the "extensive textual and historical analysis"
employed by the court in D.C. v. Heller, 554 U.S. 570, 592
(2008), and notes that the Wisconsin Constitution has very
distinctive language from that contained in the United States
Constitution. Majority op., ¶10. Without any analysis, the
majority then declares that the Wisconsin right to bear arms is
also fundamental and is an "individual right." Id.
¶112 The lack of nuance in the majority's declaration
underscores the folly in reaching out to discuss constitutional
issues not presented, briefed or argued. For example, the
majority's discussion of a "pre-existing" fundamental right may
suggest that such a right is absolute. See majority op., ¶9.
However, as counsel for the City stated at oral argument, the
Second Amendment right to bear arms "is not an absolute right.
It's subject to reasonable restrictions. And for years, the
State had a restriction against carrying guns in vehicles and
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No. 2015AP146.awb
it's been articulated in cases what the safety reasons for that
[are]."
¶113 In Heller, the United States Supreme Court explained
"[l]ike most rights, the right secured by the Second Amendment
is not unlimited." 554 U.S. at 626. The Heller court further
observed that "[f]rom Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose." Id. (citations
omitted).
¶114 This is the same lack of nuance that Justice Prosser
warned against in Cole, 264 Wis. 2d 520, ¶¶60-79, (Prosser, J.,
concurring), which was the first time our court interpreted the
new Wisconsin Constitutional Amendment on the right to bear
arms. Justice Prosser explained that the amendment requires a
"nuanced interpretation." Id., ¶60. Tracing the legislative
history and changes in the text of the proposed amendment as it
worked its way through the initial legislative process, he made
clear that merely labelling the right "fundamental" was
insufficient. Id., ¶¶60-79.
¶115 Justice Prosser's concurrence in Cole cautioned that
the Second Amendment right to bear arms in the Wisconsin
Constitution "is not a fundamental right in the same sense that
freedom of speech, freedom of worship, the right to remain
silent, and the right to a jury trial are fundamental rights."
Id., ¶79. Additionally, the concurrence emphasized the need for
nuance when examining the individual nature of the
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constitutional right. It clarified that the choice of the
wording "the people" at the beginning of the amendment to the
Wisconsin Constitution was intended to de-emphasize the nature
of the individual right:
First, although the legislature wanted to establish a
right that would benefit hundreds of thousands of
individual gun owners, it wanted to deemphasize the
'individual' nature of this right. The original
amendment provided that 'Every individual, except an
individual restricted in accordance with federal law,
has the right to keep and bear arms . . . but the
manner of bearing arms may be regulated []' . . . By
removing this limiting clutter from the draft, the
legislature removed any impediment to a reasonable
exercise of the police power. By shifting the right
from 'Every individual' to 'The people,' the amendment
underlined the fact that the police power in Wisconsin
may reasonably restrict specific individuals and
classifications of people (e.g., domestic abusers,
minors) in ways that it may not restrict the people as
a whole.
Id., ¶77.
¶116 The majority's far reaching constitutional discussion
also tackles the Wisconsin Home Rule Amendment, art. XI, § 3,
although neither party briefed or argued the issue.5 In fact
neither party even cites it in passing in their briefs.
5
Wisconsin's Home Rule Amendment provides in relevant part:
Cities and villages organized pursuant to state law
may determine their local affairs and government,
subject only to this constitution and to such
enactments of the legislature of statewide concern as
with uniformity shall affect every city or every
village. The method of such determination shall be
prescribed by the legislature.
Wis. Const. art. XI, § 3(1).
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Admittedly, the non-party amicus does cite to this
constitutional provision, but then clarifies that "[i]n creating
the [bus] Rule, Madison did not rely upon the Home Rule
Amendment, so the issue is whether the Rule is preempted under
statutory [not constitutional] home-rule analysis."
¶117 Having raised the Home Rule Amendment, the majority
then fails to consider the amendment when analyzing the scope of
municipal authority. Perhaps as a result, the majority makes
some broad statements about the scope of authority of
municipalities without nuance or substantiation.
¶118 The majority's broad statements appear to sub silentio
eviscerate the constitutional potency of the Home Rule
Amendment. For example, it proclaims that "if the City has no
legislative authority with respect to that subject, it
necessarily has nothing to delegate to its divisions." Majority
op., ¶23; see also id., ¶28 ("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.").
¶119 Adopted in 1924, the Home Rule Amendment was meant to
give local government significant powers separate from those
bestowed through legislative enactments. Because Home Rule
powers derive from the Wisconsin Constitution and not from the
Wisconsin legislature, there are limits on the legislature's
ability to circumscribe municipal authority through legislative
enactments. Yet, the majority's analysis fails to account for
such possible limitations.
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No. 2015AP146.awb
IV
¶120 For the reasons set forth above, I conclude that the
Preemption Statute does not apply to the bus rule because it is
not an ordinance or resolution enacted by the City. Judicial
restraint requires that this court "assume that the
legislature's intent is expressed in the statutory language"
chosen by the legislature. See Kalal, 271 Wis. 2d 633, ¶44.
"It is the enacted law, not the unenacted intent, that is
binding. . . . " Id.
¶121 Accordingly, I respectfully dissent.
¶122 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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