After nearly four years in the courts, Wisconsin Carry, Inc. won a historic victory for the right to bear arms in Wisconsin. Wisconsin Carry had sued the City of Madison, because the City had refused to remove a rule that had been instituted in 2005 by the City Transit and Parking Commission. The rule forbid the transportation of any weapons on city buses.
Wisconsin has a strong state Constitutional protection for the bearing of arms. Wisconsin Carry did not invoke that protection directly, not did they cite the Second Amendment. Wisconsin had passed a shall issue statute in 2011, Act 35, which assured permit holders the ability to carry “anywhere in the state” with certain exceptions. In 2013, the legislature passed a further statute to strengthen state pre-emption of firearms laws. That statute forbade local governments from passing ordinances or resolutions that regulated the possession, bearing or transportation of any knife or firearm, among other things. Wisconsin Carry relied on Act 35 and the “Local Regulation Statute” for their arguments.
Wisconsin Carry decided to focus on striking down the City of Madison weapon ban, and not to broaden their argument to constitutional issues. That may have been a tactical error.
At the oral arguments, the Supreme Court justices asked if there were any constitutional arguments to strike down the City bus ban. The City said, there is no constitutional argument here. Wisconsin Carry repeatedly refused to claim a constitutional argument, saying that they had not included one in their briefs. The oral arguments may be played here. The case is Wisconsin Carry, Inc. v. City of Madison.
The makeup of the court has changed considerably in the last four years, becoming more originalist and textualist. There are now only two far left justices on the court, Bradley and Abrahamson. Abrahamson has been removed from her position as chief justice by a constitutional amendment, but she is still on the Court.
Five months after the oral arguments, the Wisconsin Supreme Court delivered its opinion. It is worth noting that the court gave a summary of Second Amendment jurisprudence and of Article I, Section 25, the Wisconsin constitutional protection for the right to bear arms. The Court characterized the rights in the amendments as fundamental and pre-existing prior to the Constitution.
The Court struck down the decisions of the local court and the appeals court, and ruled that the bus rule violated both Act 35 and the Local Regulation Statute. The Court did not rule on constitutional grounds.
We hold today that the Local Regulation Statute, Wis. Stat. §66.0409, has withdrawn authority from the City to regulate, either through its governing body or its sub-units (and without regard to the label it affixes to its regulation or manner of regulating), the subjects, identified in the Local Regulation Statute in a manner that is more stringent than an analogous state statute.
We also hold that the Concealed Carry Statute, Wis. Stat. §175.60, preempts the City’s authority to restrict a licensee’s right to carry concealed weapons on the City’s buses so long as the licensee complies with the statute’s requirements.
In the dissent, Justices Bradley and Abrahamson objected to the discussion of the Second Amendment and Article I, Section 25 of the Wisconsin Constitution, saying that the case had no constitutional question, and the plaintiffs had repeatedly affirmed that in oral arguments.
From listening to the oral arguments and reading the decision, it appears a majority of justices would have liked to be able to rule on the constitutionality of the “rule” that they struck down. They felt constrained to do so, because the plaintiffs refused to take the hint and make a constitutional argument. In the dissent, Justice Ann Walsh Bradley, J. , strongly suggests that is what is going on. She writes:
As a harbinger of things to come, the majority begins its analysis not with the statute to be examined, but with a discussion of the Second Amendment of the United States Constitution, examining the constitutional right to bear arms. Majority op.,¶¶8-12.
The previous Supreme Court, under then Chief Justice Abrahamson, had given only the most narrow of meanings to Article 1, Section 25 of the Wisconsin Constitution.
The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose. (Art. 1, § 25)
Bradly cites the first time the Wisconsin Supreme Court ruled on a case involving the amendment, in 2003. Bradley quotes a previous justice, Prosser, who argued that the right is neither fundamental, not of an individual nature. In that decision, the justices cited several other states that had effectively neutered their own state constitutions right to arms. Rather than simply apply the words of Wisconsin’s new amendment, the 2003 case was an example of an “everyone else has neutered amendments we do not like” argument.
Elections have consequences. The new makeup of the Court may be willing to apply ordinary rules of construction to the language of the Second Amendment and Wisconsin’s Article 1, Section 25. The previous Court seemed intent on finding ways to render them toothless and without effect.
©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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