Wisconsin Carry, Inc. v. City of Madison

• Court: Wisconsin Supreme Court
• Decided: March 7, 2017
• Docket: 2015AP000146
• Status: Published

Opinion

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, Roswell, 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.

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¶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.

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¶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.

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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)).

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¶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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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 Appendix A

1 Appendix A No. 2015AP149

2 Appendix A No. 2015AP149

3 Appendix B No. 2015AP149

1 Appendix B No. 2015AP149

2 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.

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.

10 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

¶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 No. 2015AP146.awb

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.

13 No. 2015AP146.awb

¶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."

14 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

¶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

15 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

16 No. 2015AP146.awb

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).

17 No. 2015AP146.awb

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.

18 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.

19 No. 2015AP146.awb