Wis. Carry, Inc. v. City of Madison, 2015AP146

• Decision Date: 07 March 2017
• Docket Number: No. 2015AP146,2015AP146
• Citation: 892 N.W.2d 233,373 Wis.2d 543
• Parties: WISCONSIN CARRY, INC. and Thomas Waltz, Petitioners-Appellants-Petitioner, v. CITY OF MADISON, Respondent-Respondent-Respondent.
• Court: Wisconsin Supreme Court

373 Wis.2d 543

892 N.W.2d 233

WISCONSIN CARRY, INC. and Thomas Waltz, Petitioners-Appellants-Petitioner,

v.CITY OF MADISON, Respondent-Respondent-Respondent.

No. 2015AP146

Supreme Court of Wisconsin.

Oral Argument: September 9, 2016

Opinion Filed: March 7, 2017

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.

DANIEL KELLY, J.

¶1 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

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

¶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 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 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 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 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, 23 L.Ed. 588 (1875) ; see also District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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 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 , 554 U.S. at 592, 128 S.Ct. 2783 (emphasis added). Wisconsin's protection of this right does not contain the grammatical and linguistic oddities that necessitated Heller 'sexhaustive 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 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 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...