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SCOW: Madison can’t ban weapons on city buses; statutes don’t mean what they say

Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, 3/7/17, reversing a published court of appeals opinion, 2015WI App 74, case activity (including briefs)

Justice Kelly’s maiden majority opinion opens with a 4-page discussion of a subject both parties disavowed–the Second Amendment right to bear arms. According to the briefs, this case posed only an issue of statutory interpretation–essentially, whether §66.0409, which governs the  “local regulation of weapons,” preempts a City of Madison Transit and Parking Commission rule that prohibits people from carrying weapons, including guns, on City buses.

By the end of the primer on the 2nd Amendment, you can predict the result: A 5-2 opinion reversing a unanimous court of appeals decision holding that §66.0409(2)’s plain language applies to a “political subsdivision’s” “ordinances” or “resolutions” not to a  Transit Commission “rule” banning weapons. But you might not predict that the majority opinion would dial back the conservative “strict constructionist” approach to statutory interpretation adopted in State ex rel Kalal v. Cir. Ct. for Dane County.  Henceforth, a statute’s text should be no obstacle to the interpretation you desire.

Sec. 66.0409(2) says that “no political subdivision may enact or enforce an ordinance or adopt a resolution that regulates the . . . possession . . . of any knife or any firearm or any part of firearm . . . unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.” The majority avoids the plain language by finding that a city can only act through “ordinances” and “resolutions. ” And the city can’t delegate to a commission rule-making authority that the city itself lacks due to §66.0409(2). Ergo, the commission can’t possibly have the authority to adopt a rule baning weapons on buses. ¶¶21-28, ¶¶38-39.

If you want to burrow into the many sources of a municipality’s or commission’s authority, by all means read ¶¶21-39 of the decision. If you want to know the plain meaning (as opposed to the plain text) of  §66.0409, start reading at ¶40.

Most importantly, if you are engaging in statutory interpretation, be aware that SCOW has here approved several departures from past practices. Indeed, Justice AW Bradley wonders what is left of Kalal’s seminal rules of statutory interpretation after reviewing the majority’s new “plaining meaning interpretation.” Dissent ¶84.

Under Kalal, decided in 2004:

  • “Statutory interpretation begins with the language of the statute.” Kalal, ¶24. “If the meaning of a statute is plain, we ordinarily stop the inquiry.” ¶45.
  • “Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their special definitional meaning.” Id. ¶45.
  • “[S]tatutory 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 closely-related statutes; and reasonably to avoid absurd or unreasonable results.” Id. ¶46.
  • “[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.” Id. ¶48.

Under Wisconsin Carry:

  • The axiom “if the plain meaning of the statute is clear, a court need not look to rules of statutory construction or other extrinsic aids” does not “reduce the judicial function to mechanically comparing” the words at issue to the words of a statute. “We are not merely arbiters of word choice.” Id. ¶19.
  • Courts don’t start by applying the plain language or text of a statute. They first discern the plain meaning of the statute by examining the statute’s text, context, structure and relationship to surrounding statutes. Id. ¶20.
  • “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. ¶20. [Justice AWB likens this approach to determining the result you want and then interpreting the statute accordingly. ¶¶92-97.]
  • If the words “ordinances” and “resolutions” mean literally “ordinances” and “resolutions” then the legislature would be required to list every possible label for a city’s legislative act, and the city could just make up new names. That would be “law-making as comedy, with a hapless legislature chasing about a wily municipality” as it enacts ordinances on forbidden subjects and then changes their titles. Id. ¶46.

Political issues sure make strange bedfellows. The majority decision defies textualism’s greatest champion: Antonin Scalia, who in King v. Burwell (upholding the Affordable Care Act) famously said: “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.” Click here.  Of the majority opinion one could say “Words no longer have meaning if a “political sub-division’s ordinance or resolution” means a “non-political subdivision’s rule.” The good news is Kalal‘s principles of statutory construction are now almost as flexible as a yogi thanks to the majority opinion.

There’s a sign on the wall
But she wants to be sure
‘Cause you know sometimes words have two meanings.

–Led Zeppelin (Stairway to Heaven)









{ 1 comment… add one }
  • Ellen Henak March 11, 2017, 10:39 am

    It’s a good thing Lewis Carroll is one of my favorite authors:

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

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