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Wisconsin Carry, Inc. v. City of Madison, 2015AP146, petition for review granted 1/11/16

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Does the state statute preempting certain local firearm regulations, § 66.0409(2), apply to the Madison Transit and Parking Commission’s rule prohibiting weapons on city buses?

As described in our post on the court of appeals decision, the court of appeals rejected Wisconsin Carry’s argument that the rule was preempted by § 66.0409(2), holding that the plain language of the statute applies only to “ordinances” or “resolutions” enacted by a political subdivision and (as even Wisconsin Carry conceded) the Commission’s rule isn’t an “ordinance” or “resolution” under well-established law, Cross v. Soderbeck, 94 Wis. 2d 331, 342, 288 N.W.2d 779 (1980).

The court of appeals said Wisconsin Carry was essentially claiming the legislature did not mean what it said in § 66.0409(2), and so was asking the court skip the words of the statute and instead surmise that it was intended to achieve a general preemption of local firearms regulation. (¶10). The court declined this request because “judicial restraint dictates that courts ‘assume that the legislature’s intent is expressed in the statutory language’ chosen by the legislature. …. ‘It is the enacted law, not the unenacted intent, that is binding ….’” (¶10, quoting State ex rel. Kalal  v. Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 (emphasis added)). We’ll see if the supreme court (or a majority thereof) finds itself similarly restrained.

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