The Wisconsin Court of Appeals issued an opinion in Wisconsin Carry, Inc. v. City of Madison, 2015AP146 (Recommended for Publication), clearly distinguishing between agency rules and ordinances or resolutions when applying the preemption provision outlined in section 66.0409, Wis. Stats.
Section 66.0409 relates to the local regulation of firearms, and includes a preemption provision precluding any “political subdivision” from enacting an ordinance or resolution relating to firearms that is more stringent than the applicable state statutes. The statute defines “political subdivision” as “a city, village, town or county.” Pursuant to a city ordinance authorizing it to establish “rules and procedures” relating to transit matters, the City of Madison Transit and Parking Commission adopted a rule prohibiting riders on city buses from carrying weapons. Wisconsin Carry, a gun rights organization, and one of its members, filed a declaratory judgment action asking the court to find the so-called “bus rule” was preempted by § 66.0409. The circuit court denied the request and granted the City’s motion to dismiss on the grounds that the bus rule did not constitute an ordinance or resolution enacted by a “city, village, town or county.”
The court of appeals affirmed on the same grounds. First, the court explained the express language of § 66.0409 only preempts “ordinances” and “resolutions.” A rule adopted by a city agency does not fall within the definition of either of these terms, a point which Wisconsin Carry conceded. Further, the court explained that it was not unreasonable for the legislature to differentiate between the broader legislative powers of a municipality and the more limited powers of a municipal agency, leaving open the possibility of a limited firearms regulation by the latter. The court, therefore, found the bus rule was not preempted by § 66.0409 and upheld dismissal of Wisconsin Carry’s suit.
While the court’s holding in this matter was quite straightforward,it specifically noted thatits decision did not address whether the totality of state firearms regulations preempts the bus rule nor whether § 66.0409 preempts the city ordinance under which the bus rule was promulgated. As a result, this limited ruling leaves the door open to potential future challenges.