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After nearly four years in the courts, Wisconsin Carry, Inc. won a historic victory for the right to bear arms in in the Cheddar State. Wisconsin Carry had sued the city of Madison because the city had refused to remove a rule that had been instituted in 2005 by the City Transit and Parking Commission. The rule forbade the transportation of any weapons on city buses. The case started in 2013.

Wisconsin has a strong state constitutional protection for the bearing of arms. Wisconsin Carry did not invoke that protection directly, not did they cite the Second Amendment. Wisconsin had passed a shall issue statute in 2011, Act 35, which assured permit holders the ability to carry “anywhere in the state” with certain exceptions.

In 2013, the legislature passed a further statute to strengthen state pre-emption of firearms laws. That statute forbade local governments from passing ordinances or resolutions that regulated the possession, bearing or transportation of any knife or firearm, among other things. Wisconsin Carry relied on Act 35 and the “Local Regulation Statute” for their arguments.

Wisconsin Carry decided to focus on striking down the City of Madison weapon ban, and not to broaden their argument to constitutional issues. That may have been a tactical error. At the oral arguments, the Supreme Court justices asked if there were any constitutional arguments to strike down the City bus ban.

The City said, there is no constitutional argument here. Wisconsin Carry repeatedly refused to claim a constitutional argument, saying that they had not included one in their briefs. The oral arguments may be played here. The case is Wisconsin Carry, Inc. v. City of Madison.

The makeup of the court has changed considerably in the last four years, becoming more originalist and textualist. There are now only two far left justices on the court, Bradley and Abrahamson. Abrahamson has been removed from her position as chief justice by a constitutional amendment, but she is still on the Court.

Five months after the oral arguments, the Wisconsin Supreme Court delivered its opinion.

It’s worth noting that the court gave a summary of Second Amendment jurisprudence and of Article I, Section 25, the Wisconsin constitutional protection for the right to bear arms. The Court characterized the rights in the amendments as fundamental and pre-existing prior to the Constitution.

The Court struck down the decisions of the local court and the appeals court, and ruled that the bus rule violated both Act 35 and the Local Regulation Statute. The Court did not rule on constitutional grounds.

From the decision at

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.

In the dissent, Justices Bradley and Abrahamson objected to the discussion of the Second Amendment and Article I, Section 25 of the Wisconsin Constitution, saying that the case had no constitutional question, and the plaintiffs had repeatedly affirmed that in oral arguments.

From listening to the oral arguments and reading the decision, it appears a majority of justices would have liked to be able to rule on the constitutionality of the “rule” that they struck down.

They felt constrained to do so, because the plaintiffs refused to take the hint and make a constitutional argument. In the dissent, Justice Ann Walsh Bradley, J. , strongly suggests that is what is going on. She writes:

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.

The previous Supreme Court, under then Chief Justice Abrahamson, had given only the most narrow of meanings to Article 1, Section 25 of the Wisconsin Constitution.

 The people have the right to keep and bear arms for security, defense, hunting, recreation, or any other lawful purpose. (Art. 1, § 25)

Bradley cites the first time the Wisconsin Supreme Court ruled on a case involving the amendment, in 2003. Bradley quotes a previous justice, Prosser, who argued that the right is neither fundamental, nor of an individual nature.

In that decision, the justices cited several other states that had effectively neutered their own state constitutions’ right to arms. Rather than simply apply the words of Wisconsin’s new amendment, the 2003 case was an example of an “everyone else has neutered amendments we do not like” argument.

Elections have consequences. The new makeup of the Court may be willing to apply ordinary rules of construction to the language of the Second Amendment and Wisconsin’s Article 1, Section 25. The previous Court seemed intent on finding ways to render them toothless and without effect.

In Madison, and all across the State of Wisconsin, individuals may now exercise their right to bear arms on public transport, without fear of legal prosecution.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

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  1. I try to see the good in people, be optimistic, but some get a shred of authority and they have to start crap with it. Some people, you need them for so much as a library card…

    • Oh come on. Nobody abided by all those rules anyway. You cannot compare bringing a latte aboard a bus with packing a .44 mag in a shoulder rig. And I never touch the handrails unless absolutely necessary. And swearing? Yes mommy. Loud earbuds? Check.

      Guns and skateboards are not equivlent. But the moment someone gets clipped in the shin or shot in the gut, there better be a warning sign to give the lawyers something to argue about.

      • Poorer people tend to ride the bus and many of them are minorities.

        Cut the 44 magnum hyperbole and Just be honest, you don’t want blacks and hispanics to lawfully carry…

        • Good call, Jared.
          Any time someone suggests a citizen’s civil rights do not apply in any public place ( or their own private place), that opinion is based on a prejudice against that person – an assumption of guilt when no crime has occurred. We call that bigotry. Spread the word and never pass up an opportunity to call out the bigots wherever we find them.

      • ” You cannot compare bringing a latte aboard a bus with packing a .44 mag in a shoulder rig.”

        You got that right.

        There’s a *far* better chance of someone spilling that caffinated sugary crap all over a seat someone has to sit in than me discharging that 7-inch scoped Super Redhawk in .44 mag (that I wish I had a shoulder or even better, a chest rig for) I wish I still had…

      • The state preemptive law is crystal clear, the end ruling inevitable and obvious. Just how much did the “tax payers” pay to conclude this in court? The city’s leadership and legal counsel should be fired.

        Bringing “public safety” into the discussion typically deals with fear mongering and hypotheticals and here is the real rub, it IGNORES factual truth. Also, it often presents the lawfully armed citizen as a “threat” and a “risk” too great. Is that intellectually honest based on fact, experience and most importantly repeatable “trends”?

        The armed victim is significantly less likely to be robbed, injured, raped or killed. The morbidity and mortality rates are greatly lowered by being armed. Armed citizens shoot more criminals than trained police. Armed citizens shoot less innocent bystanders than police. And the real uncomfortable truth, a citizen is more likely to be victimized by a trained police officer than a vetted permit carrying citizen-both are exceptionally low, less than a fraction of 1%.

        But go right on and carry on carry on because feelings are important too.

  2. Mr. Weingarten, perhaps there could be a look at the other kind of surface public transport in light of this: Amtrak, which runs numerous trains through the Badger State every day and has it’s own rule prohibiting carry and in most cases, even possession/transport.

    • I believe you are a Chicago-an Mr. Zeller – Has there been a serious effort to get that same ban overturned on Chicago mass transit?

      Considering the recent bitch-slapping the courts have given Chicago on gun ranges, I’d hope that judicial good will would extend to Chicago buses and rail…

        • That’s right, don’t hold your breath waiting for the good old boys living in exurbia and all-white small towns like Cletus to bug ISRA & NRA to do anything about the public transit ban. They don’t care about blacks in Chicago, they drive their monster trucks everywhere.

          Besides, most of them are too scared to take a CTA bus to see a Cub’s game. If they can’t drive right up to the ballpark and walk ten feet to the gate, most of the fat aging ISRA turds would keel over. Take a look at the IGOLD pictures and you’ll see what I mean.

  3. And the city fathers lost no time in trying to work a way to make the ban back,

    “The mayor said at a news conference hours after the ruling that he’ll ask the Legislature to change the state’s concealed-carry law to allow cities to ban weapons on buses. But the gun-friendly Republicans who hold record majorities in the Legislature immediately shot down the idea.

    “I don’t think that’s going to fly,” said Rep. Jeffrey Mursau, one of the Republican legislators who authored the 2011 law that made it legal to carry concealed firearms in most public places, including the state Capitol building.”

    However no one is buying what he’s trying to sell.

    • There are leftist that are funding anti-gun rights movements at the state and municipal level. Best know is former NYC Mayor Bloomturd utilizing his MAIG, Mom’s Who Demand-now “Every Town for Gun Safety” and pledged millions to restrict, prevent and ban all 2A rights.

      Because “public safety” it’s just common sense…

      The Mayor is butt hurt after spending other people’s money and lining his lawyer buddy’s pocket fighting an unwinnable case. What a complete waste of the court’s time and the people’s money.

      If only he were held to some small measure of accountability…

    • Well what do you know the Madison Mayor is a member of anti-gun coalition MAIG/Everytown ran and funded by Billionaire Bloomturd.

      It has been reasonably successful in leftist blue states and those turning purple. The doctrine is get the Mayor and his appointed Police Chief (often the highest paid cop) is obtained as well.

      Then promote fear mongering, armed citizens are a threat to “public safety” and a “public health” threat then promote junk science (propaganda) to create a perception that “police” support the anti-gun agenda-they don’t see police one’s most comprehensive survey ever conducted of actual law enforcement officers.

      Bloomturd funds “public health” through his John Hopkins-Bloomturd pubic health University and funds law schools with anti-gun promotion. He gives millions and built entire university sections/buildings (John Hopkins Unv.)

      Oak Creek
      St. Francis

  4. Anytime the poor can carry a gun in public, on public transportation, just like people in their own car, those poor are now equal to people who have money. Its sad a court had to say so. The courts have so messed up our country. And cities who pass these stupid laws.

    • NRA only has use for black people as plaintiffs in lawsuits, like Otis McDonald and Rhonda Ezell in Illinois. Once the court cases are won, NRA lobbyists like Todd Vandermyde work as hard as they can to sell out blacks to the police unions.

      Then we have racist hicks like state Rep. Brandon Phelps from Harrisburg, IL, down in Little Egypt thirty miles from Kentucky in Klan country. Phelps is the squawking bitch who invoked the name of Otis McDonald when he wanted to stamp his name on the 2013 concealed carry bill, but not a peep about the public transport ban since then. What does he care? The losers who vote for him never leave the county they were born in. Moonshine stills have to be watched constantly. Yee-haw!

      • You’re not going to “get it” so let me begin by saying I am not addressing you in order to change your mind; I am addressing you in order to point out to others the defective workings of that mind. In other words, don’t bother replying unless you want to reinforce my work.

        Someone who brings race into a discussion where race is irrelevant can be said to be unnecessarily focused on race as a driver of society. Someone who is so focused on race in society can be described as a person whose ideology is racially based. And someone whose ideology is racially based is a racist.

      • Little Egypt is *creepy*, and that’s coming from someone whose idea is driving around Southern Missouri in the dead of night looking for abandoned lead mines. I’ve been through that area exactly twice, and don’t plan on ever going again. Something about it just feels off. I put it down to having to drive through the Trail of Tears State Forest.

        • Hero of the Gun Hicks Brandon Phelps is from Harrisburg, the seat of Saline County. Back in the antebellum days, they ran salt leaching operations that “leased” black slaves from Kentucky under special dispensation from the North. The “Old Slave House” is closed now, but I have a color postcard circa the 1960s, “…see the breeding room.”

          Before he used and betrayed Otis McDonald, Phelps came from an illustrious family in southern Illinois, his uncle was a congressman from the area. Phelps’ district goes from Route 13 in Harrisburg down to Cairo. It may be the poorest district in the state.

          Phelps never produced any wealth in his life, he was a “union representative” so he has that in common with his sidekick Todd Vandermyde. They are both mouthpieces and useless parasites that spew hot air and live off the labor of others.

          Latest info. is that Phelps has moved to Eldorado, which is a step up the social scale from Harrisburg. There is no industry any more now that the coal mines closed down, just swarms of prison screws, police and sheriff’s deputies, and the rest of the bloodsucking public sector unions. That’s who votes for Phelps, and that’s why he put Duty to Inform in his “NRA backed” concealed carry bill: the police unions wanted it.

      • Demo Man, you can bitch about the NRA and Todd Vandermyde in every single post if you want – no one can stop you. But I have to ask what Vandermyde, the NRA, and racism have to do with this? This story is about Wisconsin – not Illinois, not the NRA, nothing of the sort. You pull this completely unrelated shit way out of left field, but it has NOTHING TO DO WITH THE SUBJECT of this article.

        So unless you have something RELEVANT to contribute, why don’t you just pipe down and let the adults speak? Go bitch about the NRA somewhere else… maybe there’s ONE person left on this site who hasn’t heard you whine about it!

        • “This story is about Wisconsin – not Illinois, not the NRA, nothing of the sort.”

          This story is definitely not about NRA, you got that right. NRA didn’t fund this suit, grassroots did. Be sure to send in your life membership to NRA. It will make you feel like you are conforming to the group, and Wayne LaPierre needs a refill of gold weave toilet paper for his private jet. You can help make that happen, even if subject association is not your expertise.

          Lucky for you, there is no cognitive ability test for NRA membership. Just wave the miniature flag and do what you’re told, Wayne will handle the rest.

        • Uh, sorry – that’s a total fail… I’m not an NRA member, and I haven’t been for, oh, 15-20 years now. Strangely enough, I dropped out for many of the same reasons that you hate them – but the difference is, I don’t feel a need to constantly whine about it to everyone! You ever hear of “preaching to the choir”???

          Seriously, give it a rest and take your strawmen with you. Maybe you should consider getting that blood pressure under control.

        • “I’m not an NRA member, and I haven’t been for, oh, 15-20 years now.”
          Good to know there is still some light left in the forest.

          “…I don’t feel a need to constantly whine about it to everyone!”
          That’s because tough guys like you hold their feelings inside. You can “share” your feelz here, bro! This is a safe space! You have a right to be disappointed in the bureaucrats that run NRA. They know what’s best for you, but I’m sorry you feel that way.

          “Maybe you should consider getting that blood pressure under control.”
          Do they offer mail order nurse assistant degrees at the truck stop now? See if they have counseling for disappointment and depression available, in addition to the in-house chiropractor. The social worker’s office is usually behind the CB radio display. Don’t be afraid to ask for help.

        • “tough guys like you”? Listen FIB, you know absolutely NOTHING about me – zero, zilch, nada. For all you know, I’m not even a guy, let alone a “tough” one! LOL As everyone reading this can clearly see, you have major issues.

          Fortunately I’ve outgrown arguing on the internet, so you and your strawmen will have to enjoy it without me. This will be my last post directed TO you, although not necessarily the last post ABOUT you…

        • “…you know absolutely NOTHING about me – zero, zilch, nada.”
          That’s okay, your comments are uninteresting, like you.

          “…you have major issues.”
          Do they offer psychiatric counseling classes at your trailer park? Where do you find the time after weed-wacking and picking up raccoon turds?

          “This will be my last post directed TO you, although not necessarily the last post ABOUT you…”
          Admitting that you are a snitch, that’s some progress. Police collaborators usually have the psych profile of informants.

  5. The problem with a weapons ban on public transportation is that it prevents people from carrying a weapon EVERYWHERE, if their journey there includes the use of public transport. It is a de facto ban on weapons in the whole city for people who use public transportation.

    Not only does it violate the 2nd Amendment, but it selectively targets the poor and elderly. Therefore, it is VERY unconstitutional.

    • pffft next you’ll say that cities like NYC are selectively targeting the poor because you can’t get a permit to buy a handgun without shelling out hundreds of dollars and missing work to go during business hours… and because you can only get a carry permit if you can prove you are carrying large amounts of cash.

        • Yes sir, yes he did. As well as mentioning begging permission in order to “justify” exercising a “right”. Somehow that just doesn’t seem like a right to me… I’m odd like that.

    • I bet very few NRA members ride city buses. Wisconsin is mostly just swarms of small towns outside the Milwaukee area. Note how a grassroots group had to sue the state to get public transit carry, not NRA.

      The same thing happened here in Illinois. Grassroots people introduced Otis McDonald to Alan Gura. McDonald v. Chicago was funded by SAF, not NRA. Later NRA butted into Gura’s case and ended up stealing $1.3 MILLION in lawyer fees, after they initially opposed Gura taking the case in 2007.

      Right now NRA state lobbyist Todd Vandermyde is playing ball with anti-gun Chicago area Democratic politicians on their “penalty enhancement” gun bill in the Illinois state Senate, but still no effort whatsoever to repeal the public transit ban in the carry law. Backstabbing gun owners and playing both sides:
      that’s “your” NRA!

  6. the reality of the situation is that liberals actually cannot ban weapons on busses or other “gun free” zones, they can only ban law-abiding people from taking weapons into those areas.

    there’s a reason why so many shooting occur in “gun free” zones.

    • “The reality of the situation is that liberals actually cannot ban weapons on busses or other “gun free” zones, they can only ban law-abiding people from taking weapons into those areas.”

      Now THAT’s a great sound-bite! I’ll have to write that one down… Are you the original author?

  7. Meanwhile in Illinois, NRA state lobbyist Todd Vandermyde is making excuses about how it’s okay that the state Senate is taking up a bill for “penalty enhancement” of “gun crimes” for repeat felons.

    One little problem, leaving your house with a gun on your person (UUW) is a felony for the first offense, so there are thousands of legit citizens who have a felony UUW from the bad old days before Illinois adopted concealed carry. Chicago police superintendent Eddie Johnson was in Springfield testifying for the penalty enhancement bill, in front of state Senator Kwame Raoul’s committee.

    Back in 2013, Raoul was the bad guy pushing a “may-issue” carry bill. Today he and Vandermyde are on the same side as the Chicago police to increase firearm penalties. Once again, NRA plays both sides and works with the police unions and anti-gun politicians.

    No action on removing the public transit ban in Illinois’ carry bill, but that only affects black people in Chicago, not the white racist hicks who are stupid enough to send money to NRA/ILA so Chris Cox can continue to pay Vandermyde to sell out the whole state. Thanks Todd!

  8. a lot of states do this classwar

    The Worst Case States

    1.) Oklahoma as leader Bus and Train Felony
    2.) Missouri Bus Felony / Train Misdemeanor
    3.) Commirado Unlicensed Felony (for non sterile airport too)

    the other sucker but it can ignored if carrying conclead (no felony !)

    1.) Illinois (bus and train = misdemeanor)
    2.) Sout Carolina (any over 10 passenger = misdemeanor)
    3.) New Mexico (bus misdemeanor / train legal ^^)
    4.) Montana (bus legal/train misdemeanor)
    5.) Ohio (same s car need permit)

  9. They probably didn’t make the constitutional arguments because they were worried about bad precedent early in the litigation when the (state) Supreme Court was against them. Parties are generally not allowed to bring up new arguments late in the game. Courts of last resort are a little different because the case effects more than just the people before the court.


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