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Wednesday, August 19, 2015

Local Weapons Ban Survives Gun Rights Organization’s Preemption Challenge

Preemption is a common feature in state firearms laws, establishing that state law controls over local regulations, and leaving local governments to wonder what authority remains to adopt local policies. Recently, a Wisconsin court upheld a rule adopted by the City of Madison’s Transit and Parking Commission, referred to as the “bus rule,” banning weapons from city buses. Wisconsin Carry, Inc. v. City of Madison, No. 2015AP146, (Wis. Ct. App. Aug. 6, 2015). Wisconsin Carry Inc., a gun rights organization, had challenged the rule, arguing that the bus rule is preempted by a Wisconsin statute, § 66.0409:

...no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, 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).
The statute defines “political subdivision” as a city, village, town or county. WIS. STAT. § 66.0409(1)(b).

The City argued that the statute did not preempt the bus rule because the Transit and Parking Commission does not qualify as a “political subdivision,” and the rule is neither an “ordinance” nor a “resolution.” Both the circuit court and the appellate court agreed, with the appellate court finding that a municipal agency rule is not an “ordinance” or “resolution” under the plain language of the preemption statute.

In Illinois, concealed carry licensees are already prohibited from carrying firearms on publicly-funded buses and trains (430 ILCS 66/65(8)), and Illinois’ preemption statutes would not allow local governments to adopt contrary regulations. (430 ILCS 65/13.1(b) (preempting “regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and ammunition” by FOID card holders); 430 ILCS 66/90 (preempting “regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns” by concealed carry licensees)). 

The Wisconsin Carry decision is consistent with decisions in other states where local policies survived preemption challenges under state firearms laws. (Cherry v. Municipality of Metropolitan Seattle, 116 Wash.2d 794, 802-03 (1991)(“State Legislature’s explicit intention to preempt the field of firearms ‘laws and ordinances’ . . . [is not] preemptive of the authority of a municipal employer to regulate or prohibit a municipal employee's possession of firearms while on the job or in the workplace.”); Doe v. Medford Sch. Dist. 549C, 221 P.3d 787, 799 (App. Ct. 2009)(“school district’s internal employment policy does not represent the sort of exercise of the ‘authority to regulate’ firearms that the statute preempts.”). 

The Wisconsin Carry decision should also provide some support for Illinois local governments seeking develop employee work rules and other local policies outside the scope of the preemption in Illinois’ statutes. Local governments should consult their attorneys to adopt appropriate personnel policies addressing weapons and concealed carry in the workplace, if they have not already.

Unfortunately, the support offered by the Wisconsin Carry may not last long, because the court left the door open to a challenge to the ordinance that gave the Transit and Parking Commission the authority to adopt the bus rule, and a challenge arguing multiple state statutes, collectively, preempt the Commission’s action.

Post authored by Daniel J. Bolin and Kathleen O’Grady


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