From the Heartland

This is my soap box, on these pages I publish my opinions on firearms and any other subject I feel like writing about.

Tuesday, August 24, 2004

A follow up and a challenge

I recently posted a dissertation that supports the contention held by a lot of Nebraskans that concealed carry is and always has been legal in the Cornhusker state.

I have a challenge for anybody that thinks they are up to it.

The background

Most elected and/or appointed Public Servants including Judges, Prosecutors, Chiefs of Police and High Sheriffs will to a man/woman declare, while citing Statute 28-1202, that concealed carry is illegal in the state of Nebraska. Very few, if any, will also admit that there is any situation where, as outlined in 28-1202, an "affirmative defense by a prudent person" would be acceptable to them. That is what 911 is for. Leave it to the professionals.


"Affirmative defense" means your guilty until you can prove your innocence. It is the same thing as Lincoln Police Chief Tom Casady locking up the bride after the wedding until she can prove, to a judge or jury, that she is not a bigamist. Or the High Sheriff locking up a voter at the polls until he can prove, to the same judge or jury, he hasn't voted twice in that election. That is what "affirmative defense" is all about. You have been deemed guilty and you have to go to court to prove that you are innocent.

A "prudent person" is a myth of law, a legal ghost if you will. Although we would all like to believe that we are prudent people, it is not for us to decide. Concerning Statute 28-1202, it is up to the court to determine whether you were acting as a "prudent person" would under the same circumstances. In a courtroom the defense can produce as many people that say they would do something, as the prosecutor can produce saying that they wouldn't. What it amounts to is the ambiguity of the judge or jury that day.

If the judge is anti-gun then there will NEVER be an acceptable case of an "affirmative defense" in that courtroom and the only "prudent people" are the ones that do not carry a gun and dial 911. In this case you have absolutely no recourse, no matter how good you believed your reason to be. See the big picture here?

Open Carry is Legal

Any number of Public Servants in the state of Nebraska readily claim that the state has no need for concealed carry, because open carry is and always has been legal. If someone feels the need to wear a sideaarm they are free to strap it on and go about their business. That is their mantra.

Principal v. Practice

This may be well and good except that the city of Omaha (since the 1988 Innitiative) has illegaly passed an ordinance that requires training and a government issued permission slip, to be purchased, in order to legaly carry a firearm openly within the city limits.

Several Officers in the Lincoln area including Lancaster County Deputy Sheriffs have stated that persons they find openly carrying a sidearm will be cited for "Disturbing the Peace". So it seems that open carry is legal in principal, but not in practice.

(Aside; I have been told that there does not even have to be a complaint. If you are openly carrying a sidearm, that is prima facia eveidence that you are disturbing someones peace and you will be cited and/or booked into jail and have your firearm confiscated.)

Can you say OHIO?

Is there a pattern here? Concealed carry is illegal! Affirmative Defense! Prudent Person! Open carry legal but punished! Let's say it all together now 1.. 2.. 3.. OHIO.

Facts in law

In order for something to be legal, or illegal for that matter, there must be a basis of fact in the law. Since the Constitution of the state of Nebraska was silent on the subject of firearms untl Initiative Measure No. 403 was enacted "by the people" in 1988, where is the basis in law for the Public Servants to proclaim that open carry is legal?

Until Statute 28-1202 was passed (1943 approx) even the State Statutes were silent on the issue of firearms. What Statute, prior to 1988 is the basis of fact in law for Public Servants to proclaim that open carry is legal?

The Challenge

Produce verifiable evidence in the form of Consitutional statement, Statute or case law where there is a basis of fact in law in the state of Nebraska proving that open carry is legal and that concealed carry is not.


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