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.

Friday, August 20, 2004

The truth about Concealed Carry in Nebraska

I have written on this subject in the past, but this will be the first time that I have assimilated this information in one place, at with one time, with the available links.



Preface



What the reader must understand first and fore most is the difference between powers and rights. The people, of a country, state, county or locality have rights and powers. Only a living breathing carbon life form lays claim to a right. The Government is an entity, an inanimate object, a system created by the people to be an umbrella of concepts and rules that they mutually agree to abide by and live under. In establishing a government the people grant certain powers, not to the government its self, but to the people they elect to run the system.



The people that run the government have the same rights as everyone else independent of their service to the people. They are not as they so often refer to themselves, government servants; they are servants of the people. In their service to the people, they have been, granted certain powers by the people to act on behalf of the people. The powers granted to them are detailed in a document commonly called a Constitution. It should be reminded that these are the only powers they can lay claim to. It is a violation of their oath of office and the trust of the people they serve for them to assume more power than they have been granted.



History 1867 to 1875



Nebraska became the 37th state in 1867 and the current Constitution was adopted in 1875. At the time of its adoption the State Constitution was silent on the subject of the people to keep and bear arms. It did, as all constitutions must do, grant certain powers to the people entrusted with the operation of the state government. Nowhere in that document was the power to regulate firearms given. While some will claim it is within the inherent "police power" of the state to enact such regulations, Article CI-26 clearly states that all powers not herein granted remain with the people. This is important given that, there were several other states that enacted constitutions, before and after Nebraska, which saw the need to include language such as, or similar to; "The people have the right to keep and bear arms, but the state reserves the power to regulate the manner in which they are carried". It should also be noted that the Nebraska legislature, unlike the other 49 states, is comprised of one house called the Unicameral and all persons elected to this body are referred to as Senators



In the Interim 1876 to 1987



The Nebraska legislature over a period of years, as the population of the state increased, enacted statutes that established class sizes for the various cities, towns and villages. The legislature further “empowered” these entities to enact ordinances independent of legislative approval. For the larger population centers this was referred to as “Home Rule Authority”. Among the “powers” delegated, by statute, to the cities of appropriate class size was the “power to prevent and punish the carrying of concealed weapons”. Additionally, as near a year as this writer can determine, the legislature enacted Statute 28-1202 in 1943. This law made it a misdemeanor crime to carry a concealed weapon, with the caveat that “affirmative defense” (remember Ohio) was available to a prudent person.



(Aside 1: This law has been rumored to have been enacted for the “good ole boy network”, meaning that the Sheriffs knew all the “prudent persons” in their counties, and it enabled them to keep better tabs on “outsiders”)



Year 1988



Following the process specified by the Constitution a few dedicated individuals started the initiative process to amend the Constitution. Their efforts succeeded in placing, what has become known as, Initiative Measure No. 403 on the November ballot that year. It passed into law when a majority of the citizens of the State of Nebraska voted in favor of it. Initiative Measure No. 403 added the following to Article CI-1 of the Constitution; “and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”



This is the first time in the history of the state of Nebraska that the mention of the right to keep and bears arms appeared in the Constitution. Not only did it not give any power to the state, it specifically told the State and it’s political subdivisions that they must keep hands off the subject. A number of the people that started this grassroots process have stated that their intent (in 1988) “was to make Nebraska the equivalent of Vermont, in that, the concealed or open carry of a firearm is not subject to licensure or permit as long as the person is not prohibited from owning one.”



(Aside 2: Since that initiative was passed the city of Omaha enacted an Ordinance that requires person to take training and apply for a permit to “Open Carry” within city limits).


(Aside 3: Since that initiative was passed the city of Lincoln enacted several Ordinances that bar or limit possession of firearms.)



Since then 1988 to present



There have only been four challenges to the language contained in Article CI-1 since 1988. One concerns a Death Penalty case where the Defendant asserted that the “right to life” clause forbade the State from executing him. A second case State v. LaChapelle dealt with the possession of a short-barreled shotgun. The other two were handed down combined into one decision by the High Court. These are State v. Comeau and State v. Rush. Comeau was charged with possessing an altered firearm (serial number ground off) and Rush was charged with “Being a felon in possession of a firearm”.



Obviously the death penalty case had nothing to do with the “Right to Keep and Bear arms”. In LaChapelle the court upheld the lower court verdict, stating that the “inherent police power’ of a state permitted it to ban certain types of firearms common to criminal use.



In Comeau the High Court upheld the conviction as legal. It is more of a property case than a “keep and bear arms” case anyway. By comparison being in possession of an automobile with altered numbers is the same thing. The Court also upheld the conviction against Rush, ruling that there is no right that is absolute and that barring certain “proven to be dangerous persons” from owning weapons is a reasonable restriction of a States “Inherent Police Power”.

(Aside 4: “Inherent police power” in the Comeau/Rush decision is defined as; “The police power is an attribute of state sovereignty, and, within the limitations of state and federal Constitutions, the state may, in its exercise, enact laws for the promotion of public safety, health, morals, and generally for the public welfare.”)



The Decision also contained language that gave limit to how far that “Inherent Police” power can go; “We stress, however, that the legitimate governmental purpose in regulating the right to bear arms cannot be pursued by means that broadly stifle the exercise of this right where the governmental purpose can be more narrowly achieved.” Additionally stated in Comeau are the words; “To be sure, the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections.”



(Aside 5: Case law concerning Article CI-26 supports that contention in that the court ruled the following concerning Article CI-26: A state agency may not, by invoking the doctrine of police power, exercise powers not granted it by and inconsistent with provisions of the state Constitution. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938).)



Conclusions



States do have the “inherent police power to enact laws. The Courts have been very clear in that they have ruled that: There are limitations and legitimate government cannot enact laws that violate the Bill of Rights and other Constitutional protections. In essence the state violated the constitution when they conveyed power to regulate firearms to the sub-divisions under the home rule doctrine and specifically when they enacted Statute 28-1202. Even the “Home rule” amendment states that ordinances must be subject to the constitution. Not even under the color of the doctrine of police power did the Legislature have the authority or power to do so. That alone should render that statute and all ordinances null and void.



Concealed Carry Efforts,/p>

Every session for the last seven or eight years Senator Gene Tyson has introduced a Bill in the unicameral that would make concealed carry law. Senator Tyson’s Bill has always been legislation that pretty much mirrors what other states have enacted. As should be expected there are other Senators that are opposed to it and they generally succeed in attaching amendments that convolute the provisions of the bill.



Most notably among them is Senator Ernie Chambers of Omaha. Senator chambers opposes concealed carry entirely and has, even after getting several of his amendments attached to the bill, successfully filibustered the passage of it. It takes 25 votes in the Unicameral to send a law to the Governors desk for signature or veto. There has never been less than the required number of Senators that support Senator Tyson’s efforts. The problem has always been the 34 votes it takes to override a Senator Chambers Filibuster. It seems to be perpetually one vote shy in this regard.



There is another side to this story as well. Some of the individuals that were most responsible for Initiative Measure No. 403 testify before the legislature in opposition to the proposed law. Their position is that, concealed carry without permit or license is and always has been the law in Nebraska, especially since the people approved it at general election in 1988. Their contention is that neither the State nor any political sub-division has the power granted it by the people to create such laws.




Observations



It should be obvious to anyone understands law, the State of Nebraska and it’s Political Subdivisions have never had the power, even the inherent police power to regulate firearms. The Constitution remained silent on the “Right to Keep and Bear arms, with the exception of Article CI-26, until 1988.



That plainly indicates that the Legislature of the State of Nebraska acted without regard to the Constitution (Article CI-26), the will of the people and the power to do so when it enacted Statute 28-1202. That should render it unconstitutional. It should also render unconstitutional any and all sub-divisional ordinances that were passed under the color of home rule, in that the State cannot convey or grant to a sub-division a power that they themselves have not been granted.



Contention



Without mincing words, the contention is, and backed up by the Constitution and case law, that concealed carry has always been legal in the state of Nebraska without the requirement for license or permits the same as it has been in Vermont.



There are however prosecutors and judges in the state that are either not familiar with the concept of Constitutional law or simply chose to ignore it by continually prosecuting charges under 28-1202 or other local ordinances. If they are aware of these facts and still insist on prosecuting a concealed carry charge then they are in violation of their oath of office.





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