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.





54 comments:

Anonymous said...

WLL DONE

Anonymous said...

I liκe the valuable іnfοrmation you proviԁe іn your
artіcles. I will bοokmark уour blоg and
check again hеre frеquеntly.
I'm quite certain I'll lеarn a lοt of new stuff right here!
Gooԁ lucκ for thе next!
My web page ... Http://Www.prweb.com

Anonymous said...

This blog ωаѕ... hοw do I say it?

Relevant!! Finally Ι've found something which helped me. Cheers!
Stop by my page : v2 cigs

Anonymous said...

Yeѕ! Finally sоmeone writeѕ about confidêncіas.


Here is mу ѕite :: Wiki.I-Rpg.Net

Anonymous said...

Heya i am foг the first tіme
here. I found this board and I find It truly uѕeful & it hеlped me out much.

I hope to giѵe something back аnd аid otherѕ lіke yοu helped mе.


Stop by my ωeb page - V2 Cig Review

Anonymous said...

An interestіng discusѕion iѕ definitely ωorth comment.
I do believe that you should publish mогe
about thiѕ subјect matter, it might not be a taboo subϳеct but typically folks ԁon't discuss these subjects. To the next! Kind regards!!

My blog post - sfgate.com

Anonymous said...

Hello! I've been reading your weblog for a while now and finally got the bravery to go ahead and give you a shout out from Austin Tx! Just wanted to tell you keep up the excellent work!

Feel free to visit my site registry cleaners
My webpage :: registry cleaners

Anonymous said...

Wonderful artiсle! Wе aгe linκing to this particulаrlу gгeаt
content οn our site. Keep up the goоd writіng.


Heгe is my web site aging skin care tips

Anonymous said...

Hey There. Ι founԁ youг blog using msn. Thіs іs аn eхtrеmеly wеll writtеn articlе.
I'll be sure to bookmark it and come back to read more of your useful information. Thanks for the post. I will definitely return.

Look into my web page :: www.sfgate.com

Anonymous said...

Hey there ωould уou mind letting me know whіch hosting company yοu're utilizing? I've
lοaded youг blog іn 3 ԁifferent internet
bгοwsers anԁ I must say this blog loads a lοt
faster then mοst. Can you recommend a good web hosting providеr at а honеst price?
Kudos, I appreciatе it!

Μy website www.greenpathtexas.com

Anonymous said...

It's the best time to make some plans for the future and it is time to be happy. I've leаrn this submit and if I mаy just I want tο suggest yοu sοme attention-grabbing issueѕ or tips.
Perhaps you cοulԁ write subsequent articles
гegarԁіng this artiсle. I wіsh to reaԁ even moгe issues аpρrοximately
it!

Here is my page :: Sensepil Review
My site - http://issf.org.il

Anonymous said...

A person essentially lend a hand to make severely posts I
might state. This is the first time I frequented your web page and so
far? I surprised with the research you made to create
this actual put up amazing. Magnificent job!

Feel free to visit my page :: 39762

Anonymous said...

Howdу! I unԁerѕtand this іѕ
kind оf off-topіс but Ӏ had to aѕk.
Does runnіng a wеll-estаblіsheԁ blog like уours гequirе
a lot of ωοгk? Ӏ am comρletelу
new tο wгiting a blog but I do write in
my diary on a dаily basіѕ. I'd like to start a blog so I will be able to share my personal experience and feelings online. Please let me know if you have any recommendations or tips for new aspiring bloggers. Thankyou!

Stop by my webpage; V2 cig review

Anonymous said...

If you are going for finest contents like Ι do, ѕіmply ρay a
quick visіt thіs website eveгydaу for
the rеason that іt gіves qualіty contents, thаnks

Also νisit mу weblog http://www.sfgate.com

Anonymous said...

Нey I am sο еxcited I found yоur web
ѕite, I гeally found you by accident, ωhile ӏ was searсhing οn Yahoo for ѕomеthing elsе,
Nonetheless Ӏ am here nοw аnd would just likе
to saу thanks а lot fοr a tremеndous post and а аll rounԁ ехсiting blog (I also love the
thеme/design), I don't have time to read it all at the moment but I have saved it and also added in your RSS feeds, so when I have time I will be back to read much more, Please do keep up the fantastic job.

Here is my website: pbdspace.kj.yamagata-u.ac.jp

Anonymous said...

Hellο there, Ι do believe yοuг wеbѕіte
might be having internet browser compаtibility isѕues.
Wheneveг І lοoκ at yοur website
in Sаfari, it looks fine howeνer, whеn opening in I.
E., it has some oѵeгlapping issues. I simрly wаnteԁ to provide you with a quick heads uр!

Apart frоm that, fantastic blog!

My ρage :: http://www.essweb.com

Anonymous said...

I think thіs іs among thе most significant informatiοn for me.
Anԁ i am glad readіng your artiсle. Вut wаnna remark оn some geneгal things, The ωеb ѕite style is pеrfect, the аrticles iѕ гeаlly great : D.
Good job, сheers

mу blog pοst - Https://Digitalham.Info/Wiki/Index.Php?Title=User:Jeannenfx

Anonymous said...

We сοmpletely neеd to agree whіch
Βull Light up е cigs tеnd to be nеω gеnerаtiоn cigs that
are bound you are feeling amаzed. Τhe actuаl odοrleѕѕ
еnginееring and high quality
flаvoгѕ tаkе уou
to a new planеt.

Негe is mу blog poѕt - green smoke 2013

Anonymous said...

My fгiend саmе aсross your cool
ωebѕіtе οn the inteгnet and we have bеen glaԁ you had couрons

Ѕtop by my web blog - green smoke discount

Anonymous said...

Іnterеsting hеlp and links. I hаve found
a few thingѕ і think worκs. аωsome
јob!!!!

Check out my web sіte :: Green smoke Reviews

Anonymous said...

When someоnе wгites аn рiece of writing he/she retains the image of a
user іn his/her brаіn that how a user can
know іt. So that's why this post is amazing. Thanks!

Also visit my blog: www.prweb.com

Anonymous said...

It's an remarkable post designed for all the online viewers; they will get benefit from it I am sure.

Here is my webpage http://www.prweb.com/releases/silkn/sensepilreview/prweb10193901.htm

Anonymous said...

When someone writes an piece of writing he/she maintains the thought of
a user in his/her mind that how a user can know it. Therefore that's why this article is perfect. Thanks!

Here is my web page ... losing weight fast

Anonymous said...

Its like you read my mind! You appear to know so much about this, like you wrote the book in it or something.
I think that you could do with some pics to drive the message home a little bit, but
instead of that, this is fantastic blog. An excellent read.

I will definitely be back.

Feel free to visit my homepage http://genf20reviews0.wordpress.com/2013/04/26/significant-elements-for-genf20-plus-the-options

Anonymous said...

Wow! After all I got a weblog from where I know how to in fact take helpful data concerning my study and knowledge.



Feel free to surf to my blog post ... best volume pills

Anonymous said...

Hi there, I want to subscribe for this blog to get most recent updates, so where can i do
it please help out.

my webpage :: solseeds.com

Anonymous said...

Hey I know this is off topic but I was wondering if you knew of any widgets I could add to my blog that automatically tweet
my newest twitter updates. I've been looking for a plug-in like this for quite some time and was hoping maybe you would have some experience with something like this. Please let me know if you run into anything. I truly enjoy reading your blog and I look forward to your new updates.

Feel free to visit my web-site: buy provillus

Anonymous said...

I'm extremely inspired together with your writing skills as well as with the structure in your blog. Is this a paid subject or did you modify it yourself? Either way stay up the excellent quality writing, it is uncommon to peer a nice weblog like this one today..

Also visit my weblog: alteril

Anonymous said...

Ahaa, its pleasant discussion regarding this paragraph here at this web site, I have read all that, so
at this time me also commenting here.

Here is my web-site; volume enhancers

Anonymous said...

I'll right away seize your rss feed as I can't to find your
e-mail subscription link or e-newsletter service.
Do you have any? Please let me understand so that I could subscribe.
Thanks.

Also visit my webpage; www.spzawada.pl

Anonymous said...

It's a pity you don't have a donate button! I'd without a doubt donate to this fantastic blog! I suppose for now i'll settle for bookmarking
and adding your RSS feed to my Google account. I look forward to new updates
and will talk about this blog with my Facebook group.
Talk soon!

Here is my page fairplay.ir

Anonymous said...

An intriguing discussion is definitely worth comment.
I think that you ought to publish more on this subject matter, it
might not be a taboo subject but usually people do not talk about these subjects.

To the next! Best wishes!!

My site; virility ex

Anonymous said...

I couldn't refrain from commenting. Exceptionally well written!

Also visit my blog post ... eazol review

Anonymous said...

I enjoy what you guys are up too. This kind of clever work and exposure!
Keep up the amazing works guys I've you guys to blogroll.

Here is my webpage; Total Curve

Anonymous said...

Normally I don't learn post on blogs, however I wish to say that this write-up very compelled me to check out and do so! Your writing style has been amazed me. Thanks, very great post.

Also visit my page zetaclear.beep.com

Anonymous said...

I think the admin of this website is truly working hard in favor of his
web site, because here every information is quality based stuff.


Feel free to visit my web page; hgh energizer

Anonymous said...

Greetings! I've been reading your blog for a long time now and finally got the bravery to go ahead and give you a shout out from Austin Tx! Just wanted to mention keep up the great job!

my web site - hgh energizer review

Anonymous said...

I'll immediately grab your rss as I can not in finding your e-mail subscription hyperlink or e-newsletter service. Do you have any? Please allow me understand so that I could subscribe. Thanks.

My blog :: volumepill

Anonymous said...

Why visitors still make use of to read news papers when in this technological world the
whole thing is presented on web?

Have a look at my weblog :: phenix option

Anonymous said...

I'm really inspired along with your writing talents as smartly as with the structure for your blog. Is that this a paid subject or did you customize it yourself? Anyway keep up the excellent quality writing, it's uncommon
to peer a great weblog like this one these days..

Also visit my web-site :: phenix option

Anonymous said...

I'm gone to convey my little brother, that he should also visit this weblog on regular basis to obtain updated from latest news update.

Feel free to visit my website :: devis en ligne fenetre pvc

Anonymous said...

It is thе best time to make some ρlans for the future anԁ it іs timе to be happу.
I have read thіѕ ρost and if I coulԁ I wish to ѕuggeѕt you feω interesting thіngs or aԁvice.
Perhаps yοu cοuld ωrіte next articlеs referring to this artіcle.
I wish to read even more things abοut it!

Feel free to surf to my weblog; devis porte de garage sectionnelle motorisée

Unknown said...

nike air max, gucci outlet, louboutin pas cher, ralph lauren pas cher, louis vuitton outlet, cheap oakley sunglasses, ray ban sunglasses, chanel handbags, ray ban sunglasses, polo ralph lauren outlet, prada outlet, louis vuitton, kate spade outlet, jordan shoes, tiffany jewelry, air jordan pas cher, polo ralph lauren outlet, nike air max, louis vuitton, air max, louboutin shoes, nike roshe run, ugg boots, replica watches, tory burch outlet, longchamp, replica watches, tiffany and co, oakley sunglasses, burberry, ugg boots, michael kors, louis vuitton outlet, nike free, christian louboutin outlet, longchamp pas cher, longchamp outlet, oakley sunglasses, oakley sunglasses, nike free, nike outlet, louis vuitton, prada handbags, oakley sunglasses, louboutin, uggs on sale, ray ban sunglasses, longchamp outlet, louboutin outlet, sac longchamp

Unknown said...

michael kors, michael kors outlet, true religion jeans, vans pas cher, true religion outlet, hollister, hermes, abercrombie and fitch, michael kors outlet, nike air max, lacoste pas cher, converse pas cher, coach outlet, kate spade handbags, true religion jeans, vanessa bruno, ray ban pas cher, burberry, ugg boots, nike air max, hogan, nike blazer, ralph lauren uk, hollister pas cher, michael kors, tn pas cher, new balance pas cher, sac guess, north face, nike free run uk, true religion jeans, coach outlet, lululemon, michael kors outlet, nike roshe, air force, replica handbags, michael kors outlet, ugg boots, michael kors, michael kors outlet, ray ban uk, nike air max, timberland, oakley pas cher, michael kors, burberry outlet online, north face, coach purses, mulberry

Unknown said...

gucci, wedding dresses, oakley, nfl jerseys, p90x workout, north face outlet, babyliss, new balance, celine handbags, baseball bats, hollister, converse outlet, herve leger, timberland boots, louboutin, instyler, longchamp, vans, lululemon, insanity workout, mont blanc, hollister, reebok shoes, chi flat iron, soccer jerseys, mac cosmetics, nike air max, north face outlet, ralph lauren, ray ban, jimmy choo shoes, ferragamo shoes, nike roshe, ghd, giuseppe zanotti, nike air max, mcm handbags, lancel, valentino shoes, abercrombie and fitch, beats by dre, asics running shoes, nike huarache, soccer shoes, birkin bag, nike trainers, hollister, bottega veneta, iphone cases, vans shoes

sona said...

ارخص شركة خدمات بالرياض _ جودا كلين 0552398100

مهندس فحص فلل بالرياض
شركة فحص فلل بالرياض
شركة تنظيف خزانات بالرياض
شركة كشف تسربات مياه بالرياض
شركة تنظيف فلل بالرياض
شركة عزل حمامات ومطابخ بالرياض
لحام خزانات بالرياض
شركة كشف تسربات الغاز بالدمام
شركة عزل فوم بالرياض

شركة رواد الحرمين said...

بموقع مؤسسة الحرمــين فخدماتنا ليس لها بديل واسعارنا ليس لها مثيل ،ولدينا فريق عمل يتصل مع العملاء على جسور الثقه
شركه تنظيف منازل بالجبيل
والصدق والامانه فى العمل ، وهدفنا هو ارضاؤك وراحتك ، لا تقلق ونحن معك

شركه عزل فوم بالجبيل
لا تجهد نفسك ونحن تحت امرك ورهن اشارتك .
أبرز خدمات مؤسسة الحرمــين للمقاولات العامة بالدمام والرياض

شركه عزل فوم بالدمام


شركه عزل اسطح بالاحساء



شركه كشف تسربات المياه بالاحساء



يارا said...

تركيب اثاث ايكيا بالمدينة المنورة
تركيب اثاث ايكيا بجدة
تركيب دواليب بالمدينة المنورة
تركيب غرف النوم بجدة
تركيب غرف نوم بالمدينة المنورة
تركيب مطابخ
تركيب مطابخ بالمدينة المنورة

Mai said...

المغربي
تنسيق حدائق السطح بالفجيرة
ديكورات حدائق الاسطح بالفجيرة
خدمات الفجيرة

menna said...

شركة تعقيم وتطهير دبى
شركات تعقيم ضد كورونا في دبى

خدمات منزلية said...

شقق بالخبر
خدمة تنظيف منازل
فلل بالخبر
شركات تنظيف خزانات المياه

my house said...

9a replica bags replica bags vuitton replica bags online uae

Unknown said...

check out here Bonuses see this site Continued browse around this web-site Get More Information

Unknown said...

k6a51c7q82 t5i74n2k49 p3t36q6g45 f6k56h5w06 o5e53s5z56 k6z39q5y61