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.

Thursday, September 09, 2004

The City of Lincoln is not in compliance with the statutes and Constitution of the State of Nebraska

Home Rule Explained

Cities of a certain size in the State of Nebraska have what is called 'Home Rule". This allows the elected or appointed personages in those cities to create local ordinances specific to their situation, with out state legislative approval. It must be noted, however that cities governing under a home rule charter, and any ordinaces passed are subject to the Constitution and laws of the state.

Lincoln, Nebraska has a Home Rule Charter and a population of over 100,000 people and not more than 300,000 and is classified as a city of the Primary Class. The State Statutes that confer on Lincoln the authority to function as a political subdivision of the state are 15-101 to 15-1307. These laws govern how the city does business with the State, other political subdivisions and persons.

Case law for Home Rule Charters is specific in that;

A municipal corporation has only such powers as are expressly conferred upon it in matters of strictly municipal concern, and in cities which adopt a home rule charter state legislation is not excluded on subjects pertaining to state affairs. State ex rel. Hunter v. The Araho, 137 Neb. 389, 289 N.W. 545 (1940).

NOTE: State after state has held that regulation of firearms is a state wide concern, and had in place or passed laws pre-empting local regulation on the subject. This has not been done in Nebraska, it is not necessary. the state had been given the power to make firearms regulation nor can it confer it on political subdivisions.

A city may put into its home rule charter any provisions that it deems proper so long as they do not run contrary to the Constitution or to any general statute. Eppley Hotels Co. v. City of Lincoln, 133 Neb. 550, 276 N.W. 196 (1937).

NOTE: By passing laws in areas that the city has not been granted power, there is a distinct and identifiable action contrary to the Constitution and any number of general statutes.

Purpose of home rule charter provisions of Constitution is to render cities as nearly independent as possible of state legislation, subject to the general public policy of the state. State ex rel. Fischer v. City of Lincoln, 137 Neb. 97, 288 N.W. 499 (1939).

NOTE: General Public Policy of the state, with the exception of the previously addressed unconstitutional, Concealed carry law (28-1202) and the Permit to Purchase Property law, has been (thankfully) hands off firearms issues in regards to law abiding citizens.

In previous writings I have detailed the Constitution and the Statutes of the state of Nebraska and how the legislators have violated their oaths of office in the creation of Statutes for which they had not been granted power to enact.

The City

This dissertation examines the city ordinances that have been enacted by the City Councel of Lincoln, Nebraska in violation of the Constitution and Statute.

Local laws enforceable only within the defined boundries of a home rule city are called ordinances. The section of Lincoln ordinances that deal with firearms, is entitled Weapons and, can be found in Chapter 9.36 of the Municipal code.

Do not have the power
As detailed previously the Representives of State Government and its political subdivisions have ONLY those powers granted to them by the People of the State of Nebraska. These powers are documented in the Constitution. Nowhere is there or has there been any power to regulate firearms granted to the State Legislators. Case law on CI-26 and the legislature exercising powers they have not bee given is quite specific:

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).

Hence forth These same Legislators CAN NOT confer powers to a political subdivision that they themselves DO NOT HAVE.

Why the Lincoln Stautes are uncontstitutional

In addittion to CI-1 created by Initiative Measure No. 403 and CI-26, Statutes 15-255 and 15-263 apply to the legality of any ordinance that the City Councel enacts.

Statute 15-255 Public safety; measures to protect, is part of the statute that gives the city of Lincoln its powers to act in making its own ordinances. According to 15-255 the only power given to Lincoln concerning firearms is the power to PROHIBIT carrying of concealed weapons. That is it period. That is all the state has given power to the city councel to do. Of course it is a moot point, as has already been established that the state did not have the power to enact 28-1202 (Concealed carry law).

Even given that the city "could legally" ban concealed firerarms, that is the only thing they would be empowered to do. Any other law they made would have to be declared unconstitutional if it did not apply to the carrying of a concealed firearm.

Statute 15-263 General welfare; ordinances to insure; powers; enforcement; penalties; imposition; Allows the city to make ordinances not inconsistant with the Constitution ...... in addition to special powers granted by law. In plain English here, if the constitution does not give them the power to do something then they cannot do it. Not hard to understand, unless you are a politician I guess. All ordinances passed by the Lincoln city councel and signed into law by the Mayor MUST be consistant with the Constitution in order to be valid. The phrase "in addittion to special powers granted by law" means that the city must have been granted a special power by law in order to create an ordinance regulating something. There just is no place in the Constitution or Statutes that grants power to the city to regulate weapons beyond the (already proven illegal) power to ban concealed carry".

NOTE: The is one other power granted the city concerning firearms and that is, the city may regulate the discharge of firearms. That however is not important to this discussion.

As noted the applicable Lincoln City ordinance chapter is numered 9.36 and titled Weapons. The first ordinance is 9.36.010 and makes it a crime to discharge a firearm within the corporate limits. The second ordinance is numbered 9.36.020 and makes it a crime to furnish a firearm to a minor, with exceptions for training and sporting purposes. 9.36.025 requires any business that sells firearms or ammunition to keep it secured while on display. The ordinances to this point are pretty benign and are probably Unconstitutional as well.

Gun Registration
Yes Lincoln has gun registration. Handgun registration to be exact. Ordinance number 9.36.030 States that anyone person or business selling a handgun MUST report the sale of that handgun to the Police Department using a prescribed form PROVIDED by the Police Department. This must be done on the day of the sale. Rifles and shotguns of a type commonly used for hunting are excempt from this reporting requirement. This ordinance, given everything that has been presented, is a diliberate, and probably willfull disregard for the Constitution, and the statutes that grant power to Lincoln as a Primary Class city. The State legislature has never ever given the city power to enact this type of ordinance. EVER.

Switch Blades and Toy Guns
The next ordinance numbered 9.36.040 makes it illegal to buy, sell or trade a switch blade in the city. It is quite possible under current state law that this statute is illegal as well, but it won't be addressed here, as it is not a firearm. Ordinance 9.36.050 makes it a crime to discharge BB guns, toy guns and slingshot within the corporate city limits. 9.36.060 makes it illegal to carry a toy gun around town and 9.36.070 makes it a crime to furnish a Juvinile with a toy gun and/or slingshot.

Cops get a free pass and explosives movements
9.36.080 bestows the expected and usual exceptions on cops and/or other good guys. 9.36.090 relates to the transportation of explosives in and around the city.

Chief says you can't own a gun, in his city, if you have been convicted of certain midemeanors in the last 10 years.
9.36.100 wa just enacted last April 7th 2003. There can be no doubt as to the unconstitutioanality of this ordinance what so ever. This little infringement is the brain child of Chief Tom Casady himself. At his urging and brow beating the City Councel passed this ordinance that bans an individual from posessing a firearm for ten years, if they have been convicted of certain MISDEMEANOR crimes. The crimes listed to qualify a person to be subject to the 10 year ban are inded serious crimes, but for the most part they are misdemeanors and under the Constitution of the State of Nebraska and all apllicable statutes the city did not have the authority to enact such a law. CI-1 states that the state nor its political subdivisions shall DENY or INFRINGE the right to keep and bear arms. Note when reading it that it has the standard military/cop exemption. Its ok for a cop to have been convicted of one of those crimes listed and still carry a gun, but if your an average citizen forget it.

NOTE: Why is it necessary for a Police Officer to have an exemption from this law? If an officer is guilty of some of these crimes he probably shouldn't be an Officer any more.

Get your vehicle stolen and go to jail says Chief Casady

And now the best for almost last. Ordinance 9.36110 makes it a crime to leave a firearm in your vehicle for more than 24 hours. Tom Casady shoved this one down the throats of the citizens he has sworn to serve and protect too. He pushed this one through at the same time as he did his 10 year posession ban. His reason for this one? Simple, he claims that there have been to many vehicles stolen with firearms in them and that presents a danger to his officers. The real reason? Someone steals your car that you left a firearm in. It also contains a firearm that you left in the trunk so you report the firearm as well. You are then charged with the local crime of leaving a gun in your car and Chief Casady can claim, on paper, to have made at least one arrest in the case. Makes his Department look good when he documents an arrest in a stolen vehicle crime.

NOTE: Just got back from the range and ran in the house real quick to use the potty and while your in there your car gets stolen? Guess what you get a ticket and will have to convince a judge that it hadn't been there for more than 24 hours. Get the Picture?

The very last ordinance dealing the weapons section is 9.36.120. This law simply defines what a firearm is pertaining to city ordinance.

Lincoln is not unique, except in the requirement to inform the Police of all handgun transfers. Several other cities have crafted their own local laws as well. It should be readily understandable for anyone, by now, to see that the provisions of Constitutional provisions CI-1 (shall not be denied or infringed) and CI-26 (can not exercise the Doctine of Police Power for a power not granted), along with the applicable Statutes, render any and all of these local laws invalid.

Even under the aspicies of "Home Rule Authority" and the General welfare provisions of the Primary Class Statute, the city of Lincoln has not ever been granted the power to enact the firearms legislation that is on the books in the Capital City.

Given the evidence presented, each individual has to decide for themselves. Whether a person likes or dislikes firearms is not relevant. The point is, based on the evidence, over a period of time, has the Lincoln Mayor, City Councel, local/district judges and the Police Department violated the Consitution, the statutes and their oaths of office by enacting and enforcing these ordinances?

Previous posts:

The Truth

A Challenge

They don't understand