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, September 17, 2004

Omaha, Nebraska's Municipal code violates the Constitution.

I know you have heard this part before
As previously noted in past discussions on firearms laws enacted by the state and it's political subdivision I have repeatedly cited CI-1 and CI- 26 as the controlling sections of the Constitution.

CI-1 commands that the neither the State nor any political shall infringe or deny the right to keep and bear arms.

CI-26 implicitly states that any powers not here in granted remain with the people and case law further tell the government representives that they CANNOT exercise the "Doctrine of Police Power" over a subject they have not been given power to regulate.

Concerning the "Home rule Authority" granted by CXI-5 case law is specific in regards to ordinances the city of Omaha may enact.

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).

This decision is explicit in ruling that Omaha only has only such powers granted it by the state and a home rule charter does not exclude state affairs.

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).

There is no legal way the city of Omaha, even with Home Rule, can exercise powers they have not been granted. This is not a minor point either. The Constitution, whether State or Federal, is the bedrock of government ANY violation MUST be taken seriously. Without it any given City in Nebraska could be it's own dictitorial fifedom. Laws or ordinances that controvine the Constitution are an affront to every citizen.

Omaha charter is subject to limits of Constitution and laws of state. World Realty Co. v. City of Omaha, 113 Neb. 396, 203 N.W. 574 (1925).

Omaha MUST to be in compliance with the Constitution and state statutes in every ordinance they enact. The courts have said it several times over, and it is plainly written in the Constitution and the Statutes themselves. If the representitives of ANY municipality enacts a local law that contravines either one they are violating their oath of Office.

Metropolitan Class City
Omaha does have "Home Rule Authority" and with a population of more than 300,000 it is the only Metropolitan Class City in the state. The statutes that apply to the Metropolitan Class city are statutes 14-101 through 14-2157 and were last addressed in 1992.

Addressing weapons 14-102 reads as follows; Concealed weapons, firearms, fireworks, explosives. (6) To punish and prevent the carrying of concealed weapons and the discharge of firearms, fireworks, or explosives of any description within the city;

That is the only firearms specific power that has been granted to the city of Omaha. It is surely based on 28-1202 and assuming that 28-1202 is constitutional, the ONLY ordinance Omaha can create is a punishment comensurate with carrying a concealed weapon. In reality the city can not even do that as the State had no constitutional basis for the legality of 28-1202 in the first place.

14-102 also states; Police regulation in general. (25) To make and enforce all police regulations for the good government, general welfare, health, safety, and security of the city and the citizens thereof in addition to the police powers expressly granted herein; and in the exercise of the police power, to pass all needful and proper ordinances and impose fines, forfeitures, penalties, and imprisonment at hard labor for the violation of any ordinance, and to provide for the recovery, collection, and enforcement thereof; and in default of payment to provide for confinement in the city or county prison, workhouse, or other place of confinement with or without hard labor as may be provided by ordinance;

That the city has available at it's disposal the "Doctrine of Police Power" is without question. It should be noted that the only police power expressly granted herein is the afore mentioned "punish and prevent the carrying of concealed weapons". A political subdivision is under the same disability as the state when it comes to CI-26 and the case law represented by it.

In 1967 the state enacted 14-102.01 that further defined what the city of Omaha may do as a "Home Rule" Metropolitan Class City. Essentially this statute expands on defines the powers given to a Metroplitan City with the caveat that all such ordinances, bylaws, rules, regulations, and resolutions not inconsistent with the general laws of the state

it has to be obvious by now that the Constitution and Statues of Nebraska plainly dictate that neither the state nor any political subdivision has the power to regulate firearms. Further that any and all ordinances enacted by the subdivisions must not contravine or be inconsistant with the constitution and/or statutes.

Omaha's Municipal Code
Omaha's ordinances concerning weapons are found in chapter 20 Article VII of the code. It is important to note that this Article opens with references to the applicable Statutes that justify the enactment of these ordinances. The first one has already been addresses earlier R.R.S 1943 14-102(6). The second is R.R.S. 1943 69-2401. This statute is the one that created the "permission to buy a concealable firearm law in 1991.

The city cites the law that says they only have the power to prevent and punish the carrying of concealed weapons to justify the entirety of their weapons laws.

As I have already addressed what powers city has or does not have in regards to the regulation of firearms, I will refrain from commenting specifically and just note some of the more critical Constitutional inconsistancies of the Omaha Municipal code.

All of the referenced "codes" are found in Chapter 20 Article VII of the code.

Sec. 20-191 defines a concealable firearm as having a barrel less than 18 inches in length.

Sec 20-195 makes it illegal to transport a long gun unloaded with only the bolt removed. The removal of the bolt from any such firearm or carrying the same in a holster type gun case without further breaking down such firearm shall not be deemed to be in compliance with the requirements of this section.

Sec 20-202 Commands dealers to notify the chief of police daily ont transactions. indicating the date of the transaction, a description of the firearm, .....and apparent deformities or peculiarities of the person with whom such transaction was had.

Sec 20-204, (federal law allows someone to posess a handgun at age 18) Makes posession by anyone under 21 a crime.

Sec 20-207 Creates a series of ordinances that require training and a police permission slip to be in posession of a concealable firearm anywhere in the city except a persons private property or business.

Sec 20-251 Creates the requirement for registration of concealable firearms in the city of Omaha. The Chief has seven days to decide and it is writen that he may take custody of the firearm for the duration of the background check. If you don't get the permit you don't get your firearm back.

Sec 20-256 provides that any person who's application for registration is denied has 10 days to provide proper registration or other lawful disposition. During this time the Chief SHALL maintain custody of the firearm. After 10 days it is considered an unregistered firearm and the chief may apply for a court order of confiscation.

There is more
There are more weapons ordinances in Section 20, but the ones noted here are the most glaringly and seriously agregious violations of the Constitution and Statutes as promulgated by the people of the state of Nebraska.

Based on my research and the legal information that, I have documented, I am convinced that most if not all of the state laws and political subdivision ordinances concerning firearms are unconstitutional are are there thereby invalid.

As an Individual you have to do your own research and formulate your own opinions, I can only offer these dissertations as a starting point.

No comments: