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.

Wednesday, May 25, 2005

State (Vermont) V. Rosenthal V. Nebraska

In previous dissertations I have noted that Nebraska Constitutions CI-1 was meant to and does establish in Nebraska the same type of recognition for concealed carry that exists in Vermont. In this narrative I will point out the similarities between the two states and establish beyond a doubt that these similarities are intended and not a matter of coincidence.

In 1902 Andrew Rosenthal was arrested in Rutland, Vermont for carrying a concealed weapon in violation of City ordinance. His subsequent appeal and the resulting Vermont Supreme Court Decision in May of 1903 established what has been to this day the Concealed Carry Law in that state.

The Cliffs Notes version of the Vermont law is that; any person of legal age and not disabled by law from possessing a firearm may carry a concealed loaded firearm in the State of Vermont.

In 1988 at General Election a majority of the citizens of Nebraska voted in favor of Ballot Initiative No. 403. This purpose of this Initiative, as regarded by those I have spoken to that were involved in the process, was to create in Nebraska the same type of law for concealed carry that has existed in Vermont since the turn of the last Century.

The law in Vermont does not state the exact phrase used in the Cliff Notes version given above but there are several points in Vermont Law that result in the decision reached by the Supreme Court of the State of Vermont. These parts will be noted and compared to the appropriate section of Nebraska Law. The similarities are not a coincidence, they were INTENDED by those that drafted and shaped Ballot Initiative No. 403.

The first point is Article 1. of the Vermont state Constitution;

"That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety; therefore no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person's own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like."

Article CI-1 of the Nebraska state Constitution reads;

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, 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. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

Note that the first article of the Nebraska Constitution is even more specific in regards to firearms than Vermont.

Article 16. of the Vermont Constitution reads;

"That the people have a right to bear arms for the defense of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power."

That the framers of what is known as CI-1 (Nebraska Ballot initiative No. 403) incorporated Articles 1 and 16 of the Vermont Constitution should be obvious at this point.

The Vermont Court also cited several of Vermont’s Statutes in its decision. The gist of some of these statutes relate to making it crime to carry a weapon with the intent to do crime (4922), Carrying on school grounds (4923), unjustly pointing a firearm (4924) and 4925 creates a punishment for injuring someone with a firearm.

Further the Court noted that under Vermont law municipalities are forbidden from enacting ordinances that are; "repugnant to the Constitution or laws of this state."

Power to make the ordinance in question was not expressly given the council, and they had no power to make it, beyond what is given under the general clause above quoted. The people of the state have a right to bear arms for the defense of themselves and the state. Const. c. 1, art. 16."

In an examination of Nebraska’s Constitution one finds further similarities found in Vermont’s Constitution and laws;

Nebraska Constitution Article CXI-5 in establishing the concept of home rule says the same thing; local ordinances may; "be changed or amended as provided in Section 4 of this article, subject to the Constitution and laws of the state."

Nebraska Statutes also define what power Municipalities have in relation to the Constitution.

State statutes that provide for metropolitan (14-102.1) and primary class (15-101) cities also state respectively;

"Metropolitan- A city of the metropolitan class may make all such ordinances, bylaws, rules, regulations, and resolutions not inconsistent with the general laws of the state"

"Primary- 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."

Article CI-26 of the Nebraska Constitution states;

"This enumeration of rights shall not be construed to impair or deny others, retained by the people, and all powers not herein delegated, remain with the people."

The gist of this is any power not given to the state remains with the people, meaning if the constitution doesn't say they can then they specifically CANNOT enact a law in an area they have not been given power over.

It really should be obvious to this point that Constitutional amendment CI-1 was specifically modeled after the Constitutional Articles 1 and 16 of the Vermont Constitution. In addition there are too many other similarities between the Statutes of the two respective states to be a coincidence. The reasonable conclusion that must be drawn from this; is that the Framers of Initiative Measure No. 403 researched Vermonts Constituion and specifically the Court decision State V. Rosenthal before carefully crafting the petition language that a majority of the citizens of Nebraska voted for in 1988.


Anonymous said...

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Anonymous said...

Jag är imponerad! Verkligen informativ bloggpost om min vän. Jag ville bara kommentera och säga hålla uppe kvaliteten på arbetet.