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, March 10, 2006

Good news of sorts for LB 454 Supporters

UPDATE 3/11 14:30: The Lincoln Journal Star weighs in on the Pre-emtion issue, as does Omaha's Channel 6 WOWTV.

The Nebraska State legislature, aka; The Unicameral, handed Ernie Chambers an other defeat this morning. A 33 vote for cloture passed Lb 454 out of Select File and sent it to it's final reading. That is if Brashear will put it back on the agenda. I am guessing he probably will.

This means however that it may be enacted into law without statewide pre-emtion, meaning that the political subdivisions could enact local ordinances to prevent carrying inside city limits. Talk around is the Municipalities could, if LB 454 is passed as is, enact their own permit systems make it tougher to carry in city limits or just outright ban it all together.

Personally I don't know how all of this will work if LB 454 is passed into law. I have written on most of these issues in the past specifically what the Political Subdivisions can and can't do under the State Constitution.

Refresher:

Public Servants only have those powers given them by the people they represent, that are enumerated in the Constitution.

In the original Constitution there were no powers given to regulate firearms.

In the early 1900's the State Supreme Court held that a political entity CANNOT envoke the Doctrine of Police Power over powers that they have not been granted.

Despite that the Legislature enacted Statute 28-1202 (banning the carry of a concealed weapon) and gave power to Political Subdivisions to ban the carry of concealed weapons.

In 1988 the people of Nebraska voted by ballot at General Election to enact Initiative Measure No. 403, that among other things took away the power to infringe or deny the right to own firearms.

In 1990 the Unicameral spit in the faces of the people that elected them by passing the Handgun Permit to Purchase law. A Personal property aquisition law that definately infringes AND Denies the right to own firearms.

Addittionally since that time the Political Subdivisions of Omaha, Lincoln and others have passed ordinances that infringe on a Citizen of Nebraska's Right to bear arms and in some cases deny such right.

The crutch that these Municipalities lean on for enactment of these unconstitutional ordinances is their supposed "Home Rule Authority".

I have covered that in the past too. Under "Home Rule Authority" a Political Subdivision cannot enact an ordinaces that are repugnant to or inconsistant with the Constitution.

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).

If Lb 454 by some miracle does pass without statewide pre-emtion I anticipate that most if not all of the State's major population centers will be crafting City Ordinances to "opt out" of the law and either ban concealed carry outright or make it so difficult it will be impossible to get a permit in those areas let alone carry if a person had one.

The bottom line here is that our elected officials from the state house on down have routinely disregarded the Nebraska State Constitution:

They (Unicameral) enacted a prohibition on concealed carry, when they did not have the power to do so and the Supreme Court had ruled that it could not be done under the Doctrine of Police Power.

They (Unicameral) gave a power to the Political Subdivisions they they themselves did not have to give. Specifically the power to ban concealed carry.

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).)

Since 1988 the Municipalities, mainly Omaha and Lincoln have adopted ordinces that go beyond the only supposed power they do have in regards to firearms by enacting laws contrary to Initiative Mearsure No. 403 that infringe and/or deny the Citizens the Right to keep and bear
arms.

Since 1988 the Unicameral has enacted the a permit system to purchase handguns and is currently attempting to enact another concealed carry law that further infringes and/or denies the Citizens of Nebraska the Right to keep and bear arms.

Read it for yourself;

CI-1
Statement of rights.

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.

Source:
Neb. Const. art. I, sec. 1 (1875);
Amended 1988, Initiative Measure No. 403.


As I final note I would like to point out that CI-1 specifically states that the right to keep and bear arms is an inherent and inalienable right. CI-1 goes on to affirm that the right applies to all other lawfull purposes.

CONCEALED CARRY IS A LAWFUL PURPOSE.

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