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.

Tuesday, April 11, 2006

How many tax dollars will be wasted because LB454 is bad law??

The passage of LB454 has raised a firestorm of debate whether Representitives of Political Subdivisions in Nebraska have the "Home Rule power" to "opt out" of or regulate concealed carry. The prevailing thought is that the Representitives Political Subdivisions in Nebraska will be able to either ban or regulate CCW in their jurisdictions before State Representitives can enact a state wide pre-emption. Assuming of course that they would be inclined to do so.
It appears in all likelyhood that before the Unicamerals next session (Spring of 2007) Nebraska will become a patchwork of areas where CCW will be banned by local ordinances, a situation that was ongoing in our neighboring state of Colorado a few years ago. A situation that resulted in a state wide pre-emption that includes the following language;

(1) The general assembly hereby finds that: (a) A person carrying a weapon in a private automobile or other Private means of conveyance for hunting or for lawful protection of such Person's or another's person or property,..(c), may tend to travel within a county, city and county, or municipal jurisdiction or in or through different County, city and county, and municipal jurisdictions, en route to the Person's destination; (b) Inconsistent laws exist in local jurisdictions with regard to the Circumstances under which weapons may be carried in automobiles and Other private means of conveyance;(c) This inconsistency creates a confusing patchwork of laws that Unfairly subjects a person who lawfully travels with a weapon in or through One jurisdiction to criminal penalties because he or she travels within a jurisdiction or into or through another jurisdiction; (d) This inconsistency places citizens in the position of not knowing When they may be violating local laws while traveling within a jurisdiction or in, through, or between different jurisdictions, and Therefore being unable to avoid committing a crime.

(2) (a)Based on the findings specified in subsection (1) of this Section, the general assembly concludes that the carrying of weapons in Private automobiles or other private means of conveyance for hunting or For lawful protection of a person's or another's person or property while Traveling into, or through, or within, a municipal, county, or city and County jurisdiction, regardless of the number of times the person stops in A jurisdiction, is a matter of statewide concern and is not an offense. (b) Notwithstanding any other provision of law, no municipality, County, or city and county shall have the authority to enact or enforce any Ordinance or resolution that would restrict a person's ability to travel with A weapon in a private automobile or other private means of conveyance FOR HUNTING OR for lawful protection of a person's or another's person or Property while traveling into, or through, or within, a municipal, county, Or city and county jurisdiction, regardless of the number of times the person Stops in a jurisdiction.

It is doubtful that Nebraska will be able to avoid the same fate. In the next several months any number of localities will enact or attempt to enact ordinances that will prohibit concealed carry creating the patchwork that has existed in other states. It is also unlikely that the Senators will do anything to correct the problem in the next session of the Unicameral either. Since the law goes into effect only dys before the 2007 session starts many of the Senators will likely take the position that enough time has not passed to get a good measure of how the law will turn out.

Some Cities already have local ordinances on the books prohibiting the carry of a concealed weapon. Omaha is one of those cities and as rumor has it one of the coucilmen is planning on introducing an ordinance that will make it legal for those with permits to carry in Omaha. Whether it passes by a significant majority or not, it surely stands to be veto'd by the Mayor. There are also many smaller communities in the state that are considering a "opt out ordinance" as well.
All of this hyperbole is a result of Nebraska Statutes that established a Home Rule power allowing Political Subdivisions to regulate the carrying of concealed weapons by local ordinance.

As has been noted previously on these pages until 1988 the Constitution of the state of Nebraska had no delegation of any power to the elected representitives to regulate firearms. This is important for several reasons; The first being that the Constitution is the hallmark on which all legitimate laws are to be passed, Representitives in the Legislature are bound by oath to enact laws that are not contrary to the Constitution, and Reprsentitives of the Legislature certainly cannot delegate a power to Representitives of a Political Subdivision that they themselves have not been given by the people they have been elected to represent.

In the late 1980's several concerned citizens crafted a petition to change the Constitution. When it was voted for by a majority of Nebraskans that voted in in that years election the "Right to Keep and Bear Arms" officially became part of the Constitution for all lawful purposes and it fobade the state and it's Political Sudubdivisions from denying and/or infringing the right.

Political Subdivisons that have already enacted CCW bans have done so under the auspicies of Home Rule. This is the same alleged authority that all the other communities that pass an anti CCW ordinance will use. Should the State Representitives pass a pre-emption law, I am sure there will be a slew of very costly and time consuming law suits by any number of Political Subdivisions. Think it unlikely? It has happened in other states.

Sadly what ever happens is going to cost a lot of tax dollars. Either the State will be filing suits against the cities to enforce the pre-emption or the Political Subdivions will be suing the state for violating their powers under the Home Rule statutes.

What needs to be done is to have the portions of the Home Rule statutes that give power to Political Subdivisions to ban concealed carry declared unconstitutional.

The truth is that they are unconstitutional, because Representatives of the state cannot confer to Representitives of a Political Subdivision powers that they themselves do not have.


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