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.

Monday, April 17, 2006

Sec. 15. (1) (a) A permit holder may carry a concealed handgun anywhere in Nebraska, ......

I was just reading through the (supossed) final version of LB454 and came across these interesting bits;

Sec. 10. (1) A permit to carry a concealed handgun is valid throughout the state ........

Sec. 15. (1) (a) A permit holder may carry a concealed handgun anywhere in Nebraska, ......

There is possibly some complex legal issues here and the "Home Rule Authority" may still conceivably apply, but a cursory reading of the statute (LB454) would indicate that Representitives of Political Subdivisions cannot enact a ban on CCW as the Senators in the Unicameral have legislated the permits are valid statewide and that a permit holder can carry a concealed handgun anywhere in Nebraska.
The major contention by those opposing CCW is going to be whether under "Home Rule Authority" Council Persons will be able to enact ordinances that forbid something the state has made legal.

There is only one Metropolitan class city in the state; Omaha (defined as a city with a population over 300,000)

There is probaly only one Primary class city in the state; Lincoln (defined as a city with a population over 100,000 but less than 300,000)

There are several cities in the first class; (defined as a city with a population of more than 5,000 but less than 100,000)

To my research and knowledge Cities of smaller sizes do not have the authority for Home Rule.

Metropolitan Class Cities home rule authority is found in Section 14 of the statutes;

Section 14-102.01

Cities of the metropolitan class; ordinances, bylaws, rules, regulations, and resolutions; powers.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, as may be necessary or expedient,........


Note that it is explicit in that a Metropolitan class city cannot make local laws that are "inconsistent with the general laws of the state," Since Omaha already has a CCW ban in it's Ordinances prior to the enactment of LB454 it could conceiveably be allowed to stand.

Primary and the rest of the lower class cities with Home Rule Authority may not be in so great a shape. The Statutes that apply in this case are;

Section 15-101
Cities of the primary class, defined; population required.

All cities having more than one hundred thousand and less than three hundred thousand inhabitants shall be known as cities of the primary class. The population of a city of the primary class shall consist of the people residing within the territorial boundaries of such city and the residents of any territory duly and properly annexed to such city.

Annotations:

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).

In matters relating exclusively to local and municipal affairs, home rule charter prevails over conflicting provisions in statute. Pester v. City of Lincoln, 127 Neb. 440, 255 N.W. 923 (1934).

Home rule charter may not contravene Constitution or general statutes. Schroeder v. Zehrung, 108 Neb. 573, 188 N.W. 237 (1922).


By the inclusion of "a permit holder can carry a concealed handgun anywhere in Nebraska" in LB454 the Legislature may have negated Lincolns claim to "exclusively to local and municipal affairs".

Section 16-227

Riots; disorderly conduct; use of explosives; weapons; vagabonds; lights; bonfires; regulation.

A city of the first class may prevent and restrain riots, routs, noises, disturbances, breach of the peace or disorderly assemblies in any street, house or place in the city; regulate, punish, and prevent the discharge of firearms, rockets, powder, fireworks or any other dangerous combustible material in the streets, lots, grounds, and alleys or about or in the vicinity of any buildings; regulate, prevent, and punish the carrying of concealed weapons; .......


That is the quandry though; The Statutes that define the size classifications of the cities are specific in that local laws must not go against the Constitution or the General statutes. However in giving the cities "Home Rule" the statutes state that they "may regulate, prevent, and punish the carrying of concealed weapons".

A major sticking point may be the fact that LB454 does not go into effect until January 1st 2007. Before that date Lincoln and the rest of the Home Rule cities may be able to enact bans that could be upheld. The other side of that coin is that the day it was signed by the Governor it did become for all intents and purpose law. Any Ordinace passed after that date could be viewed as contravening the General Statutes.

I think the most appropriate tact to take now is that The Concealed Handgun Permit Act specifies that; A permit to carry a concealed handgun is valid throughout the state and; A permit holder may carry a concealed handgun anywhere in Nebraska and that even the statutes that give Political Subdivisions their Home Rule powers state that they (the cities) cannot enact ordinances that contravene the Constitution and/or the General Statutes.

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