This is kind of long, but bear with me. I wrote to Sen. Lautenbaugh(an Attorney) this morning about my concerns with AM835. He was not in the office today and referred me to his legal council. The following is our conversation on the subject.
I thought that the NFOA membership would be interested in an attorney's legal view(for what it's worth) of the wording and intent of AM835, especially pertaining to Omaha's ordinances.
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Senator Lautenbaugh,
I have a few questions for you. I'd write to my Senator, Beau McCoy, but after no response to 4 emails I have sent to him since this session started, I have given up on expecting anything from him. Very disappointing.
Anyway, concerning AM835, it says on the bottom of page 16 to page 17(bold emphasis is mine):
Sec. 5. Cities and villages shall not have the power
27 to regulate the ownership, possession, or transportation of a
concealed handgun as authorized under the Concealed 1 Handgun Permit
2 Act, except as expressly provided by state law, and any existing
3 ordinances, permits, or regulations regulating the ownership,
4 possession, or transportation of concealed handguns are declared
5 null and void.
Then, from Omaha city ordinance codes:
Sec. 20-200. Permit required for purchasing or renting firearm.
It shall be unlawful for any person to sell or rent a concealable firearm to any person who has not obtained a written permit from the chief of police as provided for in this article.
(Code 1980, ? 20-200)
DIVISION 2. FIREARM REGISTRATION
Sec. 20-251. Required.
(a) It shall be unlawful for any person to own, have possession of, or maintain control over any concealable firearm which has not been registered to said person with the chief of police in accordance with this division, except when such possession or control is with the knowledge and express consent of the person in whose name such concealable firearm is registered.
(b) A corporation, including a body corporate created by Nebraska statute, may register a concealable firearm in its corporate name. However, the corporation may consent to a person possessing or controlling the corporation's registered concealable firearm only if that person:
(1) Is a part-time or full-time employee of the corporation;
(2) Is acting within the scope of his or her employment with the corporation; and,
(3) Possesses a current identification card issued pursuant to section 20-208 upon satisfaction of the requirements of section 20-207.
(Code 1980, ? 20-251; Ord. No. 36045, ? 1, 9-24-02)
So, my questions for you are:
Can "concealed" equal "concealable" when it comes to AM835?
Will this amendment make Omaha's "permit" to purchase a concealable firearm null and void?
Does AM835 need to include the term "registration" to be effective?
Will a person that does not live in Omaha city limits have to register their handgun to carry it concealed in Omaha(as is currently required)?
The wording of this amendment seems to be geared only towards a handgun that is "concealed", not one that is "concealable".
If you could shed some light on this for myself and the other members of the NFOA, we would be very grateful.
Thanks for your time and attention,
Rick
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Rick--
I'm out today, so I asked my Legis. aide to figure this out. Also, Beau's a good guy, a good senator, and a reliable vote-- I know he'll be in touch to make this right.
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Rick,
My name is Brent and I am Senator Lautenbaugh?s legal counsel. He has asked me to review your questions.
First, the simplest legal analysis would be that concealable does not equal concealed. BUT, that is not necessarily a fatal flaw, or cause for concern. A ?concealable firearm? by very definition, would be a firearm that could be easily hidden upon one?s person without indication of it?s possession, quite simply: a handgun; as a rifle or other larger firearm would essentially be unconcealable on one?s person (under normal circumstances).
The amendment directly references ?handgun? which being a concealable firearm would allow the amendment to apply to Omaha?s law.
Second, Omaha?s permit to purchase (as well as permits to own) firearms would still be in effect. 430 and AM 835 only apply to how CCW permits are enforced.
Third, I may have misread the question, but I do not see why you would feel the need to include the term ?registration? in the amendment. You always have, and will continue to have, to register any guns you own (concealed carry or otherwise) in accordance with state and local laws. LB 430 does not change that. It deals strictly with the issue of CCW.
Finally, pending further research into the state statutes, and knowing LB 430?s intent to standardize CCW permits across the state, the intent of 430 and AM 835 can be clearly construed to pre-empt the requirement of Omaha registration. Again, AM 835 states ?any existing ordinances, permits or regulations regulating the ownership, possession, or transportation of concealed handguns are declared null and void? (emphasis mine). Thus, on its face, LB430 (and AM835) would undo that Omaha requirement so long as the person carrying concealed is in compliance with the Concealed Handgun Permit Act (LB 430).
I hope this helped clarify some things. It would be difficult for a judge in any hypothetical court challenge by the cities to read 430 differently than the interpretation stated. It is clear in it?s intent and purpose. If you have any further questions/clarifications, please let me know.
Brent Smoyer, JD
Legal Counsel
Rules Committee
Office of Senator Scott Lautenbaugh
State Capitol Room #1021
(402) 471-2618
bsmoyer@leg.ne.gov
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Brent,
Thanks for your reply. My reference to "registration" is regarding the Omaha ordinances. Omaha is the only city in Nebraska that has any "registration" requirement for any firearm(that I am aware of). There is no state-wide registration requirement of firearms.
In the Omaha ordinance section 20-200, it is called a permit to purchase a handgun. Then in section 20-251, this same procedure is called a handgun registration, thus my concern for the term "registration" not being included in AM835.
I would say that one of the purposes of Omaha's permit/registration IS "regulating the ownership, possession, or transportation of concealed handguns", and as such should be declared null and void as prescribed in AM835.
If I understand this interpretation correctly from the way you are describing it, if a person had a Concealed Handgun Permit, that person would not need to follow the Omaha permit/registration for purchase or possession, but if they did not have a CHP, they would need to follow Omaha's permit/registration requirement.
I'm just trying to get this wording and intent clarified as it is a major sticking point for many CHP holders that live near Omaha, but not in the city limits. We are unwilling to register our handguns and pay a $10 fee to a city that we do not live in. We should not have to do so in order to protect ourselves as we can in the rest of the state.
Thanks for your help,
Rick
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In the simplest terms, if you live in Omaha?s city limits, you will be required to register any firearms you own, whether for CC or not. If you live outside the city limits (and do not purchase your weapons within the city limits) then under AM 835 and LB 430 in general you should not have to have such registration. The Omaha ordinance is recognized as having a primary purpose of regulating all firearms, and thus is not (according to intent and function) encompassed as regulation of concealed handguns because it merely touches on the subject, rather than directly addresses it. Though essentially, again as long as you don?t live or buy your guns in Omaha, you should not have to be subject to Omaha?s ordinance if LB 430 passes.
-Brent
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Brent,
Thanks again for your help. This bill does not go as far as I and many others would like, but I suppose it is better than the current mess. I'm sure there will be more changes and amendments next week after some floor debate as well.
Can I get your permission to post this correspondence on our web-forum?
Rick
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No Problem Rick. Glad to help.
Of course those of us who support gun rights know that 430 doesn?t go as far as we?d like, but it IS a start and gives standards to build upon. Yes, there will be more amendments during floor debate, unfortunately, not all of them will be good. I think it?s important to remain vigilant that any amendments that would degrade LB 430 are soundly defeated. I know Senators Lautenbaugh, Christensen, Fulton, McCoy and others will all work hard to ensure LB 430 gets passed without being weakened.
Feel free to share this with your forum, and please remind your members to pay attention to the debate and contact their individual senators regarding any concerns they may have.
Take care,
-Brent
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I guess we'll see what happens next week. Please write, email, and/or call your senators!
