Military law- concealed carry permit- legal advice

[nvywife]

I am a military spouse. I completed all of the pieces for my permit, and was denied. I moved here about 100 days ago with my husband on military orders, we also have owned a house here since 28 May. With the military spouse relocation relief act, we were initially told this would not be an issue, however, my permit came back denied because of not being a resident for 180 days.
We looked through the actual legislation and found 2 pieces that support our case for contestation. (linked below)
What we are looking for is any advice, especially if someone has a legal background, in contesting this, as well as the constitutionality of the 180 day minimum residency. Basically with this law, I have to walk around with no means of self defense for 180 days if I want to be a "good citizen", when I have been basically "ordered" here as stated in his official military orders.

S.475 -- Military Spouses Residency Relief Act
http://thomas.loc.gov/cgi-bin/query/D?c111:4:./temp/~c111c1hUaX::

Servicemembers Civil Relief Act (SCRA)
http://usmilitary.about.com/library/milinfo/scra/bl511.htm
http://usmilitary.about.com/library/milinfo/scra/bl508.htm

Thank you!

[HuskerXDM]

I don't have any insight, but I wish you the best and hope you are able to get your permit ASAP!

[A-FIXER]

nvywife, I know the wait will unnerving but in nebr you have shown to have met the requirement of residency,  of have owned an house with an legal address status of residency by homeownership, and the abilty of receiving legal mail. Did you go in person to the Nebr State Patrol and show proof of home ownership? Just maybe you got a officer who did not know of your ownership home residency.

[A-FIXER]

Here is also a link to CCW of Nebraska, and maybe they can shed some light for you http://ccwnebraska.yuku.com/ .

[nvywife]

We did not bring a copy of our deed or homeowners... do you know if i could bring that to the patrol office after the denial or bring it to court at a contestation?

It looks like, though we aren't sure, that my husband will be granted based on the verbage because of the military status. But the military spouse relocation relief act (which we have found most troopers an other folks have no clue about) extends those rights to spouses who get moved around because of the military. I was originally told by a trooper to just get my Utah permit since I don't have to change my drivers license to NE, and with further research that would definitely be skirting the law.

[AAllen]

Unfortunatly the Military Spouses Residency Relief Act does not apply, state law dictates on licenses and permits for residency status.  This Act referse to the ability to keep residency in a state where one has lived in the past and maintains a residency for tax purposes.

There is a bill (LB138) that is dealing with residency requirements and this (the Military Spouse issue) would be a good ammendment to the bill.  If you could send me some more information I can see if there is anything we do to get this change made (does not help you but would help the next person in your situation), send to NeFirearms@gmail.com.

[wrenrj1]

Just for background, here's what the state CCW law states:

Current resident of the state of Nebraska having been a resident for at least the past one hundred eighty (180) days or a member of the United States Armed Forces stationed at a military installation in Nebraska pursuant to permanent duty station orders. Members of the United States Armed Forces so assigned may meet this requirement without waiting the one hundred eighty (180) days and are not excluded even if they maintain a residence in another state and claim that state for voting or tax purposes;

I agree.  This piece of the statute should be changed to include spouses.

[DanClrk51]

If I remember correctly this was part of LB 430? or LB 817? and the original wording would have included spouses and dependent family members but that language got dropped because the antis had a fit about training or something like that. Someone correct me if I'm wrong.

[nvywife]

So, as recommended I call the AG office, got forwarded a few times and ended up speaking to someone at the State Troopers office, who tried to help. But she spoke to their attorney and asked if a copy of our deed (showing we owned property in Nebraska listed as our primary residence) would be enough and I wouldn't have to go through with a full appeal process. Well, this attorney (if she may call herself that), replied that now I would need to change my license over since I am claiming NY as my primary residence... she apparently needs to READ the spouse relief literature.... it is NOT a primary residence, it is a "home of record", meaning that I am not required to change everything over every time we move (which is nice because before here, we have not been in a location greater than 17 months.... Not pleased that someone is just answering on a whim without even looking into the specifics... to me that is just ignorant

So.... have not gotten anywhere with that. Still plan on meeting with JAG and filing an appeal... although not sure if it would be a cheaper to just wait... but based on the above, not sure if they will grant it to me then anyway....

[DaveB]

Nebraska does not issue non-resident permits. The only way I know of to get a Nebraska permit unless you yourself are in the military is to have the Nebraska drivers license. As wrong as this may be, it is the way I understand it to be. I also have a feeling that you are going to have to wait, and then don't know if you will get a Nebraska permit. I also don't know what the literature is that she should read, I will try and find something, but what I see so far is that you retain the right to vote and pay taxes only in the state you claim residency in, and that is NY.

[nvywife]

It would be fine if I am covered and if god forbid something were to happen and I am covered just having my Utah permit. NY is my home of record, for both voting and taxes... but I LIVE here, NY is not my primary residence, NE is. I have found conflicting pieces of the CCW statutes.... so didn't want to leave a legal loop hole open.
From what my husband & I understood is I should need one based on 005.01G, except that the clause 002.15 could classify me as a non resident.... it is a bit confusing.

[DaveB]

I think you were informed on FB of the same I posted. That guy seems to know a lot about it.
 
I also wonder if since you are at the present a NY resident, you would probably not be able to get a permit there either. I could be wrong, but if I remember right, there are only a handfull of permits given out there.

Since you have a Utah permit, you should be okay in Nebraska, but you need to be sure of the Nebraska laws concerning CCW, they are different than Utah's.

The fight you are going to have either way is that anyone in the Nebraska government, either right or wrong, are not going to do a lot to research anything without getting some pressure from more than one little person. They have their mindset, and it takes quite a lot to get them to open up and actually look at something from a different direction.

Good luck.

[DaveB]

005.01G and 002.15 both refer to the one in the military, not the spouse.

[Chris Z]

If you maintain NY as your residence for voting or tax purposes, then you are technically not a NE resident for the purpose of a CHP, therefore you should be fine with just having a Utah permit.

[nvywife]

002.15 defines a resident, says different rule for the spouse, the don't have to wait the 180 days.
I know the spouse relief act is mainly for tax purposes, but it has a portion about residency that states any place it mentions service member to substitute the spouse of an AD service member which appears to cover this instance... going to meet with JAG for interpretation and if it would extend to this since no one in NE Law enforcement seems to have a clue

[AAllen]

Dave I would disagree, She curently live in Nebraska, as a Nebraska Resident she must have an Nebraska CCW.

You are correct the Military Spouses Residency Relief Act covers taxes and voting only.  Everything I can find says that Drivers Licenses and anything else (Like CCW Permit) is according to the state law where one resides.  In nvywife's case she needs to have the 180 days (and I believe Nebraska requires her to get a Nebraska Drivers License as well).

Speaking with JAG would be the best thing she can do.  If my understanding of the Military Spouses Residency Relief Act is wrong they can help her write the appeal letter so she can send it into the State Patrol.  They would be able to put the correct information in so that the SP's Lawyer would need to follow the Fed. Law, if thats the case.  The Sp's Lawyers would recomend the reversing of her denial if our reading of the Military Spouses Residency Relief Act is incorrect, but they would need to hear about their error from a Lawyer to even consider it.

[DaveB]

I think you are right about the Utah permit if she was a Nebraska resident, but she is a NY resident and the Utah permit may be good enough to get by here until she becomes a Nebraska resident. I also am not sure that even being a military spouse and a NY resident that she can even get a Nebraksa permit, even after the 180 days unless she changes her permanent residency. Just owning property does not give residency rights. The MSRRA also allows here to keep and use her NY license and ID.

I feel that if she qualifies in Nebraska in every way to have a permit since she is a military spouse, it should be allowed as if she is a resident. I don't see the need for the 180 days as long as the FBI check comes out.

[Chris Z]

She is NOT a resident of Nebraska according to NE statute 69-2433:

http://www.nebraskalegislature.gov/laws/statutes.php?statute=69-2433

(7)(a) Have been a resident of this state for at least one hundred eighty days. For purposes of this section, resident does not include an applicant who maintains a residence in another state and claims that residence for voting or tax purposes except as provided in subdivision (b) of this subdivision; or

[nvywife]

Spoke with Air Force Legal, and the servicemember's relief act along with the MSRR does cover this type of issue...in more than one place, along with a few other points that make them denying my permit unfounded. He is calling the State Trooper's attorney to discuss, since when I called most recently to clarify I was now told I don't qualify as a resident so don't need the permit (opposite of their original statements).... They need to figure something out because this cannot be a decision based on the mood of the day... Keeping my fingers crossed she listens to what the JAG officer has to say and they just grant me my permit!

[nvywife]

VICTORY!!!.... sort of. So... after meeting with a JAG lawyer, reviewing all of the SCRA and MSRR Act he felt the law supported us.... he discussed the topic and points with the other lawyers on base and they all came to a consensus... this is a pretty big gap in the legislature and it needs to be addressed. He contacted the lawyers at the State Trooper's headquarters in Lincoln to discussed my specific case with one of the 3 lawyers they have. The Trooper's still could not decide on my resident status since it isn't clear, but finally gave me in writing a statement that for CCW purposes I am NOT a NE resident and my Utah permit is sufficient. According to our JAG attorney, and a conversation we had with their lawyer, he agreed this was an issue they were not aware of and said now that we brought it to their attention, there WILL BE a clarification in the legislature.

Not the answer I was looking for, BUT I CAN carry, have a written statement that I am within the law, and they are going to tighten up some of the CCW laws so this issue will not happen again.