From Nebraska Legal professional Common’s Opinion no. 23-009, launched Dec. 15, 2023 however simply posted on Westlaw:
Municipalities lack authority to control the possession of firearms and sure weapons in quintessential public areas, equivalent to parks, trails, and sidewalks. A statute enacted in 2023, L.B. 77, deprives municipalities of regulatory authority over the possession of firearms or different weapons. And municipalities can’t use their widespread regulation proprietary authority to evade this regulatory restriction. Moreover, a blanket ban on firearms possession in such areas would infringe constitutional rights underneath the Second Modification and the Nebraska Structure.
This 12 months, the Legislature handed L.B. 77, which, after changing into regulation, considerably adjustments the way in which the possession, carriage, and sale of firearms and different weapons are regulated in Nebraska. Related right here, L.B. 77 declared the regulation of the “ownership, possession, storage, transportation, sale, and transfer” of weaponry to be a “matter of statewide concern” and stripped municipalities of almost all regulatory authority in that house. Within the wake of L.B. 77’s passage, a number of Nebraska municipalities [including Omaha and Lincoln] have issued government orders that purport to limit or ban the possession of weaponry on property the municipality owns or controls. These orders embody public buildings (equivalent to courthouses), and in some instances increase past buildings to incorporate quintessential public locations which are often held open to the general public at giant, equivalent to parks, trails, and sidewalks.
You could have requested whether or not present regulation “prevent[s] Nebraska municipalities from regulating the possession of firearms and other weapons in public spaces, e.g., public parks, trails, and sidewalks.” It does. You could have additionally requested whether or not further laws can be obligatory to forestall municipalities from regulating weapon possession in these locations. None is required. Municipal motion— whatever the kind it takes (enacted ordinance, government order, casual coverage, and so on.)—that restricts or bans the possession of weaponry in quintessential public areas, like these public locations recognized in your opinion request (parks, trails, sidewalks, and the like), violates at the least two guidelines of regulation.
First, L.B. 77 forbids municipalities from “regulat[ing] the … possession [[and] transportation … of firearm or other weapons, except as expressly provided by state law.” The general public areas recognized in your request will not be public buildings or like areas the place municipal firms can correctly train important widespread regulation “”proprietary’ authority; as such, restrictions on weapon possession in locations equivalent to parks, trails, and sidewalks essentially are regulatory in nature. Regardless of the type of the restriction nor the way in which wherein it’s described, these prohibitions are in battle with L.B. 77.
Second, there’s a person constitutional proper to bear arms in public secured by the constitutions of america and the State of Nebraska. Thus, even when a municipality possessed and will correctly train proprietary authority over quintessential public areas equivalent to parks, trails, and sidewalks, a complete ban or important restriction on the possession of weaponry would violate these constitutionally protected rights.
Here is extra from the constitutional dialogue:
Each the Second Modification to america Structure and Article I, Part 1, of the Nebraska Structure safe the appropriate of Nebraska residents “”to maintain and bear arms.” …
That said, not every exercise of municipal proprietary authority that restricts firearm or other weapon possession is unconstitutional. Both Bruen and Heller recognized that there are some “delicate locations” where it is constitutionally permissible for the possession of weapons to be “altogether prohibited.” “Courthouses” along with “legislative assemblies” and “polling locations” have been offered as examples, Bruen, 597 U.S. at 30, as have “colleges and authorities buildings.” The precise scope of the doctrine remains unsettled: Bruen rejected an overly broad conception—any location where “individuals usually congregate and the place law-enforcement … professionals are presumptively out there”—but left the task of outlining a “”comprehensive definition” to a later date….
[T]he indisputable fact that one portion of an government order or different municipal motion is unconstitutional doesn’t essentially render that motion illegal in its entirety. Many public buildings the place authorities enterprise is performed will be pretty described as “public places;” some, like courthouses, are even presumptively open to members of the general public. However there are numerous apparent and materials variations between a courtroom and a public park or path or sidewalk. {That a} municipality can’t constitutionally ban the possession of firearms or different weapons in a park or on its sidewalks doesn’t imply that weapons should be allowed within the public gallery of a courtroom or different delicate place.
As a result of your query is addressed to public areas equivalent to parks, trails, and sidewalks, not public buildings, this Opinion doesn’t deal with the place the “sensitive places” line precisely lies, which is a topic of ongoing jurisprudential and scholarly debate. As a result of state regulation already prohibits municipalities from regulating firearm possession, it suffices for current functions to notice that the delicate locations doctrine is however one in all a number of potential explanation why constitutional limitations on the possession of weaponry could differ throughout varied places that may pretty be described as a “public space.” …
Current regulation prevents Nebraska municipalities from regulating the possession of firearms or different weapons in public areas like these recognized in your opinion request, particularly “public parks, trails, and sidewalks.” Municipalities have sharply restricted proprietary authority over these areas, and L.B. 77 disadvantaged municipalities of all regulatory authority over the possession of weaponry. Consequently, municipalities don’t have any lawful technique of limiting or prohibiting the possession of firearms or different weapons there.
Moreover, the appropriate to publicly bear arms for self-defense gives a constitutional backstop that might preclude a blanket prohibition on weapon possession in these areas, no matter whether or not a municipality sought to implement such a restriction or prohibition by the use of regulation or by way of an train of its widespread regulation proprietary authority.