O C F I T B L O G Legal Nebraska Municipalities May Not Ban Guns from Public Parks, Trails, and Sidewalks

Nebraska Municipalities May Not Ban Guns from Public Parks, Trails, and Sidewalks

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From Nebraska Attorney General’s Opinion no. 23-009, released Dec. 15, 2023 but just posted on Westlaw:

Municipalities lack authority to regulate the possession of firearms and certain weapons in quintessential public spaces, such as parks, trails, and sidewalks. A statute enacted in 2023, L.B. 77, deprives municipalities of regulatory authority over the possession of firearms or other weapons. And municipalities cannot use their common law proprietary authority to evade this regulatory restriction. Additionally, a blanket ban on firearms possession in such spaces would infringe constitutional rights under the Second Amendment and the Nebraska Constitution.

This year, the Legislature passed L.B. 77, which, after becoming law, significantly changes the way the possession, carriage, and sale of firearms and other weapons are regulated in Nebraska. Relevant 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 nearly all regulatory authority in that space. In the wake of L.B. 77’s passage, several Nebraska municipalities [including Omaha and Lincoln] have issued executive orders that purport to restrict or ban the possession of weaponry on property the municipality owns or controls. These orders include public buildings (such as courthouses), and in some cases expand beyond buildings to include quintessential public places that are usually held open to the public at large, such as parks, trails, and sidewalks.

You have asked whether existing law “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 have also asked whether additional legislation would be necessary to prevent municipalities from regulating weapon possession in these places. None is needed. Municipal action— regardless of the form it takes (enacted ordinance, executive order, informal policy, etc.)—that restricts or bans the possession of weaponry in quintessential public spaces, like those public places identified in your opinion request (parks, trails, sidewalks, and the like), violates at least two rules of law.

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 public spaces identified in your request are not public buildings or like areas where municipal corporations can properly exercise significant common law “”proprietary’ authority; as such, restrictions on weapon possession in places such as parks, trails, and sidewalks necessarily are regulatory in nature. No matter the form of the restriction nor the way in which it is described, these prohibitions are in conflict with L.B. 77.

Second, there is an individual constitutional right to bear arms in public secured by the constitutions of the United States and the State of Nebraska. Thus, even if a municipality possessed and could properly exercise proprietary authority over quintessential public spaces such as parks, trails, and sidewalks, a total ban or significant restriction on the possession of weaponry would violate those constitutionally protected rights.

Here’s more from the constitutional discussion:

Both the Second Amendment to the United States Constitution and Article I, Section 1, of the Nebraska Constitution secure the right of Nebraska citizens “”to keep 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 “sensitive places” where it is constitutionally permissible for the possession of weapons to be “altogether prohibited.” “Courthouses” along with “legislative assemblies” and “polling places” have been offered as examples, Bruen, 597 U.S. at 30, as have “schools and government buildings.” The precise scope of the doctrine remains unsettled: Bruen rejected an overly broad conception—any location where “people typically congregate and where law-enforcement … professionals are presumptively available”—but left the task of outlining a “”comprehensive definition” to a later date….

[T]he fact that one portion of an executive order or other municipal action is unconstitutional does not necessarily render that action unlawful in its entirety. Many public buildings where government business is conducted can be fairly described as “public places;” some, like courthouses, are even presumptively open to members of the public. But there are many obvious and material differences between a courtroom and a public park or trail or sidewalk. That a municipality cannot constitutionally ban the possession of firearms or other weapons in a park or on its sidewalks does not mean that weapons must be allowed in the public gallery of a courtroom or other sensitive place.

Because your question is addressed to public spaces such as parks, trails, and sidewalks, not public buildings, this Opinion does not address where the “sensitive places” line exactly lies, which is a subject of ongoing jurisprudential and scholarly debate. Because state law already prohibits municipalities from regulating firearm possession, it suffices for present purposes to note that the sensitive places doctrine is but one of several possible reasons why constitutional limitations on the possession of weaponry may differ across various locations that can fairly be described as a “public space.” …

Existing law prevents Nebraska municipalities from regulating the possession of firearms or other weapons in public spaces like those identified in your opinion request, namely “public parks, trails, and sidewalks.” Municipalities have sharply limited proprietary authority over these spaces, and L.B. 77 deprived municipalities of all regulatory authority over the possession of weaponry. Consequently, municipalities have no lawful means of restricting or prohibiting the possession of firearms or other weapons there.

Furthermore, the right to publicly bear arms for self-defense provides a constitutional backstop that would preclude a blanket prohibition on weapon possession in those spaces, regardless of whether a municipality sought to implement such a restriction or prohibition by way of regulation or through an exercise of its common law proprietary authority.

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