Omaha could be the next battleground in the fight over firearms preemption

AP Photo/Lisa Marie Pane

On September 1st, Nebraska’s new permitless carry law will take effect and lawful gun owners will be able to bear arms in self-defense without the need for a government-issued permission slip. It’s been a long time coming, with state Sen. Tom Brewer introducing permitless carry legislation for the past six years, and this year the Republican supermajority was finally able to enact the legislation despite an attempt to filibuster the bill by the Democratic minority in the unicameral legislature.

But while the new law is set to take effect in less than a month, anti-gun city council members in Omaha are asking the city attorney to investigate what new restrictions can be put in place at the local level. As KETV in Omaha reports, city council president Pete Festersen is asking the city’s law department to look into the legality of local ordinances banning everything from bump stocks and “ghost guns” to modern sporting rifles, as well as designating parts of the city as “sensitive places” where concealed carry would be prohibited and imposing a municipal “red flag” law that would empower police to confiscate firearms from residents deemed by a judge to be a threat to themselves or others.

“I think LB 77 failed to recognize that cities have a different situation they’re facing, and that’s why both Omaha and Lincoln opposed this bill,” Festersen told the TV station.

Here’s the biggest problem with Festersen’s statement: our Second Amendment rights (or any other right for that matter) are not based on the population density of where we live. Someone living on a farm in the middle of Virginia has the same right to keep and bear arms as someone who lives in a Manhattan high-rise or a bungalow in the heart of Omaha. The reason why lawmakers from Omaha and Lincoln opposed LB 77 is because they’re Democrats, and that’s what Democrats do these days; oppose any recognition of our right to keep and bear arms.

The KETV report that included Festersen’s comments was definitely slanted towards an anti-gun point of view, featuring footage of a Moms Demand Action activist shouting “shame” at legislators during the debate over LB 77 and claiming that Omaha’s gun registration ordinance, which was repealed by LB 77, was “a tool police used to address violent crime by deterring from accessing firearms and allowing police to track stolen guns”. That’s a downright laughable assertion given that in the very same report KETV said that Omaha police seized a record number of firearms last year when the ordinance was still fully in place and enforceable.

Festersen told KETV that his proposals are just “common sense”, which is an odd way to say “plainly unconstitutional”. The station reports that a public hearing on his proposed ordinances is supposed to take place later this month, which should be fun to watch, especially if the city’s law department has had the opportunity to inform Festersen and his fellow council members about Nebraska’s firearm preemption law.

Under that statute, which was strengthened this session as part of LB 77, cities and towns in the state have no power or authority to enact ordinances dealing with “the ownership, possession, storage, transportation, sale, and transfer of firearms and other weapons.” Instead, it’s up to the legislature to set a uniform body of gun laws that apply across the state, with cities like Omaha and Lincoln only having limited authority to “punish and prevent the the discharge of firearms” within the city limits.

You don’t need a law degree or access to the Omaha City Attorney to figure out that most of what Festersen is proposing is going to run afoul of state law and/or the Second Amendment. Maybe a local ordinance banning bump stocks could survive a court challenge in state court (though the legality of the federal bump stock ban has been called into question by multiple courts of appeal), given that item is an accessory and not a firearm itself, but the other items on Festersen’s wish list are going to run headlong into the state’s preemption law.

Of course, that may not matter to the city council. As we’ve discussed here before, there’s a concerted effort on the part of gun control groups to go after preemption laws all around the country. Nebraska’s neighbor Colorado repealed its own preemption law last year, while in Missouri anti-gun activists are hoping to put a repeal measure before voters next fall. We’ve also seen local officials in cities like Columbus, Cincinnati, and Cleveland working to undo Ohio’s preemption law in court, and that may very well be Festersen’s ultimate aim here as well; impose ordinances that are utterly unenforceable under state law and then use those restrictions to undo the preemption law entirely.

Festersen is either going to be sorely disappointed by what the city’s law department has to say about his proposals or will pay no mind to the limits placed on the city by the state legislature. We’ll have a better idea of what his strategy is later this month, but Omaha could very well be ground zero for the next court fight over firearms preemption.