From Nebraska Attorney General Opinion No. 23-009, released December 15, 2023 but just posted on Westlaw:
Municipalities do not have the authority to regulate the possession of firearms and some weapons in quintessential public spaces, such as parks, trails and sidewalks. A statute enacted in 2023, LB 77, strips municipalities of regulatory authority over the possession of firearms or other weapons. And municipalities cannot use their common law property ownership authority to circumvent this regulatory restriction. Furthermore, a blanket ban on the possession of firearms in such spaces would violate constitutional rights under the Second Amendment and the Nebraska Constitution.
This year, the Legislature passed LB 77, which, upon becoming law, significantly changes how the possession, transportation, and sale of firearms and other weapons are regulated in Nebraska. Relevant to this case, LB 77 declared that the regulation of the “ownership, possession, storage, transportation, sale, and transfer” of guns is a “matter of state concern” and stripped municipalities of nearly all regulatory authority in that space. In the wake of the passage of LB 77, several Nebraska municipalities [including Omaha and Lincoln] have issued executive orders purporting to limit or prohibit the possession of guns on property owned or controlled by the municipality. These orders include public buildings (such as courthouses) and in some cases expand beyond buildings to include quintessential public places that are usually open to the general public, such as parks, trails, and sidewalks.
She asked if the existing law “prevents[s] Nebraska municipalities from regulating the possession of firearms and other weapons in public spaces, for examplepublic parks, trails, and sidewalks.” Yes. You also asked whether additional legislation would be needed to prevent municipalities from regulating gun ownership in these locations. It is not necessary. Municipal action, regardless of the form it takes (enacted ordinance, order executive, informal politics, etc.) – which limits or prohibits the possession of weapons in public spaces par excellence, such as the public places identified in your request for opinion (parks, paths, sidewalks and the like), violates at least two rules of law.
First, LB 77 prohibits municipalities from “regulat[ing] possession [[and] transportation… of firearms or other weapons, except as expressly provided by state law.” The public spaces identified in the request are not public buildings or similar areas in which municipal entities can adequately exercise significant “proprietary” authority to common law; as such, restrictions on gun ownership in places such as parks, trails, and sidewalks are necessarily regulatory in nature, and regardless of the form of the restriction or how it is described, these prohibitions conflict with LB 77.
Second, there is an individual constitutional right to bear arms in public, guaranteed by the constitutions of the United States and the State of Nebraska. Therefore, even if a municipality possesses and can adequately exercise proprietary authority over quintessential public spaces such as parks, trails, and sidewalks, a blanket ban or significant restriction on gun ownership would violate these 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 guarantee the right of citizens of Nebraska “” to keep and bear Arms. “…
That said, not all municipally owned establishments that restrict the possession of firearms or other weapons are unconstitutional. Both The bridge AND Heller acknowledged that there are some “sensitive places” where gun ownership is constitutionally permitted to be “totally prohibited.” “Courts” along with “legislative assemblies” and “polling stations” were offered as examples. The bridge, 597 US at 30, as well as “schools and government buildings.” The precise scope of the doctrine remains uncertain: The bridge rejected an overly broad conception – any place where “people typically congregate and where law enforcement…professionals are presumably available” – but left the task of outlining a “comprehensive definition” to a later date ….
[T]The fact that a portion of an executive order or other municipal act is unconstitutional does not necessarily make that act illegitimate in its entirety. Many public buildings where government business is conducted can rightly be described as “public places”; some, like courts, are even supposedly open to the public. But there are many obvious and substantial differences between a courtroom and a public park, trail, or sidewalk. Just because a municipality cannot constitutionally prohibit the possession of firearms or other weapons in a park or on a sidewalk does not mean that weapons should be allowed in the public gallery of a courtroom or other sensitive location.
Since your question is directed at public spaces such as parks, paths and sidewalks, not public buildings, this opinion does not address where exactly the “sensitive places” line lies, which is the subject of ongoing jurisprudential and academic debate. Since state law already prohibits municipalities from regulating firearm ownership, for present purposes it is sufficient to note that the hot spots doctrine is but one of many possible reasons why constitutional limitations on gun ownership may differ between the various places, which can rightly be described as a “public space.” …
Existing law prevents Nebraska municipalities from regulating the possession of firearms or other weapons in public spaces such as those identified in your request for opinion, namely “public parks, trails, and sidewalks.” Municipalities severely limited ownership power over these spaces, and LB 77 stripped municipalities of any regulatory authority over gun ownership. As a result, municipalities have no legal means to limit or prohibit the possession of firearms or other weapons.
Furthermore, the right to publicly bear arms for self-defense provides constitutional support that would preclude a general ban on gun ownership in those spaces, regardless of whether a municipality has sought to implement such a restriction or ban by regulation or through an exercise of its jurisdiction. common law proprietary authority.