“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
–U.S. Constitution, Second Amendment
Despite frequent shootings at schools, malls and other public places, it appears both our State Legislature and the United States Supreme Court are poised to expand rather than limit the authority to possess firearms in public.
The Nebraska Legislature recently passed and Governor Pillen signed LB 77, effective September 10, 2023, allowing Nebraskans to carry concealed weapons without a permit. The legislation follows a series of United States Supreme Court decisions clarifying and expanding the “right to bear arms” enshrined in the Second Amendment of the United States Constitution. In District of Columbia v. Heller, the United States Supreme Court settled several important issues defining the scope of the Second Amendment. First, it held the Second Amendment provides an individual right to keep and bear arms for lawful purposes, a right “exercised individually” and “belonging to all Americans.” Second, the Court held the right included the right to carry a firearm for lawful purposes, including self-defense. Both holdings moved the Court away from the notion the Second Amendment protected only the right to organize armed militias. In McDonald v. Chicago, the Court extended protection of the right “to possess a handgun in the home for the purpose of self-defense” against laws enacted by state and local governments by holding the right is found within the Fourteenth Amendment of the United States Constitution.
More recently, in NYSRPA v. Bruen, a Majority of the Court ruled that the Second Amendment protects the ability to carry a pistol in public. While both Heller and NYSRPA allow some gun regulation, it appears limited. For example, while holding states are allowed to enforce “shall-issue” permitting schemes, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, such schemes may not incorporate “arbitrary” evaluations of need for the regulation made by local authorities. Following this rubric, my guess is the Supreme Court will strike down, in New York State Rifle & Pistol Association v. City of New York, a New York City law limiting transportation of handguns outside of the home to a limited list of approved shooting ranges.
So it appears clear citizens can carry firearms in public for lawful purposes, including self-defense. But what happens on the street, in real life? Do police honor that right? Not in my experience defending the citizen accused. That is not intended as a criticism of police, but to recognize the competing interest of public safety police are charged with protecting. The truth is that when police are called to a scene involving conflict and a citizen is in possession of a gun, police can be expected to seize the gun – without regard to the Second Amendment. If police are called and, upon arrival, are told someone reached for a gun during a conflict, that person is almost certainly going to be arrested. If it is alleged the person brandished the gun in self-defense, he likely will be arrested for at least two felonies: Terroristic Threats and Use of a Firearm During the Commission of a Felony.
Under Section 28-311.01, a person commits Terroristic Threats if he or she “threatens to commit any crime of violence … with the intent to terrorize another … or in reckless disregard of the risk” of creating such terror. Because guns always inspire fear, officers frequently respond to an allegation someone reached for a gun, whether or not in self-defense, by arresting the person with the gun under this statute. Terroristic Threats carries up to three years in prison. Under Section 28-1205, the offense of Use of a Firearm During the Commission of a Felony, which includes among other things, “the discharge, employment, or visible display of any part of a firearm … during, immediately prior to, or immediately after the commission of a felony,” is a Class IC felony carrying a mandatory minimum sentence of five years in prison. When a citizen is charged with Terroristic Threats in connection with possessing a firearm, he or she will almost always be charged with this offense as well. That means two felonies for each alleged victim. If a gun is displayed during a conflict with three potential assailants, the citizen will often face six felonies. He will be taken to jail and, when appearing for a judge, the bond will be set high, too high for many to make bail at all. For those who can cobble the money together, many will lose their job in the time it takes to do so.
When the citizen eventually speaks to an attorney, he or she will learn there are only very limited procedural avenues to win dismissal of the case before trial. An aggressive prosecutor may not agree to reduce the charges to avoid trial, or more commonly, they will offer to dismiss the “Use of a Firearm” charge in exchange for a guilty plea to the Terroristic Threats charge. Prosecutors know many citizens will accept this offer instead of facing the possibility of the mandatory minimum five-year sentence of imprisonment the judge would be required to impose if a guilty verdict is returned. Of course, if the citizen cannot risk five years in prison, and pleads to the lesser felony, he loses his right to possess firearms altogether – even for hunting. I have defended many citizens facing this situation, each an employed, upstanding citizen with no relevant prior criminal history. Though all were able to avoid felony convictions, they suffered an arrest and the incredible stress, employment problems, and expense of lengthy hard-fought criminal proceedings.
This is not the only scenario where the Second Amendment clashes with Nebraska’s Criminal Code. Under Section 28-440, when an arrest for domestic assault is made, the law requires officers to seize all “weapons” that “are alleged to have been involved or threatened to be used,” leaving the judge to decide whether they are returned. As you would expect, most judges are not eager to return a gun to one convicted of even a minor domestic assault. In most cases, the defendant is extorted to relinquish any right to his firearm during the plea negotiation process.
In other instances, firearms are seized in the absence of any conflict, perhaps during execution of a search warrant. Under Section 29-820, firearms which have come into the law enforcement agency’s possession through a seizure or otherwise and (i) have not been used in the commission of crime, (ii) have not been defaced or altered in any manner that violates any state or federal law, and (iii) may have a lawful use and be lawfully possessed, shall be restored to the owner. Again, this does not happen automatically and is normally resisted by law-enforcement. In that case, the citizen must Petition the court for return of the firearms. An evidentiary hearing, or trial, is conducted. The citizen has no right to appointed counsel and, if he wisely hires an attorney, he will do so at his own expense. If there is evidence the person is a drug user, including one who frequently uses marijuana, the State can be expected to argue the citizen is “an unlawful user of or addicted to any controlled substance” and thereby prohibited from possessing firearms under 18 U.S.C. §922(g)(3).
All of these situations present difficult issues under the Second Amendment. If you need
help protecting your rights under the Second Amendment, call an experienced civil rights attorney.
