In the wake of Nebraska adopting Constitutional Carry in 2023, the mayors of Lincoln and Omaha expressed their opposition to the move by making some moves of their own; banning lawful concealed carry from all city property via executive orders. 

Nebraska has had a firearms preemption law in place for some time, though the cities were previously allowed to impose some regulations relating to guns. LB 77, however, made it clear that the state legislature is the sole source of crafting gun laws in the state, and Nebraska Attorney General Michael Hilgers released an opinion in December 2023 declaring the cities lacked the authority to “regulate the possession of firearms and certain weapons in quintessential public spaces, such as parks, trails, and sidewalks.” 

Not only did these local ordinances violate Nebraska’s preemption statute, according to Hilgers, they “infringe constitutional rights under the Second Amendment and the Nebraska Constitution.” 

Nevertheless, the cities have persisted in keeping these ordinances in place, even after the Nebraska Firearms Owners Association filed suit challenging the laws. On Thursday, the lawsuit challenging Lincoln’s restrictions landed in front of the state’s highest court, where attorneys representing Lincoln mounted a logically repugnant defense of the ordinance. 

The Liberty Justice Center, representing the NFOA, contends the city’s rules also infringe on the Second Amendment and create confusion for law-abiding gun owners trying to navigate conflicting regulations.

Liberty Justice Center President, Jacob Huebert, said, “…that directly carries a penalty of a charge of a misdemeanor and up to six months in prison, or a $500 fine or both, for violating it.” 

On the other hand, the Lincoln City Attorney’s Office argues the firearms association hasn’t even come up with a case to challenge these laws.

Yohance Christie, city attorney with the Lincoln City Attorney’s Office, says, “…they have for years carried firearms into parks and they have not even been threatened with prosecution yet they appear in front of this court and say that they have established a credible threat.

I can’t stand this argument, which has been deployed to keep gun control laws in place across the country. I’m not an attorney, but it seems to me that if there’s a law on the books, there’s a credible threat that you’re going to be arrested and prosecuted for violating it. 

Conversely, if there is no credible threat of gun owners facing misdemeanor charges for carrying a concealed firearm in a Lincoln park, why is the city fighting so hard to keep that ordinance in place? The fact that the city is spending taxpayer dollars defending the local law should be evidence enough that officials plan on enforcing it whenever possible. 

Sadly, Lincoln’s argument has been used successfully in other cases, including a challenge to Connecticut’s ban on concealed carry in public parks. A U.S. District Judge threw out David Nastri’s lawsuit against the state’s Department of Energy and Environmental Protection and its commissioner after deciding that the gun owner didn’t face a credible threat of prosecution for violating the law. In that particular case the Second Circuit Court of Appeals rejected the district court’s decision and reinstated the lawsuit, but whether the Nebraska Supreme Court will decide Lincoln’s argument has no merit remains to be seen. 

The attorneys defending Lincoln’s laws are basically telling Nebraska gun owners to roll the dice on breaking the law. In fact, by declaring they face no credible threat of prosecution for violating the law they’re essentially encouraging them to run the risk of a misdemeanor charge and six months in jail because the odds of getting arrested are really low. That’s a strange way to govern, and given the stakes involved the state Supreme Court should do gun owners the favor of guaranteeing there’s no credible threat of prosecution by declaring the ordinance and executive order null and void.