Nebraska Supreme Court Takes Up Standing in Gun Law Challenge

While we’re still waiting to see if the U.S. Supreme Court will tackle “assault weapon” bans and prohibitions on “large capacity” magazines, the state Supreme Court in Nebraska is weighing in on an issue that’s become increasingly relevant to gun owners across the country: who has standing to sue over a particular gun control law. 

In this case, the justices will decide whether gun owners have to first be arrested and charged with violating a municipal ordinance before they can challenge it in court. 

The Nebraska Firearms Owners Association, with help from the now-Texas-based Liberty Justice Center, sued the Cities of Lincoln and Omaha in December 2023, claiming in separate lawsuits that the cities had overstepped their legal authority to regulate guns under state law.

Both lawsuits make similar but slightly different arguments based on the passage of Legislative Bill 77 from 2023, then-State Sen. Tom Brewer’s law legalizing concealed carry of handguns without a permit or state-mandated training. 

A section of that law curbed the authority of cities governed by home-rule charters to restrict guns more stringently than the state. Both Omaha and Lincoln had used that bit of local control in the past to regulate guns and gang violence.  

After LB 77 became law, both cities tried to maintain bans on handguns in city parks and buildings and onto trails. Gaylor Baird and Omaha Mayor Jean Stothert defended the measures as necessary for public safety.

The judge overseeing the lawsuit filed against Omaha’s ordinance put that measure on ice while the litigation moves forward, but the lawsuit against Lincoln’s ordinance was thrown into question after a judge held that gun owners don’t have legal standing to sue the city until they’re actually prosecuted for violating the ordinance. 

That’s an unreasonably high bar, in my opinion. Generally speaking, so long as someone can show that they’ve suffered a real harm because of a particular statute, there’s a high likelihood that a court will find they have standing to challenge that law. In this case, the city’s ban on handguns in parks, buildings, and trails harms the ability of lawful gun owners to protect themselves with a firearm in these publicly accessible places.

You shouldn’t be required to break the law and face a citation or prosecution before you can challenge that constitutionally dubious provision in a courtroom. The mere fact that you’re being deprived of your right to protect yourself with a firearm should be more than enough to bring a challenge, and it’s a positive sign that the state Supreme Court has decided to address this issue instead of punting on it. 

If the state Supreme Court upholds the lower court decision, that would be absolutely terrible news for gun owners and Second Amendment advocates. It would increase the chances that the primary plaintiffs to any given gun control law would be those arrested and facing prosecution, who would also be far more likely to be represented by a public defender instead of an attorney who specializes in Second Amendment issues. I have nothing against public defenders, mind you. In fact, they’re an integral part of our judicial system. But given the typical caseload that they’re working with, they’re also less likely to be able to devote the time and attention necessary to mount a substantive 2A challenge to the issue at hand. 

Tbe Nebraska Supreme Court has the chance to do the right thing and overturn the lower court’s decision on the Lincoln lawsuit. Failure to do so will only embolden anti-gun politicians to run roughshod over our right to keep and bear arms. Today it’s a banning concealed carry in parks and on trails, but tomorrow it might be declaring an entire city to be a “gun-free zone”, at least when it comes to bearing arms.