LB 816: A Solution to a Problem that Doesn’t Exist

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When so-called “reasonable gun control restrictions” are written by people who neither understand nor appreciate the sporting, hunting, recreational, practical, or historical nature of firearms, it is often obvious in the convoluted and non-sensical language used in their proposed laws.  Legislative Bill 816, sponsored by State Senator John McCollister, District 20, is the perfect example of such a bill.  From reading the proposed bill, it is impossible to understand what “problem” the bill is attempting to address (much less solve).  Even worse, the bill would enact a law that would create more legal questions and confusion than it solves.

So what is LB 816?  On its face, LB 816 amends Nebraska’s Handgun Purchase Certificate laws to include semi-automatic shotguns and semi-automatic rifles.  While this seems simple enough, the bill is overly complex and, in many parts, non-sensical.  Because of the way it is written, many argue that it is designed as the first step in a so-called “assault weapon” ban in Nebraska.  Without getting too political, this article will stick to the facts of the bill and not go beyond what it may be trying to accomplish.  Fortunately, the bill is so flawed that it is easy to criticize without needing to attribute any hidden motive.

Nebraska’s Handgun Purchase Permit

Since 1991 it has been the law in Nebraska that to purchase a handgun, a person needed to apply for a “handgun purchase permit.”  Without such a permit (or, more recently, a concealed carry handgun permit), it is illegal for anyone to purchase a handgun in Nebraska.  The handgun purchase permit has worked in Nebraska with little controversy.  The irony of the handgun purchase permit, however, is that these laws make it easier to purchase a firearm because they negate the need for a background check when a firearm is purchased.

In other words, once a person has a valid permit, they can purchase a firearm, fill out the necessary paperwork, and leave with the firearm without having to undergo the FBI National Instant Criminal Background Check (NICS check) for that purchase.  This can save considerable time when buying a firearm.  The concept is that in order to get the permit, all necessary background checks are completed in advance.  Additionally, because the law requires people to surrender their purchase permit should they become unqualified, retailers are allowed to assume that if a person has a permit, they are legally authorized to purchase the firearm.  Essentially, the law assumes criminals will be honest—an inherent flaw in the preponderance of gun control legislation.  Of course, laws don’t prevent crime, they merely outline the consequences for people who engage in criminal activity.  After all, if laws prevented crime, there would be no crime.

LB 816 seeks to amend Nebraska’s handgun purchase permit in several meaningful ways.  First, it adds certain “designated firearms” (which amount to virtually all semi-automatic shotguns and rifles) to the permit process.  Most importantly, it changes the qualifications of those who would be entitled to obtain a purchase certificate.  Instead of allowing all lawful owners of firearms to obtain the certificate (the current standard)—it would restrict the issuance of the certificate to only those who are eligible to obtain a concealed carry firearm license.

This new standard for being able to purchase handguns and “designated firearms” is significant because there are a series of minor legal violations that would prohibit a person from the privilege of obtaining a CCW permit, but not prevent people from otherwise owning or enjoying firearms.  Additionally, no one under the age of 21 may have a CCW (or purchase a handgun) but the lawful age for ownership of rifles and shotguns is 18.  Thus, LB 816 would prohibit the purchase or transfer of said firearms to anyone who isn’t 21 years of age.

Also of significance is that the bill defines “designated firearms” to include parts and accessories that do not meet any definition of a firearm.  LB 816 seems to require a permit to purchase parts such as a flash hider, magazine, a folding stock or any countless numbers of accessories that will need a certificate to purchase.  The Act requires the State Patrol to provide a list of all firearms and parts that meet the definition and publish the list annually (although exclusion from the list does not render the firearm or part exempt from the law).

Designated Firearms under LB 816

In addition to handguns, LB 816 would add a category of “designated” firearms subject to the firearm purchase permit.  There are two primary categories of firearms to be included:  semi-automatic shotguns and semi-automatic rifles—not including the parts and accessories defined by the act.  To be included, however, these firearms must have certain “characteristics.”  Regarding a semi-automatic rifle, a designated firearm is defined as those semi-automatic rifles with a detachable magazine and any one of the following characteristics:

1. A threaded barrel;
2. The ability to accept belt-fed ammunition;
3. A pistol grip;
4. A forward grip;
5. “Any other grip or stock, the use of which would allow an individual to grip the weapon in such a way that any finger on the trigger hand, in addition to the trigger finger, would be directly below any portion of the action of the weapon when firing;”
6. A flash suppressor;
7. A folding, telescoping or removable buttstock;
8. Any part or combination of parts that are intended to increase the rate of fire of the firearm without transforming the firearm into a machinegun;
9. Any semi-automatic rifle with an overall length of less than 30 inches;
10. Any rifle capable of having a rocket launcher, grenade launcher or flare launcher attached to it;
11. Any parts or accessories that in combination can be used to build such a rifle; or
12. The receiver of a rifle that can be built into any of the above;

As for a semi-automatic shotgun, the following characteristics would land the shotgun as a “designated firearm:”

1. A detachable magazine;
2. A magazine with the ability to accept more than 5 rounds of ammunition;
3. The ability to accept belt-fed ammunition;
4. A pistol grip;
5. A forward grip;
6. Any other grip or stock, the use of which would allow an individual to grip the weapon in such a way that any finger on the trigger hand, in addition to the trigger finger, would be directly below any portion of the action of the weapon when firing;
7. A folding, telescoping or removable buttstock;
8. A revolving cylinder;
9. a rocket launcher, grenade launcher, or flare launcher;
10. Any parts or accessories that in combination can be used to build such a shotgun; or
11. The receiver of a shotgun that can be built into any of the above;

Of course, for those who understand firearms, the items on this list encompass nearly every semi-automatic shotgun or rifle commercially produced.  This law will add unnecessary regulation of everything from popular turkey and trap shotguns to the ubiquitous Ruger 10/22—the .22 caliber rimfire rifle commonly used to train our youth and remains one of the most popular “plinker” rifles on the market.  As for the parts to be regulated, there are too many to list in any practical fashion.

The Technical Problems with LB 816

LB 816 has numerous problems.  For example, the law attempts to suggest that there exists a type of stock for which the fingers of the trigger hand ride above the action of the rifle.  This definition is non-sensical because the trigger is always below the action, and thus the trigger hand always rests below the action.  This is true for nearly every commercially available semi-automatic firearm.  The only exceptions that come to mind would be a “butterfly” style trigger that is usually reserved for crew-served machineguns produced for the military.  Tanks, attack helicopters, warplanes, and artillery pieces also have trigger mechanisms that could be above (or in line with) the action, but commercially available shotguns and rifles aren’t made that way.

Another example of the silliness of this proposed legislation is the length it goes to identify and define rocket launchers and grenade launchers.  This is silly because these are known as “destructive devices” and are already illegal in Nebraska.  Thus, providing a permit designed to restrict the purchase of these items is pointless.  When those who are proposing laws don’t understand the laws that already exist, I suggest high levels of skepticism.

In addition to these obvious issues, there exist other problems.  For example, the attempt to define devices that “increase the rate of fire” without turning a firearm into a machinegun will cause significant confusion.  The only device that comes to mind (other than a “bump stock” which is already illegal) might be a binary trigger.  Of course, a binary trigger does not increase the rate of fire from a semi-automatic state.  It allows a bullet to be fired upon the trigger being depressed, and then a second bullet to fire when the trigger “resets.”  If this is the type of item they are trying to regulate, they should define it as such.

Otherwise, the definition as it stands has essentially no meaning.  It is too vague to understand.  This is true because there is no standard measurement for the rate of fire from a semi-automatic state.  A semi-automatic firearm with a 10-pound trigger will, in theory, fire slower than one with a three-pound trigger because a person can theoretically pull the trigger faster on the firearm with a lighter trigger pull.  A stronger person, however, may be able to shoot a 10-pound trigger faster than a person who is firing a lighter trigger.  So, how do you define a trigger that is designed to increase the rate of fire?  Every trigger in a semi-automatic rifle is designed to fire a round as fast the trigger can be operated.  How can this be increased or decreased?

What about common “adjustable” triggers?  Many firearms have triggers that allow the “pull” to be adjusted to the user’s preference.  A person with a slight build or a handicap may need a lighter trigger while another may prefer a heavier pull weight.  The pull may also be adjusted based on the intended use of the rifle.  Hunting and defense firearms typically call for a heavier pull to account for safety considering how the firearm is handled.  For precision competition shooting (usually fired from a bench or in a supported position) lighter triggers are favored. What technical voodoo allows such adjustments—a simple screw.

Another fatal flaw with the legislation is the fact that it applies to “receivers” of such firearms.  For those who might not be familiar, a receiver is the serial numbered part of the firearm that houses the action and the trigger. Federal law defines a receiver as a “firearm” even though that piece, by itself, is nothing more than a useless piece of metal.  All firearms by definition have a receiver.  Thus, when the law is applied to receivers, it applies to both a receiver built into a complete firearm and also as a bare piece of metal.  If it is the receiver that is the critical component of defining what a “designated firearm” is or isn’t, then because every semi-automatic rifle and shotgun have a receiver that could be reconfigured—the definition encompasses essentially every firearm.  Clear as mud?

What is the Point of LB 816?

Good legislation has a clear public interest goal and efficiently achieves that goal.  By any stretch, LB 816 would not come close to meeting this definition of good legislation.  First, what is the purpose of amending the handgun purchase permit statutes?  If the goal is to make sure that these firearms and parts are subjected to strict background checks, the legislation fails.  This is true because once a person has a permit to purchase, no background checks are necessary when a person buys the firearm.  The net result of LB 816 is fewer background checks, not more.

Is the purpose to limit who owns these firearms and parts?  Again, this legislation fails.  This bill does not change who can own such firearms, it just addresses who can purchase the designated firearms and accessories.  Nothing prevents a person from legally purchasing a designated rifle or shotgun (or any of the parts) in another state and bringing it back to Nebraska.  As for the parts, all are widely available online and enforcement will be impossible.  What about crime prevention?  Fail.  Factually, rifles and shotguns are the least used firearms when it comes to crimes.  As for the dreaded “assault rifle”—again, the statistics don’t support the rhetoric.  This bill won’t reduce the number of firearms in Nebraska, increase background checks, or otherwise solve any identifiable problem that haunts Nebraskans.

The only clear thing that LB 816 does is prevent people who are ineligible to obtain a concealed carry permit from purchasing a handgun or “designated firearm.”  Of course, this is an odd and inefficient way to restrict such firearms.  Again, the bill doesn’t make it illegal for a person to own or possess any of these firearms.  It merely prevents them from purchasing them.  What is the point of preventing someone from purchasing an item that is lawful for them to own or possess?  If the point is to prevent ownership or possession—then let’s have that conversation.  This bill, however, doesn’t do that.  The reality is that this bill adds pointless hurdles for law-abiding Nebraskans and will cost real taxpayer money for the State Patrol to try and figure out every firearm, and every firearm part and accessory, that this bill contemplates.  All this for a significant list of firearms that are commonly used and enjoyed by law-abiding citizens throughout Nebraska.

Is LB 816 Constitutional?

If passed, LB 816 is likely to be challenged in court as being unconstitutional.  Because it prevents people from purchasing what they can lawfully own, it raises significant Constitutional issues.  First, in order to restrict a person’s civil rights (in this case, the rights afforded by the Second Amendment of the United States Constitution and Article I of the Nebraska Constitution), a law must be strictly tailored to prohibit a legitimate state interest without unreasonably impacting the rights of law-abiding citizens.  What is the legitimate governmental purpose in restricting the ability to purchase items that can be lawfully owned?

I suspect the intended answer is to somehow protect the public from those types of firearms that are politically defined as “assault rifles”—even though LB 816 goes so far outside of even the most liberal of those definitions.  Even assuming, however, this is the case, to be a “legitimate” state interest, the State must have some basis in fact that these types of firearms are somehow unreasonably more dangerous than those firearms that are not being regulated.  For many reasons, the State will never be able to meet this burden (the facts supporting this statement could be an entire article in and of itself).  Further, this legislation is not restrictive enough to prevent the so-called “harm” without making it overly inconvenient for the law-abiding public.  Again, preventing someone from purchasing something they can lawfully own is the definition of unduly burdensome.

The other Constitutional issues related to the vagueness of the definitions used in the bill.  To be Constitutional, any statute that proposes criminal penalties must be clear and unambiguous—to allow the public to know exactly what is being outlawed.  Again, because the proposed definitions regarding the stock, receiver, and “rate of fire” are so flawed, it is impossible for anyone, let alone a firearm expert, to know what this bill is trying to do.  If you add in the vague catch-all regarding parts and accessories, the bill only becomes more unworkable, unenforceable, and unconstitutional.

Berry Law Supports the Constitution

As lawyers, patriots, and Veterans, those of us at Berry Law support and defend the Constitution of the United States and the State of Nebraska.  We oppose laws that unduly infringe on our Constitutional rights.  For the reasons cited above, we oppose LB 816 and recommend that you contact your Legislator and voice your opposition.

UPDATE: On February 20, 2020, Senator McCollister filed Amendment 2498 to LB 816. If adopted, AM 2498 would replace the entirety of LB 816 as introduced, making substantial changes. AM 2498 would remove all the “designated firearm” language that would require Nebraskans to acquire purchase certificates for semi-automatic shotguns and rifles. The Amendment, therefore, would make no change to current law that requires only handguns to require a purchase certificate. AM 2498 would also remove LB 816’s problematic proposal to restrict the issuance of purchase permits to only those who are eligible to obtain a concealed carry firearm license (CCW). In other words, Senator McCollister’s amendment would gut the majority of LB 816. The sections that remain in AM 2498 would make two changes to Nebraska law. First, AM 2498 would extend the deadline for law enforcement to respond to purchase certificate applications from three days to up to five days, but no less than two days. This would create a mandatory 48 hour waiting period for issuance of the handgun purchase permit. Second, AM 2498 would require a licensed firearms dealer be present at every gun show to ensure all handgun purchases comply with handgun purchase certificate laws. While LB 816 originally included these two changes, we did not address these sections in this article as they are insignificant compared to the rest of the bill. Apparently, Nebraskan’s strong negative reaction to LB 816 has been heard up to this point.

Despite the introduction of AM 2498, it is still critical to understand LB 816 as introduced, as all or parts of the original bill could be considered as it moves through the legislative process. In other words, while the proposed AM 2498 is a positive development, it is still not “dead” and the proposed amendment could be rejected or further amendments could add the original language back in.  Additionally, LB 816 closely mimics other anti-firearm proposals influenced by the wealthy anti-firearm lobby nationally and in other states.  Specifically, we are aware that Michael Bloomberg’s anti-gun lobbies are actively spending money in Nebraska to influence legislation like LB 816 and LB 58 (the proposed Red Flag Law currently in the Legislature).  We believe this bill may, unfortunately, be just a preview of future attacks on Nebraskans’ Second Amendment rights. At Berry Law, we will continue to monitor these bills and fight for protection of the Bill of Rights, including the Second Amendment.