By a narrow majority, the Supreme Court of Delaware recently struck down decades-old regulations that it found conflicted with the state constitution by “completely eviscerat[ing] a core right to keep and bear arms for defense of self and family outside the home.”
Article I, Section 20 of Delaware’s Constitution protects the right “to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Courts interpreting Section 20 have found this state law is “intentionally broader than the Second Amendment” and specifically protects an independent right to bear arms outside the home.
Two state agencies had long-standing regulations that effectively banned the carrying of firearms for self-defense in Delaware’s state parks and state forests. The first, adopted by the Department of Natural Resources and Environmental Control (DNREC), prohibited the display, possession, or discharge of firearms “of any description” anywhere within the approximately 23,000 acres of park land controlled by DNREC, unless the person was engaged in approved hunting activities or had written permission from the DNREC Director. In another regulation, the Department of Agriculture (DOA) completely banned guns on an additional 18,000 acres of state forest land, with an exception for limited hunting activities (only licensed hunters selected by lottery and using allotted tree stands at designated times).
After Delaware gun clubs and their members brought a legal challenge alleging that the regulations violated Section 20 and exceeded the scope of authority granted to the agencies, a lower court upheld the restrictions. In a ruling last December, the Delaware Superior Court found the regulations were justified as being substantially related to the objective of keeping the public safe from guns, and did not unduly infringe on the plaintiffs’ rights because the plaintiffs still had the option of hunting on the lands. The court added, rather loftily, that the plaintiffs’ apprehensions regarding self-defense were misplaced because “the need to respond to a threat with a firearm is diminished when firearms are prohibited in the area.”
Thankfully, on appeal, in a 3-2 decision, the Supreme Court of the State of Delaware reversed that ruling earlier this month. It ruled that not only did DNREC and DOA fail to justify “such sweeping regulations,” but failed to show they even had the authority to enact “such unconstitutional regulations in the first place.”
The majority opinion by Justice Karen Valihura, joined by Justices James Vaughn and Gary Traynor, surveyed the historical background of the right to keep and bear arms. This right “has existed since our State’s founding and has always been regarded as an inalienable right.” And while the United States Supreme Court has not yet decided whether the Second Amendment protects carrying arms outside the home, it was clear that Section 20 included the right of public carry for self-defense among the “bundle of rights” it protected. (The majority added, peripherally, that “the conclusion that self-defense is the Second Amendment’s ‘core purpose’ suggests that it must allow citizens to be armed outside the home given that ‘in some circumstances a person may be more vulnerable in a public place than in his own house,’ among other reasons….”).
Permitting a select few individuals to “exercise a narrow sliver of their Section 20 rights” when hunting did not adequately implement the more comprehensive guarantee of the right to bear arms, and was no substitute for a more general right to have a firearm for defense of self and family. In evaluating the regulations, the majority determined that because they imposed a ban on the possession of guns for almost every person, at all times, in all state parks and forests (an area “the size of the entire District of Columbia at issue in Heller and four times the size of the City of Wilmington”), a strict standard of review applied. The regulations were so severe – not just infringing but destroying the “core Section 20 right of self-defense” – that they were bound to fail even if the court applied a less demanding level of review, intermediate scrutiny.
In determining that the restrictions were completely invalid, the majority categorically rejected every argument advanced by the state agencies in support of their regulations. Addressing the public safety argument (“public safety substantially outweighs any individual selfish interest in possession of a firearm”), the court found there was no basis at all on which it could conclude that public safety justified a total gun ban, particularly as carrying of firearms was permitted in Delaware’s much more crowded cities and urban areas. In fact, the DOA specifically warned hunters, campers, and hikers that the Forest Service could not provide “after-hours, nighttime or weekend” security services or other protection for users, and Delaware’s crime rate currently exceeds the national average. Referring to the finding of the court below (that the “need to respond to a threat with a firearm is diminished when firearms are prohibited in the area”), the majority correctly countered this conclusion as one “premised on the questionable notion—unsupported by reference to any evidence—that outlawing possession of firearms in an area makes law-abiding citizens safer because criminals will, for some reason, obey the Regulations.”
The regulations couldn’t be justified as rules restricting guns in “traditional sensitive places,” because parks and forests fell within “a far different” category than places like schools or courthouses, which were equipped with controlled entry points and onsite law enforcement or other security personnel that made the need to carry a firearm for personal protection “less acute.” Even assuming there could be “sensitive areas” within state parks and forests, there was nothing to show that the government had attempted to delineate such areas instead of imposing a blanket prohibition. Moreover, the regulations were “grossly out of step with the type of ‘place’-based restrictions” already adopted by Delaware’s legislators, being “purposefully narrow and few in number.”
Turning to the state’s authority as a proprietor or owner of the parks and forests, the court quickly dismissed this as a potential support for the agency restrictions. A prior court decision had made it clear that “the State cannot ignore our Constitution, even when acting as proprietor of State-owned property.”
The DNREC and DOA also contended that a state law protected agency actions through a presumption of validity. That law, however, expressly excluded regulations adopted “without a reasonable basis” or that were “otherwise unlawful.” The regulations here were plainly unconstitutional, and judicial deference to the “unspecified reasons of unelected officials attempting to justify an infringement on a fundamental right” was unwarranted.
In a let-them-eat-cake statement, the dissenting judges scoffed, “If you don’t like the rules, then you don’t have to go in the park.” In a telling contrast, the majority opined that “[r]esponsible, law-abiding Delawareans should not have to give up access to State Parks and State Forests in order to enjoy their constitutional right to carry a firearm for self-defense.”
One of the avowed objectives of the anti-gun movement is to chip away at constitutional protections of the right to keep and bear arms until nothing remains. This case highlights the great importance of the crucial work done by NRA and our local state affiliates and organizations, the importance of a judiciary committed to upholding constitutional freedoms, and the need to ensure that state constitutions include a clear safeguard of the personal right to bear arms.
The ruling in Bridgeville Rifle & Pistol Club, Ltd. v. Small (Del. Dec, 7, 2017) is available online, here.
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