Delaware gun owners received a mixed set of court decisions this month, with a federal judge striking down key portions of the state’s ban on homemade firearms while the Delaware Supreme Court upheld restrictions on firearm possession for adults under 21.
The two decisions involve separate laws and separate Constitutional challenges, but together they highlight the continuing legal battles over Delaware’s gun control agenda.
On September 10, U.S. District Judge Maryellen Noreika ruled that portions of Delaware’s 2021 law targeting so-called “ghost guns” violate the Second Amendment.
The law sought to prohibit the manufacture, assembly, possession, sale. and transfer of homemade firearms.
The federal court drew an important distinction between making a firearm for personal use and distributing an unserialized firearm to someone else.
Noreika concluded that Delaware could not Constitutionally prohibit an otherwise law-abiding individual from manufacturing or assembling a homemade firearm for personal use.
The court found that the Second Amendment’s protections extend beyond simply possessing a completed firearm and encompass the ability to make one for lawful purposes such as self-defense.
At the same time, the court did not invalidate Delaware’s entire law.
The judge allowed the state’s prohibition on selling or transferring unserialized firearms to remain in place, drawing a distinction between an individual making a firearm for personal use and distributing an untraceable firearm to another person.
The ruling marks a significant development in the legal fight over privately manufactured firearms as states across the country continue attempting to regulate so-called “ghost guns.”
But Delaware lawmakers had already moved to revise the state’s law before the court handed down its decision.
Earlier this month, Gov. Matt Meyer signed House Bill 418, legislation specifically intended to address issues raised during the ongoing litigation over Delaware’s original “ghost gun” law.
The new law establishes a process through which people who legally possessed homemade firearms before Delaware enacted its prohibition can bring those firearms into compliance.
Owners can have qualifying firearms serialized through a federally licensed firearms dealer or render them permanently inoperable.
The Delaware General Assembly’s official synopsis of HB 418 says the legislation was designed to “clean up Delaware’s ‘ghost gun’ law to address issues raised in ongoing litigation” while preserving the state’s underlying prohibition on homemade firearms.
That means the legal battle over privately manufactured firearms in Delaware may be far from over.
While Second Amendment advocates scored a victory in federal court over the “ghost gun” restrictions, another major challenge produced the opposite result.
On September 8, the Delaware Supreme Court ruled 4-1 to uphold House Bill 451, a 2022 law generally restricting people under the age of 21 from purchasing, owning, possessing, or controlling certain firearms.
The decision overturned a lower-court ruling that had found the restrictions unconstitutional.
HB 451 contains several exceptions. Among them are exemptions involving military personnel, law enforcement officers, concealed carry permit holders, and certain supervised hunting, sporting, and recreational activities.
Unlike many recent Second Amendment cases, however, the plaintiffs limited their challenge to the Delaware Constitution rather than bringing a claim under the Second Amendment to the U.S. Constitution.
That distinction proved important.
The Delaware Supreme Court declined to adopt the U.S. Supreme Court’s history-and-tradition test established in New York State Rifle & Pistol Association v. Bruen for purposes of interpreting Delaware’s own Constitutional right to keep and bear arms.
Instead, the court continued applying its existing means-end scrutiny under the Delaware Constitution.
The majority concluded that the law did not place an unconstitutional burden on the rights of 18-to-20-year-olds because other avenues for firearm possession remain available.
Among those alternatives, the court pointed to the ability to obtain a concealed carry permit and exceptions allowing access to certain firearms and firearm activities.
With the lower court’s ruling reversed, Delaware’s restrictions on most firearm access for 18-to-20-year-olds are back in effect.
The ruling has also created an unusual situation for young hunters in Delaware.
A separate law signed by Meyer this year, House Bill 427, allows 16- and 17-year-olds who meet the necessary requirements to hunt without direct adult supervision.
But because HB 451’s restrictions on 18-to-20-year-olds are once again enforceable, Delaware can now have circumstances in which a 16- or 17-year-old is permitted to hunt independently while an 18-, 19- or 20-year-old is subject to additional firearm restrictions.
State officials are now working through how the overlapping laws will be implemented.
The Delaware Department of Natural Resources and Environmental Control said that it was consulting with legal counsel and planned to update its guidance for hunters following the state Supreme Court ruling.
The contrasting court decisions demonstrate just how unsettled firearm law remains even after the U.S. Supreme Court’s landmark Bruen decision.
In federal court, Delaware’s attempt to prohibit individuals from manufacturing unserialized firearms for themselves ran into the Second Amendment.
In state court, meanwhile, Delaware’s restrictions on young adults survived because the challenge was decided under the Delaware Constitution and the Delaware Supreme Court applied a different Constitutional framework.
And neither fight necessarily ends with these decisions.
Delaware’s Attorney General’s Office said following the federal “ghost gun” ruling that it was evaluating its options regarding a potential appeal, while the state’s newly enacted serialization law could generate additional litigation.
For Delaware gun owners, the result is an increasingly complicated legal landscape: one major firearm restriction has been partially struck down, another has been revived, and lawmakers have already enacted new legislation that could set the stage for the next round of court challenges.
Read more at Spotlight Delaware.
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