While gun control activists are applauding the passage of a bill in Delaware that bans the possession and manufacture of unserialized firearms, they shouldn’t get their hopes up about the longevity of the proposal. I have a feeling that the Supreme Court won’t look too kindly on the measure, since it manages to infringe on both the First and Second Amendment rights of residents.
The bill doesn’t just impose minor penalties for violations, either. In fact, according to the language of the legislation, merely keeping possession of a legally-built gun that doesn’t have a serial number will soon be a felony offense.
The bill also criminalizes the sale, transport or possession of an unfinished firearm frame or receiver with no serial number. It also criminalizes the manufacturing or distribution of a firearm made with a 3-D printer, as well as the distribution of instructions on how to manufacture firearm components with a 3-D printer.
Anyone who already possesses an unfinished firearm frame or receiver — a component of a gun that houses the firing mechanism — with no serial number would have 90 days to comply with the law, presumably by destroying or surrendering it.
Senators rejected a proposed amendment by Minority Whip Brian Pettyjohn that would have allowed people who have homemade guns to undergo criminal background checks and obtain serial numbers for their guns from licensed firearms dealers.
Sen. David Lawson, a Republican from Marydel and a retired state trooper and former gun store owner, described the bill as “legislation looking for a problem.”
This bill is so fundamentally flawed I’m almost looking forward to seeing Gov. John Carney sign it so the lawsuits can begin.
The state is going to have a hard time defending the portion of the bill that makes it a crime to distribute instructions on how to print a gun using a 3D printer. Back in April the Ninth Circuit Court of Appeals ruled against a rule put in place during the Trump administration that was designed to block files on 3D printed guns from being shared, but I’d expect a legal challenge to focus as well on the First Amendment argument that the bill restricts the freedom of speech of those who want to share these files.
Another big problem with the bill is the fact that lawmakers specifically rejected an attempt to allow existing owners of unserialized firearms the chance to obtain serial numbers for their guns. Instead, the only option these gun owners have is to dispose of their firearm by removing it from the state of Delaware or handing it over to police. This provision is similar to magazine bans in New Jersey and California that are currently making their way through the federal court system. The California law was struck down by a trial judge; a decision upheld by a three judge panel of the Ninth Circuit, though the Ninth Circuit is rehearing the case en banc. The Third Circuit upheld New Jersey’s magazine ban, but the Supreme Court is expected to take up the case in conference in the fall.
It could be several months before the Court decides whether or not to accept the New Jersey case, but if SCOTUS does grant cert it could have a major bearing on the Delaware “ghost gun” ban. If a majority of justices finds that “dispossessing citizens of lawfully acquired property without just compensation effects an impermissible physical taking” (as the plaintiffs argue), then there’s little chance of Delaware’s new ban on unserialized firearms being upheld by the courts.
At this point, however, there’s also little chance that Gov. Carney will veto the measure. Get ready for a court fight.. and a large amount of noncompliance on the part of Delaware gun owners in the meantime.