Delaware sued over sweeping new gun ban, more lawsuits to follow

In the wake of the shootings in Buffalo and Uvalde, Democratic lawmakers in Delaware approved three new gun control laws aimed directly at legal gun owners; a ban on magazines that can hold more than 10 rounds of ammunition, a ban on gun sales to adults under the age of 21, and an “assault weapons” ban targeting some of the most popular and commonly-sold firearms in the country.

Now the Delaware State Sportsman’s Association has filed the first of what they anticipate will be three legal challenges against the new laws, this one focusing specifically on the state’s new gun ban.

DSSA has been protecting and defending the rights of Delaware’s hunters, sportsmen and women, and law-abiding gun owners since 1968. This is not the first time we have challenged unconstitutional and illegal actions of government officials in court, and it will not be the last,” Delaware State Sportsmen’s Association President Jeff Hague said. “We promised our members and the people of Delaware that if HB 450 ever became law we would challenge that law and today we kept that promise.”

According to the DSSA, this case filed in U.S. District Court calls for HB 450 to be declared in violation of not only someone’s constitutional right to keep and bear arms that is guaranteed in the Delaware and United States Constitutions, but other constitutional provisions as well: “the Commerce Clause, the Due Process Clause, the Equal Protection Clause and the “takings” clauses of both the Delaware and United States Constitutions.”

Like virtually every gun control case that’s been filed over the past month or so, the DSSA lawsuit specifically cites the Supreme Court’s recent decision in Bruen, arguing that the state legislature relied on an outdated opinion by the Fourth Circuit Court of Appeals upholding a similar gun ban approved by Maryland lawmakers nearly a decade ago while ignoring the more recent decision by SCOTUS (which also vacated that Fourth Circuit decision and remanded the Maryland “assault weapons” ban back to the Fourth Circuit for a do-over based on the text, history, and tradition test laid out in Bruen).

Drawing from this historical tradition, Bruen and Heller assert that the Second Amendment protects the carrying of weapons that are those “in common use at the time.”

Indeed, for this reason, “[j]ust as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

What’s more, the plain text of the Delaware Constitution affords even broader rights to bear arms than the Second Amendment, providing that “[a] person has the right to keep and bear arms for the defense of self, family, home, and State, and for hunting and recreational use.”

… The firearms at issue, in this case, deemed “assault weapons” under the Regulatory Scheme, are the sorts of bearable arms in common use for lawful purposes that law-abiding people possess at home by the millions. And they are, moreover, exactly what they would bring to service, e.g., militia duty and repelling violent mobs, should that be necessary.

Plaintiffs and their members have a constitutional right to make use of common firearms, deemed “assault weapons” under the Regulatory Scheme, for effective self-defense and not to be disarmed by the Regulatory Scheme and its enforcement by Defendants.

Assuming ordinary citizens are not disqualified from exercising Second Amendment rights and the rights enumerated in the Delaware Constitution, the State must permit them to keep and bear common firearms, deemed “assault weapons” under the Regulatory Scheme, for lawful purposes.

The right to keep and bear common firearms, deemed “assault weapons” under the Regulatory Scheme, guaranteed under the Bill of Rights cannot be subjected to laws and regulations that prohibit ordinary, law-abiding citizens from keeping and bearing common firearms–particularly when such schemes, like the Regulatory Scheme, place these citizens under constant threat of criminal sanction for violating them.

The DSSA points out that even though the Second Amendment takes these “policy choices off the table,” the state of Delaware is “completely shutting out ordinary, law-abiding citizens from exercising their rights in the State” – and in doing so, they’re making a “policy choice” not allowed under the U.S. and Delaware state Constitutions.

Gun control activists argued for decades that the Second Amendment didn’t protect the right to own a handgun. They lost that fight. They’ve argued that the Second Amendment doesn’t protect the right to bear arms in self-defense. They lost that argument too, and soon they’re going to lose the argument that commonly-owned firearms like the AR-15 fall beyond the scope of the Second Amendment’s protections. There are multiple lawsuits challenging “assault weapons” bans from California to Delaware, and it won’t be too long before one of these cases reaches the Supreme Court for review. There’s no guarantee that the Court will accept any given case, of course, but given justices’ frustrations with how the lower courts have abused and misread the Heller and McDonald decisions my guess is that if the appellate courts continue to play games with our right to keep and bear arms there’ll be at least four justices eager to grant cert and rebuke those judges who still refuse to acknowledge the fundamental importance of our Second Amendment and the rights that it protects.