Two weeks ago, Delaware's new "permit-to-purchase" law took effect, subjecting would-be handgun owners in the state to a new licensing scheme that requires them to take a firearms safety class with a live-fire test, submit an application to the state police, and wait up to 30 days to receive the government's permission to purchase a pistol.
The new law is being challenged in federal court, but a district court judge turned down a request by the Delaware State Sportsmen’s Association and several individual plaintiffs to halt enforcement of the law before it took effect. The plaintiffs then appealed to the Third Circuit, but on Monday the appellate court rejected their request for an expedited injunction as well.
“The trial court’s denial of injunctive relief did not include an analysis of all the reasons the status quo results in a de facto ban, nor did it address the validity of the permit requirement itself, both of which are violations of the Second Amendment,” the plaintiffs argued in their appeal of the District Court decision.
“Challengers will suffer imminent actual harm—such as the risk of injury due to an inability to use a handgun in self-defense—without an injunction to prevent enforcement of the Permit Bill,” the plaintiffs went on to say.
In their response on behalf of the state, Delaware’s Department of Justice argued that the plaintiffs’ claim that the Permit to Purchase law constituted a “de facto ban” was unfounded.
“In reality, [Delaware] had already implemented the necessary ‘infrastructure’ well before Plaintiffs filed their Complaint and had already issued over 200 permits by the time Defendants filed their response to the Proposed Order, as evidenced by a declaration and copies of redacted issued permits,” the DOJ wrote in their opposition to an expedited relief.
As of the date of their opposition’s filing in the appellate court, Nov. 19, the DOJ said Delaware had issued over 300 permits.
State officials also refuted the plaintiffs’ claims that there was potential harm due to the possibility of a permit not being issued within 30 days, which the Permit to Purchase law mandates. The DOJ said most permits are issued to applicants within 1-3 business days.
The U.S. Court of Appeals ordered Delaware to file a supplemental briefing to outline their opposition to the expedited injunctive relief by Nov. 24. The plaintiffs were given until Nov. 25 to file a response.
On Dec. 1, the U.S. Court of Appeals for the Third Circuit issued an order denying the plaintiffs’ motion for expedited injunctive relief, saying the appeals case would continue in “the ordinary course” and leaving the Permit to Purchase law in effect while the legal challenges continue.
Attorney Thomas Neuberger, who is one of the plaintiffs in the case, says there's a silver lining in the Third Circuit's decision. In a statement, Neuberger noted that the case has not been sent back to the district court, but instead the plaintiffs "now have a full appeal pending, before 3 judges, of the denial of an injunction to stop the new law, and on the merits of the dismissal of most of the plaintiffs and me in the second lawsuit."
Neuberger added, "This is a victory. Instead of another 18 months or more in the DE District Court system and then the right to a long appeal, we now have a new bite at the apple before three disinterested appeal judges and it is being processed immediately."
I admire Neuberger's fighting spirit, but let's be honest here. A win would have been the Third Circuit granting the expedited injunctive relief he and other plaintiffs were asking for, and that didn't happen. It may be a net positive that the appeal wasn't turned away entirely, but a full appeal wouldn't have been necessary if the appellate court decided to issue the injunction and halt enforcement of the permit-to-purchase law.
I'm watching the Delaware case closely, in part because anti-gun lawmakers in Virginia, where I live, are already making noise about creating a permit-to-purchase system of their own in the Old Dominion. These laws have become one of the new favorite restrictions for the gun control lobby since the Supreme Court allowed Maryland's permit-to-purchase law (known as a Handgun Qualification License) to stand by denying cert to a lawsuit in January of this year, and we're likely to see other blue states introduce their own permit-to-purchase measures in the new year.
Part of the problem is that the Court held in Bruen that "shall issue" licensing laws for carrying firearms are presumptively constitutional, and some lower courts like the Fourth Circuit have assumed that the same must be true for licenses to keep a gun in the home. If you can license the right to bear arms, why not the right to keep them as well?
The plaintiffs here, though, are arguing that Delaware's permit-to-purchase system isn't really "shall issue", but instead is an "arduous and discretionary" scheme that allows the Director of the State Bureau of Identification to reject any application if they deem the applicant unqualified. The law requires the SBI to contact the local law-enforcement agencies of the every county or municipality in which the applicant has resided in the past five years and "inquire as to any facts and circumstances relevant to the person’s qualification for a handgun qualified purchaser permit." If the SBI Director believes there is probable cause to believe the applicant poses a danger of causing physical injury to self or others by owning, purchasing, or possessing firearms, a permit can be denied... or if one has already been granted, revoked.
That sounds pretty discretionary to me. The law doesn't have any explicit language laying out what would give the official probable cause to decide someone's too dangerous to own a handgun even if they've passed a background check and the mandated live-fire training. In fact, under this law the Director can deny a permit to purchase a handgun to someone who lawfully possesses rifles and shotguns, which seems like the essence of a discretionary policy to me.
Hopefully the plaintiffs will prevail as the case progresses, but for the time being Delaware residents are going to be subjected to the subjective opinion of the Director of the State Bureau of Investigation when it comes to exercising their right to purchase a pistol and keep it in their home.,
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