December 26, 2017 Practice Points

Delaware Supreme Court Hands Down Powerful Defense of Self-Defense Rights Outside the Home

The court's analysis has garnered the great interest from Second Amendment litigators.

By John Pierce – December 26, 2017

In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court held that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

While the facts in the Heller case did not require the court to directly address the issue of arms outside the home, many states have constitutional provisions with even broader protections. Article I, Section 20 of the Delaware Constitution is an excellent example.

Following Heller, in Doe v. Wilm. Hous. Auth., 88 A.3d 654, 665 (Del. 2014), the Delaware Supreme Court held that “[o]n its face, the Delaware provision is intentionally broader than the Second Amendment and protects the right to bear arms outside the home, including for hunting and recreation [and] . . . defense of self and family in addition to the home.”

The holding in Doe set the stage for the court’s December 7, 2017, ruling in Bridgeville Rifle & Pistol Club, Ltd., et al. v. Small, et al. In this case, the appellants were challenging regulations promulgated by the state’s parks and forest departments that effectively banned most firearms in state parks and forests.

The court noted that the appellants were not seeking “unregulated” or “unfettered” access to firearms within state parks and forests, nor were they challenging the statutory scheme that the Delaware General Assembly has enacted. Rather, they were merely seeking to have firearms’ possession and transportation within state parks and forests be subject “to the same requirements and limitations that already apply [elsewhere] throughout the State.”

The court ultimately found the bans to be invalid, holding that “unelected officials from the State’s parks and forest departments, whose power is expressly limited [cannot] ban (except for a narrow exception for hunting) the possession of guns in state parks and forests in contravention of Delawareans’ rights under the State’s constitution.”

However, it was the court’s analysis in reaching this holding that has garnered the greatest interest from Second Amendment litigators. In addressing the arguments of the superior court, which had upheld the regulations, the supreme court noted that the superior court had asserted “the need to respond to a threat with a firearm is diminished when firearms are prohibited in the area.” The court found that this assertion was “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.”

This quote will almost certainly feature prominently in future litigation where similar arguments are made in support of regulations being “substantially related to achieving the important governmental objective of keeping the public safe.”


John Pierce is with The Law Office of John Pierce in Bristol, Virginia.


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