Why Should Delaware Care?
For nearly two years, a variety of semi-automatic weapons and high-capacity magazines have not been available for sale in Delaware. An upcoming court ruling could reinstate those sales, but state officials argue that would increase the risk to the public.
Federal appeal judges in Philadelphia on Monday expressed skepticism that Delaware gun enthusiasts were “irreparably harmed” by the state’s two-year ban on so-called “assault weapons” and high-capacity magazines.
But lawyers for a Delaware gun group pushed back that the bar for constitutional rights was purposefully high.
The panel of the federal Court of Appeals for the Third Circuit was hearing an appeal of a case filed by the gun rights advocacy group Delaware State Sportsmen’s Association (DSSA) that was denied a preliminary injunction by the U.S. District Court of Delaware last year.
Judges Stephanos Bibas, Jane Roth and Tamika Montgomery-Reeves needled counsel on both sides over an hour-long hearing on the case, expressing concerns about the rising number of mass shootings and exploring the limits of constitutional law.
The background
In June 2022, Delaware passed a ban on a variety of semi-automatic rifles that it termed “assault rifles,” including versions of the popular AR-15 and AK-47 models, along with magazines that hold more than 17 bullets.
Although the guns are popular with firearm enthusiasts, primarily for target shooting, the laws came weeks after mass shootings at a school in Uvalde, Texas, and a grocery store in Buffalo, N.Y., where such weapons were used to kill dozens of people. Delaware became one of the 10 states to have an assault weapon ban on the books when it was approved.
Gov. John Carney signed the bills just one week after the U.S. Supreme Court handed down one of the most consequential rulings on gun control in its history with N.Y. State Rifle & Pistol Association v. Bruen though. In that divided ruling, the Supreme Court said that citizens have the right to carry firearms outside the home and that states must use clear guidelines for denying someone that right.
Importantly, majority opinion author Justice Clarence Thomas also wrote that gun laws should be considered in “historical tradition of firearm regulation” rather than the public good – an assertion that has led many Second Amendment advocates to challenge regulations across the country.
Four months after the Delaware law’s passage, the DSSA sued the state to freeze its enforcement while a court considered whether it was constitutional. In March 2023, U.S. District Court Judge Richard Andrews denied that request for an injunction, opining that the plaintiffs could acquire other firearms for self-defense and that the historical context supported the regulation of semi-automatic weapons.
Jennings backs the laws
In a press conference before the hearing, Delaware Attorney General Kathy Jennings expressed confidence that the Court of Appeals would also support the ban.
“The gun lobby lost this fight in federal district court and we are confident in our arguments before the court today. These laws are not just overwhelmingly popular, even under Bruen; they’re also clearly constitutional,” she said. “The idea that the founders envisioned anything like an AR-15 when they drafted the Constitution is delusional. These guns, originated as weapons of war, were marketed based on their military category, and have emerged as the clear weapon of choice for mass shooters at a time when guns are the leading cause of death for children in our nation. The gun lobby’s continuing pursuit of blood money as appalling and flat out wrong on the merits.”
Jennings’ office was supported by the office of New Jersey Attorney General Matt Platkin, who filed an amicus brief in support of Delaware’s arguments. A ruling for the plaintiffs could impact New Jersey’s similar bans.
Lawyers argue the case
Lawyers for the gun owners argued that the case was similar to those seeking First Amendment protections, in that any infringement on the right constituted an irreparable harm.
“Every second of every day that Delaware’s law is enforced, it is preventing my plaintiffs from exercising their Second Amendment rights,” said John Ohlendorf, counsel for the plaintiffs.
Rebutting assertions from the state that semi-automatic rifles are rarely used for self-defense and therefore more readily eligible for regulation – Delaware claims less than 1% of self-defense shootings are by such weapons – the plaintiff counsel said that self-defense should not be constrained to firing a weapon.
“If you took the state’s concept and asked how often a particular arm is actually fired for self defense, I’m not sure we’d end up with any firearm protected by the Second Amendment, because fortunately, most people very rarely have to fire any type of firearm at would-be attackers,” said Erin Murphy, a lawyer from Clement & Murphy.
Meanwhile, Delaware’s counsel led by Ross Aronstam & Moritz partner David Ross argued that the plaintiffs already owned firearms necessary for self-defense and could not prove “irreparable harm.” Furthermore, a history of prohibitions and bans on particular weapons set a precedent under Bruen’s terms that bans like those from Delaware were constitutional.
Judge Roth noted at the end of the hearing that the historical context weighed on her mind.
“It’s only recently in the last 20 years that semi-automatic weapons used by people in mass shootings can inflict as much damage and death as possible very quickly. … So don’t we have to consider don’t have to consider the present use or the change of using these weapons?” she said.
Murphy said that they were empathetic to those concerns, but that the Founders considered that in writing the Constitution.
“What the Supreme Court said is, ‘We will take all of that as a given, we are not going to dispute that the problems you are talking about are real, but the Second Amendment already struck the balance in favor of protecting the rights of the law-abiding citizens to protect themselves against the people who would use arms to cause them and their loved ones harm,’” she said.
What’s next?
The Third Circuit will issue its ruling on the case in the next few months, but it’s unlikely that the case will end there. An appeal of that decision could reach the Supreme Court, and possibly combined with challenges to similar laws in other states.
“We’ll cross that bridge if we get there, but I can tell you that Delaware will never give up,” Jennings said when asked if she was concerned about the latest rulings from the high court. “Even in the wake of the Bruen decision, which has been one of the most pro gun rulings support has ever issued, federal courts across the country have repelled nearly 90% of gun safety cases brought before them. The U.S. Supreme Court will be the ultimate decider, but our briefs make it clear and our oral argument make it clear that under Bruen, these laws are nevertheless constitutional.”
The patchwork of state bans in place today is due to Congress’ inaction on a federal law. For a decade, assault weapon sales were banned nationwide but the law expired in 2004 and has not been renewed.
Jennings said that she would welcome a federal statute that bans assault weapons and high-capacity magazines, which would also help to cut down on illegal gun trafficking. Platkin noted that more than 80% of guns used in crimes in New Jersey came from outside of the state, typically from ones with looser gun restrictions.
“We make every effort to work collaboratively across state lines to disrupt gun trafficking rings that are bringing firearms into our state … but it’s made that much harder by the fact that we don’t have federal legislation,” he added.