Delaware Supreme Court takes up Under 21 Firearms Ban
There is really much to say about this case, DE Department of Safety and Homeland Security, et al. v. Birney, et al., or much doubt as to what the Delaware Supreme Court will decide. The only real question is what the decision will say, as well as what the dissent (if any) will say.
The Plaintiffs do not challenge the state’s ban on the possession of firearms by persons under 21 years of age as violating the Second Amendment to the United States Constitution. Their claim is that the law violates the Delaware Constitution.
A state law can violate the Federal Constitution while, at the same time, not violate a state constitution.
Article I, Section 20, of the Delaware state constitution was enacted in 1987. It states, “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.”
If a majority of the State Supreme Court justices take the position that the United States Supreme Court says it has taken, that the Constitution means what it meant when it was enacted, then the State Constitution protects the right of persons under the age of 21 to keep and bear arms. After all, the Delaware statute banning the possession of firearms was not enacted until June of 2022, which was three and a half decades after the State Constitutional Amendment was enacted, and one week after the United States Supreme Court published its decision in New York State Rifle and Pistol Association Inc., v. Bruen.
It would be a curious thing if the Delaware Supreme Court were to hold that the state legislature can overrule its state constitution. But then again, inferior courts frequently overrule the United States Supreme Court’s interpretations of our Federal Constitution, and so, perhaps not so curious after all.
The highlights of the oral argument were when the Plaintiffs’ attorney was asked why there was no Second Amendment claim, and when the state’s attorney clutched her pearls and proclaimed that persons under the age of 25 are merely infants with underdeveloped brains, and so should not be allowed to possess firearms.
To be fair, Delaware voters, regardless of age, prove in every election year that they should not have the right to vote, let alone be allowed to possess firearms.
The Third Circuit Court of Appeals has jurisdiction over the State of Delaware. Unless the United States Supreme Court vacates the Third Circuit’s decision that persons under the age of 21 have the right to keep and bear arms, and to openly carry them in public during a declared state of emergency, then we are one Federal lawsuit away from enjoining enforcement of the Delaware under 21 ban as being in violation of the Second Amendment right to keep and bear arms.
But given that my lawsuit, Charles Nichols v. Gavin Newsom et al, filed in November of 2011, is the first and only Federal lawsuit ever filed that challenges California’s ban on openly carrying loaded and unloaded rifles and shotguns, as well as handguns, and given that the loaded Open Carry ban was enacted in July of 1967, there might not be a Federal lawsuit on the horizon.
Or even on the dark side of the moon.