The Volokh Conspiracy
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Second Amendment Roundup: Delaware's Gun Ban Heats Up
Third Circuit briefing is ongoing in challenge to rifle ban signed into law just a week after Bruen.
On June 30, 2022, just a week after the Supreme Court decided the Bruen case, Delaware Governor John Carney signed into law a ban on "assault weapons" and standard-capacity magazines, effective immediately. Apparently he didn't get the memo that a ban on firearms in common use is off the table constitutionally.
Delaware plagiarized California's 1989 findings that it was imperative to ban any gun that is not a "sports or recreational firearm." The state ignored the Delaware Bill of Rights guarantee of the right to bear arms "for the defense of self, family, home and State," and disregarded Heller's admonition that self-defense is "the central component of the right itself."
Delaware copied a definition from Connecticut that criminalizes a rifle depending on where one's fingers are placed when firing, and Maryland's long list of banned rifles, such as the Colt AR-15. Curiously, that list excludes AR-15 HBAR (heavy barrel) rifles, unless made by Bushmaster – any semiauto rifle made by that firm is banned.
The U.S. district court for the district of Delaware's denied a motion by challengers for a preliminary injunction on the basis that they are not likely to prevail on the merits. The case is Delaware State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Security. Appeal briefs are now being filed, which includes an amicus curie brief on behalf of the Delaware Association of Second Amendment Lawyers by yours truly and co-counsel Dan Peterson. Here are some of our arguments.
Heller held that arms that are in common use for lawful purposes – those chosen by the American people – are protected by the Second Amendment. That rule should resolve any gun ban without further ado. Bruen's methodology, which evaluates restrictions by reference to the text of the Second Amendment and historical analogues, applies to regulations such as about where guns may be carried, not to outright bans on possession, where the common-use test applies.
The district court agreed that rifles like the AR-15 are in common use, which should have have conclusively supported a preliminary injunction. Instead, the court reverted to means-ends scrutiny, which Bruen flatly rejected. The court found such rifles to be "exceptionally dangerous," which it substituted for the Supreme Court's test of "dangerous and unusual." But it did not explain why the banned features make the rifles so dangerous. It claimed that "pistol grips and barrel shrouds" supposedly "increase their lethality," but offered no clue why.
Consider the verboten feature of a semiautomatic rifle with a grip that allows a finger (in addition to the trigger finger) to be below the action "when firing." Are we to believe that a rifle is more lethal if one's fingers are in this position rather than in some other position "when firing"? The very idea that one's finger placement removes an arm from Second Amendment protection trivializes the constitutional right.
The suggestion that pistol grips are associated with "lethality" is belied by the fact that identical pistol grips are found on single-shot rifles (which hold only one round), bolt-action rifles (which require manual reloading for each round), and even on air guns used in Olympic competition.
The court claimed that "an assault rifle bullet travels at multiple times the velocity of a handgun bullet," but there is no such thing as "an assault rifle bullet." Bullets such as the .223 caliber may be fired in any rifle of that caliber, regardless of the rifle's features. The relatively low-powered .223 is not even allowed for deer hunting in Delaware and a number of other states.
The court identified "rate of fire" as another dangerous characteristic. But a semiautomatic rifle with, e.g., a pistol grip, fires no faster than a semiautomatic rifle without one, and Delaware does not ban semiautomatic rifles without the outlawed features.
The district court placed great weight on what it considered to be historical analogues to justify the ban. But the claimed analogues turn out to be the restrictions in a minority of antebellum states on the concealed carry of pistols, Bowie knives, clubs, and the like. These laws were upheld because open carry was allowed, so they cannot be precedents for a ban on mere possession of an arm today.
When these early laws went too far, such as Georgia's 1837 ban on carrying a pistol openly or concealed, they were invalidated. The Georgia Supreme Court, in Nunn v. State, declared that prohibition violative of the Second Amendment, Heller approvingly cited Nunn when it commented, "Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down."
There is a historical twin, though, to Delaware's ban on mere possession: the ban on possession of arms by slaves and free persons of color in the antebellum South. That ban was defended on grounds that African Americans were not citizens and had no right to keep and bear arms. Delaware's ban is exactly what the Second and Fourteenth Amendments were understood to prohibit.
Delaware punished with whipping "any negro or mulatto slave" who would "carry any gun, pistol, sword, dirk, or other unusual or dangerous weapon," and forbade "free negroes and free mulattoes to have, own, keep, or possess any gun, pistol, pistol, sword or any warlike instruments," except that a discretionary permit could be issued to possess a gun or fowling piece. Delaware's Court of General Sessions justified the ban applicable to free blacks on the "police power."
Similar slave codes were enacted and upheld in other states. Georgia's Supreme Court held: "Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office." The Virginia Supreme Court conceded that the restrictions on the right of free blacks to bear arms were "inconsistent with the letter and spirit of the Constitution, both of this State and of the United States." And North Carolina's Supreme Court upheld a similar gun ban because "the free people of color cannot be considered as citizens."
After slavery was abolished, the black codes replaced the slave codes. Mississippi prohibited a freedman from having a firearm, Bowie knife, or other weapon without a license. That was the first state law noted by the Supreme Court in McDonald v. Chicago as typical of what the Fourteenth Amendment was meant to prohibit.
So the slave codes provided the only close analogue to Delaware's current ban on possession of "assault weapons," and it violates the Second and Fourteenth Amendments.
Finally, as I have previously posted, if analogues are to be consulted, the relevant time is around 1791 when the Second Amendment was adopted, not 1868 when the Fourteenth Amendment was ratified. Everytown for Gun Safety (sic) has been filing cookie-cutter amicus briefs in various Second Amendment cases arguing for 1868, and then finds alleged analogues through the late 19th and early 20th centuries – which Bruen said is too late.
Cases from the courts of appeals that suggest 1868 is the correct year are based on a single error in the Seventh Circuit's Ezell case, which was later corrected. Every time the Supreme Court has consulted history to determine the original meaning of a provision of the Bill of Rights, it has always looked principally to the Founding in 1791, never primarily to 1868. For the definitive analysis on this issue, see Mark Smith's "Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868."
Changing the goal post for the meaning of Bill of Rights guarantees to 1868 would require a radical upset of the established meaning of every provision from the First through the Eighth Amendments. That just isn't going to happen. It shouldn't happen only for Second Amendment rights, either, because as the Supreme Court has made clear the right to keep and bear arms is not a "second-class right."
