Sunday, December 25, 2016

Delaware Judge Holds that State Constitution Does not Apply in State Parks, Forests


Judge T. Henley Graves


A year ago, the Bridgeport Rifle and Pistol Club filed suit against the state against the Department of Agriculture and the Department of Natural Resources and Environmental Control. The suit is designed to enforce Article 1, Section 20 of Delaware's Constitution. From ballotpedia.com:
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.
The departments mentioned ban the possession of guns from public parks and state forests, unless the person is actually hunting with a valid hunting license.
From the seafordstar.com:
This is not the club s first involvement in a lawsuit. It filed a brief in support of a 2010 complaint by two residents against the Wilmington Housing Authority and the authority s ban on guns in common areas of its public housing complexes. In 2014, the Delaware Supreme Court decided that the ban was unlawful under Delaware s Constitution. Also unlawful, the court decision said, was the authority s requirement that residents who owned guns have any permit or license available at all times for inspection. 

We were successful in ensuring that people who live in public housing have the same rights as everyone else, Hague said.
Winning the current suit would benefit people who travel to Sussex County to participate in shooting competitions at the rifle club, Hague said: We have a lot of competitors who like to go camping. They like to come down for a weekend, attend a match and then camp at Trap Pond State Park.
It would seem the suit is a slam dunk. The constitutional provision is clear. Precedent has been established by a previous state supreme court decision. But the local Superior Court Judge was not convinced.
From wral.com:
On Friday, a Superior Court judge ruled in favor of the state, saying the regulations do not violate Delaware's Constitution.

"The regulations do not run afoul of the Delaware Constitution, defendants were not pre-empted by the General Assembly in enacting the regulations, and defendants did not exceed the scope of the authority granted to them by statute in promulgating the regulations" wrote Judge T. Henley Graves.


The logic here seems to be that the regulatory agencies were not stopped from violating the state constitution by the legislature, when the regulations were passed. Therefore the agencies did not exceed the authority given to them by the General Assembly?

Huh. What? The judge explained further:
The judge concluded that the state agencies have an important governmental objective of keeping the public safe from the potential harm of firearms in parks and forests.
So, a constitutional provision that guarantees the right to protect yourself with arms, can be overridden by a regulatory agency because the agency has an important government objective of "keeping the public safe from the potential harm of firearms"?

The Bridgeville Rifle & Pistol Club's facebook page, and the Delaware State Sportsmen's Association's webpage do not have any response to the judge's decision yet.

Judge Graves may believe the decision is up to a higher level court than his. I expect that an appeal will be filed.

  ©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included. 

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9 comments:

Paul Weber said...

Translation: "You may not challenge a law until you are harmed by it. If you don't challenge an un-Constitutional law promptly then it can permanently violate the Constitution."

Anonymous said...

The only problem with this judges ruling is that it is not a states rights or states constitutional issue. it is a federally guaranteed united states constitutional guarantee. the state has no written authority to infringe on the second amendment rights any where. Now this case will have to be appealed to the united states supreme court after the new justice is appointed.

Anonymous said...

The reality here is that the Second Amendment is what controls. None of the state legislators or the executive "rule makers" can tread onthis federally enumerated Constitutional individual incorporated right.

The judge is right and wrong at the same time. He is correct, the state legislature does not and cannot control - likewise, the executive cannot control either. The right of the PEOPLE is what controls, and it SHALL NOT be infringed.

This stuff isn't very hard to figure out when one is willing to relent before the God's honest truth. It only becomes complicated to the point of abject idiocy when folks like this judge try to start with the premise that government HAS to control somehow....cuz cuz cuz well government has to control somehow!

Anonymous said...

Paul Weber: Note your misconception in that time does not change a law or a constitution. without looking at your clock or calendar the words actually written in a law are what must be enforced any law that has no foundation by a constitution to exist is not a law.

Anonymous said...

The government's duty is to comply with the limits placed on it by the constitution and use only the delegated authority in it. the constitution exist to control the government. government was not created to control the people. the very purpose of the constitution is for the people to control the government.

Anonymous said...

I was stopped by a Nevada Highway patrol once. he said you seem to be a little nervous. I said yes I always get nervous when stopped by a cop. he said why is that I said because I have seen too many ass holes pined on a badge. He said well I'm going to have to impound your trailer because your tags are ten years out of date. I said you best call in first. he said why I said because Arizona tags are permanent. He said I have never heard of anything like that. He called in and came back and said well have a nice day good by.

Pat H. said...

If the state constitution doesn't apply, then the state government cannot assert authority in those parks and forests. The state constitution created those agencies, without the state constitution those agencies can't exist.

Dean Weingarten said...

The judge is not interested in logic. He is interested in power. Your comment is perfectly logical. He would likely look at it and say "How quaint". This is 2016. We are far beyond such simplistic views of government.

This means that he has no concept of limited government. He should be impeached and disbarred, but he knows he is safe, because he is doing the bidding of the Deleware establishment.

Anonymous said...

These are the kinds of things that cause civil disobedience and get establishment people hurt. these are the kinds of things that explain the Trump win. enough of these kinds of things and the lid will blow off and we will see the establishment destroyed. we have left it up to government to do the impeaching when it should be required but government has learned to protect its self by ignoring the laws and doing as it damn well pleases. If trump had not won the election I think it would have been the last straw. corrupt judges like this one would be decorating lamp posts or wearing the latest fashion in tar and feathers.