Saturday, December 16, 2017

Delaware Supreme Court Upholds Right to Bear Arms

The Supreme Court of the State of Delaware has upheld the right to keep and bear arms provision of the State Constitution, which was enacted in 1987, passing through two separately elected legislatures.

The case was a challenge to the state ban on the possession of weapons in state parks and forest.  In Bridgevile Rifle & Pistol Club v. Small, the court ruled that a ban on the possession and carry of guns, enacted by unelected bureaucrats, was unconstitutional under the Delaware Constitutions Article I, Section 20. From
This appeal concerns guns and, as such, has attracted numerous amici curiae raising politically fraught questions concerning gun rights.1 However, at its core, this case raises straightforward questions of Delaware constitutional and administrative law. We are asked whether unelected officials from the State’s parks and forest departments, whose power is expressly limited, can 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. Clearly they cannot. They lack such authority because they may not pass unconstitutional laws, and the regulations completely eviscerate a core right to keep and bear arms for defense of self and family outside the home--a right this Court has already recognized. As such, the regulations are unconstitutional on their face. Thus, we REVERSE for these reasons and those that follow.
Here is Article I, Section 20 of the Delaware Constitution. The meaning is clear:

“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.”
It is interesting to see the logical pretzels the dissent turns in attempting to keep the ban in place. They amount to a number of assertions of Progressive dogma.

Essentially they are:
  • There are no pre-existing natural rights to arms.
  • The State never explicitly granted a right to arms in its Constitution, early on, so any legislative acts done before the right was added are grandfathered in.
  • The legislature never really intended Section 20 to mean what it says.
  • England restricted the right to arms in some times and places, so we can do so as well.
  • The Second Amendment never applied to the States until recently, so any reasoning based on Heller and McDonald does not apply.
  • Nobody challenged the law before, so it must be Constitutional
The dissent drones on for dozens of pages. But it all comes down to the same old Progressive doctrines: the state can do what it wants, and guns are bad.

It is sad that two of five Delaware Supreme Court Justices are willing to ignore the clear words of Delaware's constitution to obtain a result they want. But it is basic Progressive practice and dogma.

It is heartening that three of the five Justices upheld the clear meaning of Article I, Section 20.

Only six states do not have some provision in their state constitutions that protect the right to keep and bear arms. Those states are California, Iowa, Maryland, Minnesota, New Jersey, and New York.

California, Maryland, New Jersey and New York are, arguably,  the four states that most egregiously infringe on the exercise of Second Amendment rights.
State constitutions provide another layer of protection for the right to keep and bear arms.  States, in a federal system, serve as part of the checks and balances that limit government power in the United States.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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ExpatNJ said...

Is this the state of Delaware in the United States you're talking about here? You know: the one in the very liberal, very anti-2A northeast, only a stones-throw from the District of Criminals? I can't believe it!

Well, except I do ...
[a little off-topic, yet insightful]

"Delaware judge denies right to appeal photo tickets; court denies right to appeal red light camera ticket because law says fine is only $100”

Anonymous said...

A camera cant make a complaint and a still photo cant tell how fast you are going, years ago a case concerning a radar gun. the gun was calibrated in court then pointe out the window of the court room to test on a passing car. 35 on the nose then pointed at the judges desk it was doing 55.

Anonymous said...

The second amendment is National reciprocity period. The tenth amendment guarantees the second amendment the supremacy clause guarantees the bill of rights.

Anonymous said...

The court was logical. The liberal talking points were absolutely stupid, as usual.

lbrac said...

Perhaps the two judges who ruled for the exclusion of firearms in parks etc. should be impeached. It could be on the grounds that they are illiterate, and incapable of comprehending what a law, constitution, or any written issue means.