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Bridgeville Rifle & Pistol Club, Ltd. v. Small

Supreme Court of Delaware

December 7, 2017


          Submitted: September 13, 2017

         Court Below: Superior Court of the State of Delaware C.A. No. S16C-06-018 (S)

         Upon appeal from the Superior Court. REVERSED.

          Francis G.X. Pileggi, Esquire (argued), and Alexandra D. Rogin, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware, for Appellants.

          Ralph K. Durstein, III, Esquire (argued), and Devera B. Scott, Esquire, State of Delaware Department of Justice, Dover, Delaware, for Appellees.

          Myron T. Steele, Esquire and Jesse L. Noa, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware, for Amicus Curiae, Members of the Delaware General Assembly.

          Thomas D. Shellenberger, Esquire, Law Office of Thomas D. Shellenberger LLC, Wilmington, Delaware, for Amicus Curiae, Pink Pistols.

          Brian Gottesman, Esquire, Berger Harris LLP, Wilmington, Delaware. Of Counsel: Dan M. Peterson, Esquire, Dan M. Peterson PLLC, Fairfax, Virginia, for Amici Curiae, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, and Retired Delaware Police Officers Hosfelt, Smith, Deputy, Egolf, Monaghan, Briggs, Roe, Brode, Capitan, Konnick, and Guittari.

          Jeffrey S. Goddess, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington, Delaware. Of Counsel: Paul B. Carberry, Esquire, White & Case LLP, New York, New York, for Amicus Curiae, The Law Center to Prevent Gun Violence.

          Stephen E. Jenkins, Esquire and Marie M. Degnan, Esquire, Ashby & Geddes, Wilmington, Delaware. Of Counsel: David H. Thompson, Esquire, Peter A. Patterson, Esquire and Haley N. Proctor, Esquire, Cooper & Kirk, PLLC, Washington, D.C., for Amicus Curiae, National Rifle Association of America, Inc.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ and TRAYNOR, Justices, constituting the Court en Banc.


         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.

         Appellants challenge two regulations adopted by two different State agencies that result in a near total ban of firearms in Delaware's state parks and forests. Appellants are two organizations, namely the Delaware State Sportsmen Association and the Bridgeville Rifle & Pistol Club, Ltd., along with several of their individual members who wish to carry firearms on these State properties. They seek a declaratory judgment that the regulations are unconstitutional: they contend that these regulations compromise their fundamental rights under Article I, Section 20 of the Delaware Constitution, which provides: "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."[2]

         Although federal courts are still grappling with whether there exists a Second Amendment right to carry a firearm outside the home, our Court settled the issue under our own constitution in our unanimous, en banc opinion in Doe v. Wilmington Housing Authority, by holding that, "[o]n its face, the Delaware provision is intentionally broader than the Second Amendment and protects the right to bear arms outside the home, including for hunting and recreation."[3] We stated that, though not unlimited, Section 20 protects a core right of "defense of self and family in addition to the home" (as all parties here concede).[4]

         But despite this constitutional requirement, the first of the challenged regulations, Delaware's Department of Natural Resources and Environmental Control ("DNREC") Regulation 9201-21.1, provides:

It shall be unlawful to display, possess or discharge firearms of any description, air rifles, B.B. guns, sling shots, or archery equipment upon lands or waters administered by the Division, except with prior written approval of the Director.[5]

         "Division" is defined as DNREC's Division of Parks and Recreation ("Parks Division"), responsible for more than 23, 000 acres of Delaware property ("State Parks").[6] Section 21.3 provides that, "[n]otwithstanding subsection[] 21.1 [above] . . . hunting may be permitted in certain areas at times authorized by the Division . . . [and] shall be in accordance with State and Federal laws, rules and regulations."[7] Breach of Section 21.1 is classified as a class D environmental violation, punishable by a fine "not less than $50 nor more than $100, plus the costs of prosecution and court costs"; repeat violations within five years are punishable by fines ranging from $100 to $500 plus costs.[8] The practical implication of this regulatory scheme is the prohibition of all firearms within State Parks, except with the written permission of the Director or for hunting purposes at certain times in compliance with additional regulations.

         Similarly, Section 8.8 of Delaware's Department of Agriculture ("DOA") Hunting Rules and Regulations provides:

Target shooting is prohibited. Firearms are allowed for legal hunting only and are otherwise prohibited on State Forest lands.[9]

         In effect, the DOA, whose Forest Service oversees the approximately 18, 000 acres of Delaware's three state forests ("State Forests"), [10] also completely bans firearms with a limited exception for legal hunting, which may be pursued only if licensed and selected by lottery to use one of the specifically designated stands.[11] Violations of the DOA's State Forest Regulations, including the Hunting Rules and Regulations, are unclassified misdemeanors punishable by fines ranging from $25 to $500.[12] And, as under the DNREC regulation, because possession of firearms is banned, the DOA regulation acts as a total ban on carrying firearms for self-defense.[13]

         The Superior Court upheld the DNREC and DOA regulations (collectively, the "Regulations") as it believed that they were substantially related to achieving the "important governmental objective of keeping the public safe from the potential harm of firearms in State Parks and Forests" and that the Regulations did not impose an undue burden on Appellants' Section 20 constitutional rights.[14] But this Court rejected precisely that sort of "general safety concern" justification as insufficient to uphold such regulations in Doe.[15] And the Superior Court's determination that the Regulations do not unduly infringe on Appellants' Section 20 constitutional rights because they "remain free to hunt on State lands in accordance with the reasonable restrictions in place"[16] wrongly presumes that the ability to exercise just part of one's Section 20 rights (connected to hunting, at limited times) is an adequate substitute for eliminating the core Section 20 right of self-defense entirely in State Parks and Forests. The Superior Court's decision fails to appreciate that the ability to exercise Section 20's fundamental rights must be meaningful and that the State must preserve an avenue for carrying out Section 20's core purposes, [17]which includes the right of possession of lawful firearms for self-defense, including outside the home.[18]

         The Superior Court's opinion does not address the express Section 20 right to bear arms for self-defense except to observe that, "the need to respond to a threat with a firearm is diminished when firearms are prohibited in the area, "[19] and that Appellants' "right to bear arms to protect themselves if the need for self-defense arises is not hindered but, rather, aided in effect by the presence of the Regulations."[20] But that conclusion is premised on the questionable notion -- unsupported by reference to any evidence -- that outlawing possession of firearms in an area makes law-abiding citizens safer because criminals will, for some reason, obey the Regulations.

         The limited ability to have a hunting rifle or shotgun while engaged in a controlled hunt on state park or forest land does not fulfill -- and cannot substitute for -- the people's right to have a firearm for defense of self and family while camping overnight in a State Park or hiking in the more remote acres of State Forests (assuming compliance with all other laws governing guns). The Regulations not only unduly burden that constitutional right, but eviscerate it altogether.

         We acknowledged in Doe that the right to carry a firearm for self-defense is not absolute and may be restricted.[21] For example, the State validly prohibits felons from possessing deadly weapons[22] and limits possession of concealed deadly weapons outside the home to people who hold permits.[23] The issue here is not whether the government may regulate firearms, but whether DNREC and DOA (the "Agencies") can justify a near total ban on the right to possess a lawful gun to defend one's self and family with a firearm in Delaware's State Parks and Forests. The Agencies not only fail to justify such sweeping regulations, but fail to show that they had the authority to enact such unconstitutional regulations in the first place.[24]

         I. ANALYSIS

         It is important to understand what is -- and is not -- at issue in this appeal. Appellants do not seek "unfettered" or "unregulated" use of firearms in Delaware's State Parks and Forests. The comprehensive and nuanced restrictions imposed by our General Assembly on the right to keep and bear arms are not challenged and are not at issue.[25] Rather, Appellants seek to exercise their Section 20 rights, subject to the existing statutory scheme limiting the use of firearms. Accordingly, invalidating the Regulations would merely subject possession and carry of firearms to the same requirements and limitations that already apply throughout the State. Rather, the issue presented here is twofold: can a fundamental constitutional right be eliminated entirely, or virtually entirely, in State Parks and Forests -- not even by our elected General Assembly, but by unelected state administrators? Further, did the Agencies even have the authority to enact the Regulations?

         A. Standard of Review

         "Questions of law and constitutional claims are decided de novo."[26]

         B. The Evolution of the Regulations at Issue

         It is useful to start with an explanation of the regulations at issue.

         1. Regulating Firearms in State Parks

         The parties agree that the first version of a firearms restriction in State Parks appears in the minutes of a meeting of the State Park Commission of Delaware on April 10, 1962, when the Commission unanimously adopted Rules and Regulations for Use of State Parks.[27] Then-Section 10 provided: "No firearms or fireworks shall be possessed, displayed or discharged on any park area at any time."[28] In 1968, the Rules were amended and the provision, which moved to Section 9.01, included an exception for those with "prior written permission, "[29] without explaining how to obtain such permission and what qualified as valid permission.

         In 1969, the Rules were revised again, and the provisions concerning fireworks and firearms split into two subsections, (a) and (b).[30] Section 9.01(b) governing firearms provided: "The display or discharging of firearms upon the lands and waters administered by the Commission is prohibited without prior written permission, except in those areas designated for hunting and trapping by the State Park Commission."[31] The provision now only forbade "display or discharge[], " but not possession. Notably, the provision in Section 9.01(a), relating to fireworks, did ban possession of fireworks.[32]

         In 1977, the firearms provision moved to Section 8.04 and once again addressed possession as well as the display and discharge of firearms:

It shall be unlawful to display, possess or discharge firearms of any description, air rifles, B.B. guns or sling shots upon any lands or waters administered by the Division, except those persons lawfully hunting in those areas specifically designated for hunting by the Division, or except with prior written approval of the Director or his authorized agent.[33]

         By restoring the ban on "possess[ion]" outside hunting areas, there was now a total ban on firearms in those areas without prior written approval of the Director or his authorized agent.[34] The provision also added the requirement of lawful hunting in order to possess a firearm in the designated hunting areas. For example, Section 10.01(f) established that "[n]o firearms, other than a shotgun, may be used for hunting on areas designated for hunting within State Park lands."[35] Section 10.01(f) also prohibited all possession of "rifled firearm[s]" in State Parks.[36]

         The firearms provision did not change until 2004, when it was moved from the section governing "Conduct" to Section 24.0 regarding "Hunting, Fishing and Wildlife Management."[37] The language of the provision remained substantively unchanged other than adding "archery equipment" to the list of banned objects.[38]

         The current provision -- which is substantively the same as the 2004 version, though split in two subsections -- was finalized in March 2016.[39]

         2. Regulating Firearms in State Forests

         In contrast, DOA's Forest Service did not begin barring the possession of firearms except for hunting until 2003 -- after the addition of Section 20 to the State Constitution. The earliest Forest Service regulation concerning firearms, from approximately 1979 through 1981 (according to the Agencies), provided: "[t]he discharge or use of a firearm of any sort is prohibited, except by licensed hunters for game in season. No target shooting is permitted at anytime [sic]."[40] On its face, the regulation did not prohibit possession --only use and discharge. Regulations from 2003 prohibited target shooting and provided: "[f]irearms are allowed for legal hunting only, and are prohibited on State Forest lands from March 1 through August 31."[41] In 2006, the seasonal date restriction was eliminated such that firearms are "allowed for legal hunting only and are otherwise prohibited on State Forest lands."[42]

         C. Article I, Section 20 of the Delaware Constitution

         When it comes to interpreting provisions of our Delaware Constitution, we have previously highlighted "the significance of knowing the original text, context and evolution of any phrase that appears in the present Delaware Constitution."[43] Accordingly, we first analyze the text of Section 20 and the context that surrounds its adoption. We then explain the history of the evolution of the right to bear arms in Delaware. This historical explanation refutes any notion that the rights codified in Section 20 were not pre-existing rights or that they sprang into existence for the first time in 1987 with Section 20's passage.

         1. Section 20 - Its Text and Evolution

         We begin with the text of the Constitution. We have previously observed that "[o]n its face, the Delaware provision is intentionally broader than the Second Amendment."[44]Comparing the language of the two provisions makes this clear:

Text of Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

Text of Section 20:

“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.”

         We held in Doe that, given that "Section 20 specifically provides for the defense of self and family in addition to the home, " Section 20 "protects the right to bear arms outside the home."[45] In contrast, the United States Supreme Court recently denied a writ of certiorari in a case that directly raised the issue of whether the Second Amendment protects the right to carry outside the home.[46] However, we need not decide whether the Regulations violate the Second Amendment as Appellants only allege that they violate Section 20. And our Delaware Constitution may provide "broader or additional rights" than the federal constitution, which provides a "floor" or baseline rights.[47]

         Thus, the text of Section 20 allows us to begin with the proposition, articulated in Doe and conceded by the State, [48] that Section 20 protects the right to bear arms outside the home. Importantly, just as we found in Doe that the specific enumeration of "self and family" in addition to the home provides an independent right to bear arms outside the home (and not just in it), the separation of "defense of self and family" in the text of Section 20 creates a different right from the right to bear arms "for hunting and recreational use, " which is a separate clause of the provision and permitted under the Regulations in limited circumstances.

         As part of the Declaration of Rights, Section 20 is covered by the Delaware Constitution's "Reserve Clause, " which declares in bold capitalized letters: "EVERYTHING IN THIS ARTICLE [THE DECLARATION OF RIGHTS] IS RESERVED OUT OF THE GENERAL POWERS OF GOVERNMENT HEREINAFTER MENTIONED"[49] The Reserve Clause has been in our Constitution in substantially its present form since 1792.[50] A prior version of it appeared in Article 30 of the Constitution of 1776.[51] In State v. Bender, [52] we held that the exercise by our General Assembly to amend the Constitution is not the exercise of "a general power of government, "[53] and thus constitutional under the Reserve Clause. We found that the General Assembly's ability to amend the Constitution is a "very 'special' power" given that it requires the "indirect submission to the people of a proposed amendment to the Constitution passed by the General Assembly."[54] Because constitutional amendments only become effective if two successive General Assemblies vote in favor of them, the electorate has an opportunity to reject a proposed amendment that has been approved by the first General Assembly by engaging with their legislators and, if needed, replacing them with legislators who will vote in accordance with their views.[55] Although we also observed in Bender that the precise meaning of the Reserve Clause may have been "lost in the mists of time, "[56] at a minimum, it must suggest that unelected officials cannot enact regulations which totally ban fundamental rights set forth in Article I.

         2. The Historical Underpinnings of Delaware's Right to Bear Arms for Self-Defense

         The right to bear arms, including the right of self-defense, has existed since our State's founding and has always been regarded as an inalienable right. We reject the notion that the Regulations were "grandfathered" because various versions of them predate the addition of Section 20: they were unconstitutional before the passage of Section 20, and they are unconstitutional now.

         This Court recognized in Doe v. Wilmington Housing Authority that "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."[57] Delaware is -- and always has been -- an "open carry" state.[58]

         Since even before the founding, Delawareans valued their right of self-defense. As this Court has observed, "Like citizens of our sister states at the founding, Delaware citizens understood that the 'right of self-preservation' permitted a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.'"[59] Various militia acts enacted in Delaware's colonial period described the right of self-defense as "the first Principle and Law of Nature, " and emphasized the importance of raising a "well regulated Militia" so that "the Inhabitants may be armed, trained and disciplined in the Art of War, whereby they may be enabled not only to assert the just Rights of his Majesty's Crown, but also to defend themselves, their Lives and Properties, and preserve the many invaluable Privileges they enjoy under their present happy Constitution."[60] As we noted in Doe, "An individual's right to bear arms was 'understood to be an individual right protecting against both public and private violence.'"[61]

         Further, Article 25 of Delaware's first constitution (enacted on September 20, 1776) provided that, unless otherwise altered by the State's legislature, the common law of England "shall remain in force."[62] By definition, this included Article VII of the 1689 English Bill of Rights -- described by the United States Supreme Court as "the predecessor to our Second Amendment"[63] -- which provided: "That the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law."[64]As noted by the United States Supreme Court in Heller, this "was clearly an individual right, having nothing whatever to do with service in a militia."[65] Heller made clear that the Second Amendment protects an inherent right of self-defense.[66]

         Delaware's ratification of the Bill of Rights in the United States Constitution reinforces that Delaware's delegates to the constitutional convention viewed the right to keep and bear arms as an inalienable and fundamental right. On January 22, 1790, the Delaware House of Assembly ratified the federal Bill of Rights, including the language of what became the Second Amendment.[67] Then, after the Bill of Rights became effective, Delaware convened its own constitutional convention to amend its own Declaration of Rights "to enumerate, and more precisely define, the Rights reserved out of the general Powers of Government[.]"[68]

         In Doe, we noted that, "[i]n 1791, Delaware delegates to the state constitutional convention were unable to agree on the specific language that would codify in our Declaration of Rights the right to keep and bear arms in Delaware, " despite several attempts.[69] For two decades, Delaware's citizens had been divided on the question of independence from England: the Whigs, who favored independence, and the Tories, who did not, fought for political control.[70] "Concerns over groups of armed men stood in the way of an agreement [on language codifying the right to bear arms]."[71] Mobs of men armed with pistols and other weapons had incited violence in Sussex County as Whigs and Tories sought to prevent each other from voting as they fought for control of Delaware's legislature.[72] A petition seeking to set aside the results of an October 1787 election in Sussex County alleged that "numbers of persons were beat, wounded and maimed, and the lives of many others threatened by a mob furnished with clubs, pistols, cutlasses, etc."[73]According to the testimony of the Lewes sheriff, the armed men determined that certain groups of Tories should not vote.[74] However, despite their obvious animosity, as this Court observed in Doe, "there was an apparent consensus among the delegates on an individual's right to bear arms in self-defense."[75]

         The 1792 Convention delegates adopted a Preamble that refers to a natural right of defending life and liberty: "Through Divine Goodness, all men have by nature, the right of worshipping and serving their Creator according to the dictates of their consciences, of enjoying and defending life and liberty . . . ."[76] All subsequent versions of the Delaware Constitution, including the 1831 and 1897 versions, retained the proclamation that "all men have by nature, the right of . . . defending life and liberty" in the first sentence of the preamble.[77]

         We noted in Doe that, despite consensus on the existence of the right to bear arms, "[n]ot until almost 200 years [after the ratification of the Delaware's first constitution] did the Delaware General Assembly agree on the language to be used" in explicitly codifying Delaware's right to bear arms.[78] Section 20's legislative history suggests that it was introduced in response to various state and federal court decisions that had recently challenged the view that the Second Amendment protected an individual right to bear arms for self-defense and that it applied to the states.[79] The legislative history underscores that the General Assembly intended to codify the pre-existing right of the people to keep and bear arms, including for self-defense -- not create a brand new right.

         On May 8, 1986, the House of Representatives began the process of amending the Constitution by introducing House Bill 554 ("H.B. 554") as the "first leg of a constitutional amendment that explicitly protects the traditional lawful right to keep and bear arms."[80]Aside from three absent representatives, the House unanimously voted in favor of H.B. 554 following debate.[81] In June of 1986, the Senate passed the bill.[82]

         On January 28, 1987, after a new General Assembly convened, the amendment was reintroduced as House Bill 30 ("H.B. 30") -- "the second leg of a constitutional amendment that explicitly protects the traditional lawful right to keep and bear arms, " according to the synopsis.[83] The House Administration Committee, which considered H.B. 30 that April, "found that this piece of legislation reinforces the provisions currently found in the Delaware Statutes and Constitution."[84] The bill passed the House and Senate that month with just two nays (in the Senate), [85] establishing Section 20 as part of the Declaration of Rights in the Delaware Constitution and indisputably recognizing the right to bear arms as a fundamental right.[86]

         More than two decades later, the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), finally settled the questions that had served as an impetus for Section 20. Heller confirmed that the Second Amendment codified an individual right to keep and bear arms separate and apart from the provision's other purpose of maintaining a well-regulated militia.[87] Given that, "[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, " the Court held in Heller that "complete prohibition of their use [as under the District of Columbia's statute] is invalid."[88]

         McDonald found that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment and therefore applies to the states.[89] The McDonald Court further emphasized the importance of protecting the right of self-defense given that it is "deeply rooted in this Nation's history and tradition, "[90] and "a basic right, recognized by many legal systems from ancient times to the present day" -- "'the central component' of the Second Amendment right, " as recognized in Heller.[91] Both cases confirmed that the core right to bear arms for self-defense is a traditional or pre-existing right -- i.e., a right that existed even before being codified.[92]

         The Heller Court found "[t]he very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed, '"[93]as the Second Amendment "was not intended to lay down a 'novel principle' but rather codified a right 'inherited from our English ancestors.'"[94] Indeed, as explained in Heller, "[b]y the time of the founding, the right to have arms had become fundamental for English subjects."[95] Blackstone, the prominent authority on English law of the time, "cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen."[96]Justice Scalia observed that "[Blackstone's] description of [the right] cannot possibly be thought to tie it to militia or military service. It was, [Blackstone] said, 'the natural right of resistance and self-preservation, ' and 'the right of having and using arms for self-preservation and defence.'"[97]

         It is not a historical accident that Delaware's 1757 Militia Act uses similar language in proclaiming that "[s]elf-preservation is the first Principle and Law of Nature, and a Duty that every Man indispensably owes not only to himself but to the Supreme Director and Governor of the Universe, who gave him a Being."[98] The use of such language not only reflects the influence of our English common law heritage, but underscores the pre-existing nature of this natural right.[99]

         Although the United States Supreme Court has not expressly decided whether the Second Amendment protects public carry (i.e., carrying arms outside the home), the conclusion that self-defense is the Second Amendment's "core purpose" suggests that it must allow citizens to be armed outside the home given that "in some circumstances a person may be more vulnerable in a public place than in his own house, "[100] among other reasons. However, regardless of what the United States Supreme Court decides regarding the Second Amendment, in this State, the text of our Delaware Constitution is clear: the right to keep and bear arms exists outside of the home.[101]

         D. The Regulations Violate Section 20 of Our Constitution

         Our conclusion that Section 20 affords a right of public carry for self-defense does not resolve entirely the question of whether the Regulations are valid. Like the Second Amendment, Delaware's right to public carry for self-defense is fundamental but not absolute.[102] We have recognized the validity of several restrictions on gun possession, such as statutes prohibiting the possession of a firearm silencer, sawed-off shotgun, machine gun, or any other firearm or weapon adaptable for use as a machine gun;[103]allowing courts to order people subject to protective orders to relinquish their firearms and ban them from possessing guns;[104] and outlawing possession of a firearm in a public place while under the influence.[105] However, a total ban of possession of firearms for self-defense in Delaware's State Parks and Forests is not the sort of restriction that passes constitutional muster.

         As demonstrated above, Section 20 protects a bundle of rights -- including hunting, recreation, and the defense of self, family, and State. That one of these rights (i.e., hunting) may be exercised during some parts of the year by some citizens does not result in a "wide class of cases" in which the Regulations can be applied constitutionally so as to enable it to survive a facial challenge.[106] Rather, the total ban on possession for defense of self and family completely eviscerates those rights for the vast majority of ordinary, law-abiding Delawareans at all times in State Parks and State Forests. The Regulations permit only a very limited class of visitors to Delaware Parks and Forests to exercise a narrow sliver of their Section 20 rights (permitted hunting by licensed hunters during designated days as long as they also win the lottery for a stand).

         It is axiomatic that the State cannot ignore our Constitution, even when acting as proprietor of State-owned property.[107] As in other areas concerning fundamental rights, statutes and regulations impacting Section 20 rights must comply with our Constitution.[108]

         Heller suggests that "complete prohibition[s]" of Second Amendment rights are automatically invalid and need not be subjected to any tiers of scrutiny.[109] In Wrenn v. District of Columbia, the D.C. Circuit concluded, "[i]t's appropriate to strike down such 'total ban[s]' without bothering to apply tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional right."[110] The D.C. Circuit persuasively explained that, "[b]y declining to apply tiers of scrutiny to a total ban on ownership, Heller[] closed off the possibility that courts would erroneously find some benefits weighty enough to justify other effective bans on the right to keep common arms."[111] In Wrenn, the statutory scheme at issue banned possession of handguns in the District of Columbia for all citizens other than those who demonstrated a "special need for self-protection" by satisfying the police chief that they had "'good reason to fear to [their] person or property' or 'any other proper reason for carrying a pistol, '" and included a few limited exceptions.[112] The Court said that the District of Columbia's scheme operated as a "total ban" because "at a minimum the Amendment's core must protect carrying given the risks and needs typical of law-abiding citizens" -- a right "most D.C. residents can never exercise, by the law's very design."[113] As the Seventh Circuit aptly stated, "[b]oth Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right . . . are categorically unconstitutional."[114]

         We applied intermediate scrutiny in Doe[115] because it did not involve a total ban: although the regulation at issue largely restricted the fundamental right to bear arms in the common areas of housing properties managed by the Wilmington Housing Authority ("WHA"), it allowed possession while traveling to and from a resident's unit and purported to allow firearms for self-defense.[116]

         In contrast, here, the Regulations do not allow any possession of firearms, such as the exception for traveling to and from a resident's unit in Doe. Moreover, this ban is not even limited to as confined a place as the common areas of properties managed by the WHA, or to as narrow a subset of the population as those properties' residents or visitors as in Doe. Nor is it limited to what might legitimately be characterized as a "sensitive" place supported by evidence buttressing the designation of certain areas as such places. Rather, this ban applies to all 23, 000 acres of Parks and 18, 000 acres of Forests -- spanning an area almost the size of the entire District of Columbia at issue in Heller[117] and four times the size of the City of Wilmington[118] -- and to every segment of the population.

         Our adoption of intermediate scrutiny in Doe was consistent with the approach that federal circuits have employed when confronting facial challenges to statutes alleged to impinge on Second Amendment rights, yet do not qualify as total bans.[119] Under a "two-pronged" framework forged by the Third Circuit in United States v. Marzarella, [120] they first ask "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee."[121] If yes, they "evaluate the law under some form of means-end scrutiny, " such as intermediate scrutiny, to determine whether the statute or regulation can survive a facial challenge.[122]

         In determining which standard of review or sort of means-end scrutiny should apply, the Seventh Circuit reasonably summarized, "the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right."[123] Federal courts understandably vary in their application of this broad framework, but a few principles have emerged. For example, courts are more likely to apply stricter scrutiny to statutes that infringe on the core right of self-defense as opposed to some other right embedded within the Second Amendment.[124] Further, courts are more likely to apply stricter scrutiny to regulations that limit the rights of all citizens, instead of merely a "narrow class of individuals who are not at the core of the Second Amendment, " such as convicted felons or the mentally ill.[125] Given that the Regulations not just infringe -- but destroy -- the core Section 20 right of self-defense for ordinary citizens, one might legitimately argue that we need not apply any level of scrutiny.

         But even assuming intermediate scrutiny applies, the Regulations still fail. Under intermediate scrutiny, the Agencies have the burden to: first, articulate their important governmental objectives in enacting the Regulations; second, demonstrate that the Regulations are substantially related to achieving those objectives; and, third, show that the Agencies have not burdened the fundamental right to bear arms in self-defense more than is reasonably necessary to ensure that the asserted governmental objectives are met.[126]The Agencies are required to show more than a "general safety concern."[127]

         In the proceedings below, the parties submitted cross-motions for judgment on the pleadings and agreed that the matter raises purely legal issues. Thus, no evidentiary record was created. The Agencies nonetheless attempted to justify their Regulations by pointing to their general "interest in law enforcement, keeping the peace, and public safety."[128] The Agencies argued that this interest "in public safety substantially outweighs any individual selfish interest in possession of a firearm, " and that "[i]n fact, private possession of firearms is inconsistent with, and contrary to, preserving public safety."[129] The Agencies then urged the court to exclude any facts bearing on public safety "in that such considerations are reserved to the legislature in enacting laws, and the executive branch in promulgating regulations, and should have no bearing on the judicial determinations as to Constitutionality."[130] Thus, the Agencies presented no record support for what can only be characterized as the type of "general safety concern" that we found inadequate in Doe. On this basis alone, the Agencies fail the intermediate-scrutiny test.

         Moreover, the State proffers no basis upon which to conclude that public safety concerns justify a total ban in all acres of Delaware's parkland and forests -- especially given that we observe that open carry and licensed concealed carry is permitted in Delaware's crowded urban areas such as Wilmington's Rodney Square under the State's current regulatory scheme.

         Further, the Regulations fail as they "burden the right to bear arms more than is reasonably necessary."[131] Indeed, the Regulations adopted by DNREC and DOA are grossly out of step with the types of "place"-based restrictions adopted by our General Assembly. Our State statutes allowing for "place" restrictions are purposefully narrow and few in number. Aside from prohibiting guns in detention facilities as contraband, [132] the only "place-focused" firearms regulation statute enacted on a statewide basis is 11 Del. C. § 1457, which creates the crime of "possession of a weapon in a Safe School and Recreation Zone." The statute imposes criminal liability for possessing a firearm or deadly weapon on or near school property, in a school vehicle, or at a recreation center, athletic field, or sports stadium as long as another independent offense is also committed in that place.[133]Section 1457 does not even prohibit concealed carry by licensed persons or open carry by non-prohibited persons of adult age as long as such persons do not commit other crimes.

         Moreover, the General Assembly has restricted political subdivisions (i.e., counties and municipalities) from regulating the ownership, transfer, possession, or transportation of firearms in areas such as parking lots and parks.[134] Within detailed parameters, counties and municipalities are only permitted to regulate firearms in their governments' buildings -- and they cannot prohibit people with concealed carry licenses from carrying firearms even in these sensitive government buildings.[135] It strains credulity to believe that the General Assembly intended to forbid, for example, elected officials in the historic City of New Castle from enacting firearm regulations, yet allow agency officials to ban firearms in the entirety of Redden State Forest, an area nearly five times larger.[136]

         The Seventh Circuit observed that "when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering these places[.]"[137] The Agencies make the same argument here.[138] But, here, the Regulations' sweeping restrictions impose a total ban that forces Delaware citizens to choose between enjoying our more than 23, 000 acres of State Parks and 18, 000 acres of Forests on the one hand, and sacrificing what this Court has already unanimously held to be a constitutional right to public carry for defense of self and family on the other.[139]State Parks and State Forests also present a far different "place restriction" than one limiting possession of firearms in a school or courthouse -- traditional "sensitive places, " where the courts in Heller and Doe suggested that restrictions might be constitutional.[140]

         Although there certainly could be some "sensitive" areas in State Parks and State Forests where the carrying of firearms may be restricted, as is done in certain areas of National Parks, [141] there is no record here that the State has undertaken any effort to delineate such areas so as not to infringe on Section 20 rights. Further, there are several differences between parks and forests and traditional sensitive places that make the State's Regulations' blanket prohibitions problematic.[142] In contrast to a permissible sensitive place such as a courthouse, where visitors are screened by security, most State Parks and State Forests do not have controlled entry points. One can easily enter a State Park or State Forest with a weapon -- either intentionally or by inadvertently wandering across a State Park boundary while exercising the right to open carry or licensed concealed carry. Whereas courthouses are supervised by law enforcement personnel or easily accessible to law enforcement and other emergency responders, making the need to defend oneself with a personal firearm seemingly less acute, State Parks and State Forests are relatively remote and, for example, have less than thirty rangers to police Delaware's entire State Parks.[143]In fact, the DOA's Hunting Rules and Regulations specifically warn that the Forest Service is unable to offer protection: "Camping is at your own risk . . . . [T]here is no after-hours, nighttime or weekend security."[144] And, as this Court acknowledged in Doe, the rights of Delaware citizens to defend themselves with firearms is especially critical "when the intervention of society on their behalf may be too late to prevent injury."[145]

         Responsible, law-abiding Delawareans should not have to give up access to State Parks and State Forests in order to enjoy their constitutional right to carry a firearm for self-defense. Our laws must leave such citizens some reasonable means of exercising their Section 20 constitutionally protected rights.[146] A blanket place restriction effectuating a total ban on carrying for self-defense that takes no account of which areas are truly "sensitive" and which are not presents a situation where a facial challenge must succeed.[147]

         The dissent's citation to a few supposedly grandfathered local or municipal ordinances under the legislation limiting political subdivisions' power to regulate firearms proves nothing. In contrast to 22 Del. C. § 835(a)(6), which provides that "[n]othing contained herein shall be construed to invalidate existing municipal ordinances, " Section 20 contains no such grandfathering provision.

         And the references to "parks" in 11 Del. C. §§ 1441A and 1441B do not suggest that the General Assembly intended to grandfather the Regulations. These provisions were enacted when Delaware implemented the Federal Law Enforcement Officers Safety Act of 2004, 18 U.S.C. §§ 926B, 926C. The federal statutes and Delaware's analogues permit active and retired law enforcement officers to carry concealed weapons within or outside of their home jurisdictions irrespective of state laws to the contrary provided that certain conditions are met. Delaware's statutes were copied directly from the federal statute, and the bill's synopsis indicates that the General Assembly intended for them "to mirror the current federal law . . . ."[148] There is no suggestion or evidence cited that the General Assembly intended to sanction preexisting regulations concerning firearms in State Parks. The Agencies additionally contend that, under 29 Del. C. § 10141(e), this Court should presume that the Regulations are lawful. But that view ignores the fundamental point that this Court, as the court of last resort for determining questions arising under our Constitution, bears ultimate responsibility for upholding our State Constitution. It cannot defer to unspecified reasons of unelected officials attempting to justify an infringement on a fundamental right.[149] Such a presumption is also inconsistent with the intermediate- scrutiny standard employed in Doe that places the burden on the State to prove that its challenged regulations pass scrutiny.

         The Agencies' argument also omits that § 10141(e) provides that, while courts should presume agency action is valid, regulations may be struck down if the complaining party shows the agency action was either "taken in a substantially unlawful manner and that the complainant suffered prejudice thereby, " or that "the regulation, where required, was adopted without a reasonable basis on the record or is otherwise unlawful."[150] Here, the Regulations are plainly unlawful: they violate the Delaware Constitution.

         E. The Agencies Lacked Authority to Enact the Regulations

         Relatedly, it is blackletter law that "administrative agencies . . . derive their powers and authority solely from the statute creating such agencies and which define their powers and authority."[151] "[I]t is axiomatic that delegated power may be exercised only in accordance with the terms of its delegation."[152] We have stated that "[a]n expressed legislative grant of power or authority to an administrative agency includes the grant of power to do all that is reasonably necessary to execute that power or authority, " and no more. [153]

         Pursuant to 7 Del. C. § 4701(a)(4), DNREC may "[m]ake and enforce regulations relating to the protection, care and use of the areas it administers . . . ."[154] That authority is limited by 29 Del. C. § 8003(7), which states that the Secretary of DNREC may "[e]stablish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State . . . .[155] For its part, the DOA has the power to "devise and promulgate rules and regulations for the enforcement of the state forestry laws and for the protection of forest lands . . . ."[156] Under 3 Del. C. § 101(3), the DOA is prohibited from adopting rules and regulations that "extend, modify, or conflict with any law of [the State of Delaware] or the reasonable implications thereof . . . ."[157]

         The Regulations fall outside the scope of the Agencies' authority because they are inconsistent with the laws of this State (namely, Section 20) in violation of 29 Del. C. § 8003(7) and 3 Del. C. § 101(3).[158] The evisceration of the right to self-defense and defense of family in the entirety of Delaware State Parks and Forests is inconsistent with Section 20 as the Agencies failed to show that they have not burdened the fundamental right to bear arms for defense of self and family more than reasonably necessary to achieve important government objectives. The State has made no attempt whatsoever to determine which areas of state park and forest lands are truly "sensitive" and which are not. We do not disagree that certain areas, such as places where classes of schoolchildren gather, may be deemed "sensitive." But the Regulations that completely ban lawful firearms in all areas are invalid, and by failing to conform to 29 Del. C. § 8003(7) and 3 Del. C. § 101(3), the Agencies have exceeded their statutory authority.[159]


         For the reasons set forth above, we REVERSE.

          STRINE, Chief Justice, dissenting, with SEITZ, Justice, joining:


         We respectfully dissent.

         To begin to explain why, we underscore what this case is about. The Majority sets aside a forty-year-old policy of the Division of Parks and Recreation of the Department of Natural Resources and Environmental Control ("DNREC") that prohibits firearm possession in our State Parks, except for lawful hunting in designated areas or with prior written approval of the Director of DNREC, and a fourteen-year-old policy of the Department of Agriculture ("DOA, " and together with DNREC, the "Agencies") that prohibits firearm possession in our State Forests, except for legal hunting[1] or when otherwise waived for a special situation (each a "Regulation, " and together, the "Regulations").[2] The Parks and Forests to which these longstanding Regulations apply are havens of recreation, relaxation, and education for Delaware families and children, offering school field trips, [3] summer camps, [4] recreational activities, including hiking, biking, boating, ice skating, cross-country skiing, bird watching, and horseback riding, [5] and overnight trips to Cape Henlopen that have been a rite of passage for generations of Delaware students.[6] They also serve as a site for school, youth, and adult sporting events.[7]

         What is unusual about this decision is that the Majority has discovered that Article I, Section 20 of our State Constitution ("Section 20"), the 1987 amendment providing for an individual right to bear arms, invalidated these decades-old Regulations. Neither the enactors of Section 20, nor anyone in Delaware, recognized that Section 20 affected the state's ability to regulate firearm possession on its own land until the appellants filed suit twenty-eight years after Section 20's adoption, [8] inspired by federal decisions interpreting the Federal Constitution.

         This decision is unusual in other respects, too. The 1977 Park Regulation prohibiting the possession, display, or discharge of firearms in Parks was not novel, but rather followed a lineage of Delaware park policies dating back to at least 1887.[9] And the 1979 Forest Regulation prohibiting firearm use except by licensed hunters for game in season, as amended in 2003 to prohibit firearm possession, is derived from hunting restrictions dating back to at least 1911, [10] some of which are still in effect today.[11] The Regulations were kept in place through the administrations of many governors from both political parties who did not recognize the seismic effect of Section 20 on their constitutionality. For example, Governor Castle, who was Senate Minority Leader when the Park Regulation was adopted by Governor DuPont's administration in 1977, Lieutenant Governor in Governor DuPont's second term when the Forest Regulation was last promulgated before the adoption of Section 20 in 1984, and Governor at the time of the adoption of Section 20 in 1987, kept the Regulations in place throughout his eight-year tenure.[12]

         There is a reason for that: When adopted, no one thought Section 20 would affect existing laws and regulations, including these longstanding Regulations. And no one conceived or intended that Section 20 would bar the government from restricting firearms on state property. In amending the Delaware Constitution to adopt Section 20, the General Assembly did not intend to create new rights, repeal existing firearm laws, or limit its power to manage its own land. Rather, as the legislative history shows, the General Assembly intended to protect the status quo as it existed in 1987.[13]

         So what is this case about? It is about a desire to read the Delaware Constitution in conformity with federal decisions that were not issued until 2008 and 2010: to wit, District of Columbia v. Heller and McDonald v. City of Chicago.[14] Heller and McDonald gave the Second Amendment a much broader reading and reversed interpretations of the Second Amendment by the Supreme Court of the United States that were well over a century old.

         These cases were first used as a gloss on our own Constitution in this Court's decision in Doe v. Wilmington Housing Authority, which answered certified questions from the United States Court of Appeals for the Third Circuit.[15] In Doe, this Court addressed to what extent our state government, as a landlord, could restrict the ability of its tenants to carry weapons for self-defense in common areas that it considered to be extensions of the home where the residents had to go to do daily chores like laundry. And although Doe purported to give Section 20 a broader meaning than the Second Amendment because of Section's 20 different text-an interpretation unnecessary to decide the case before it-the analysis in Doe was in essence identical to the revised interpretation Heller and McDonald gave to the Second Amendment. Consistent with Doe's embrace of Heller and McDonald, Doe gave limited consideration to our state's own history of gun regulation and to the limited purpose behind the adoption of Section 20.

         It was only after Doe that this suit was filed, in which the appellants urge us to read our own Constitution to restrict our government's ability to control firearm possession and use, even on its own land, further than the Second Amendment does. The Majority embraces Heller and McDonald and uses them as the foundation for their holding that Section 20 invalidated longstanding practices in park regulation, while giving little weight to the text and history bearing on our Constitution's meaning. The reality is that, rather than examine what the text of Section 20 means and how it was understood when it was adopted, the Majority has given Section 20 a federal coat of paint, a gloss of meaning more derived from Washington, D.C. than Dover, Delaware. Absent the process of epiphany about the meaning of our Constitution triggered by Heller and McDonald, the Regulations would have continued to operate without controversy.

         As we show, neither the text of Section 20 nor its history suggests that it altered the historical understanding that our state government, through our elected officials, could determine whether and when firearms could be possessed on state property, and who could possess them. Likewise, nothing in Section 20 or our history suggests that our state government cannot create Parks and Forests as havens for recreation, relaxation, and education where firearm possession and use is restricted.

         No one has the right to bear arms on another's property without their consent, and it was long recognized that the government could restrict possession in certain sensitive places, like Parks and Forests. In fact, as of 1977, firearms had been prohibited in one of the state's crown jewel parks for ninety years.[16] And, since 1938, the federal government had prohibited gun possession within national parks.[17]

         But even if the Regulations prohibited conduct protected by Section 20, we would dissent. Under Heller and its progeny, the Regulations regulate sensitive areas, and thus are lawful. The notion that our government, as a proprietor, may determine that certain areas are sensitive and should be firearm-free was well understood in Delaware, and throughout the United States. It is therefore not surprising that for the forty years since the earliest of the Regulations was adopted in 1977, [18] no one in the General Assembly sought to introduce a bill overturning them, and no one claimed they violated our Constitution or the Second Amendment.

         And even if they were not regulations of sensitive places, the Regulations would survive heightened scrutiny. Contrary to the Majority's characterization of the Regulations as a "total ban"[19]-a label it borrows from Heller[20]-the Regulations do not ban firearm possession statewide or even citywide, and are therefore distant from the citywide bans at issue in Heller and McDonald.[21] The Regulations affect only three percent of the land in Delaware.[22] And they are not even a total ban within the three percent occupied by Parks and Forests because they facilitate access to firearms for lawful hunting and allow for waiver through an application for special permission, which could be used if a group wished to use a Park for a marksman's competition, or if, say, an FBI agent who does undercover work wished to bring a weapon into a Park because of her special need for personal protection.[23]

         The Regulations serve an important governmental purpose and do not burden appellants' Section 20 rights more than necessary. When people come together in Parks and Forests for games and recreation, emotions can run high. When folks camp, they sometimes drink, [24] including at events within the Parks like beer and wine festivals.[25]When folks drink and carouse, they sometimes get jealous and angry. When folks play or attend sporting events, spirits run high and sometimes out of control. When folks get emotional around guns, things can get dangerous fast. When folks camp, there are no gun lockers, and they are near other visitors.[26] There are no natural boundaries in Parks and Forests signaling areas where park-goers can find safety from gunfire or natural barriers that stop flying bullets or arrows. These and other common sense reasons support the decisions of generations of governors and cabinet secretaries that the Regulations advance the public purposes served by our Parks and Forests, and facilitate the safe enjoyment of these public spaces by families and children.

         Underscoring this reality are the briefs of the appellants and their friends in amicus that argue without evidence that our Parks and Forests are now dangerous places because of the Regulations.[27] We live in a state with a crime rate higher than the national average.[28]Our major city has a crime rate higher than that of Los Angeles and New York City[29] and its children are more at risk of being victims of gun violence than those in any other American city.[30]

         Given this backdrop, one would expect the appellants and their friends in amicus to be able to show that the Regulations have manifested themselves in a pattern of violent harm to visitors and a higher violent crime rate in our Parks and Forests than in other areas of our State. Instead, their adjectives and adverbs find themselves accompanied by one fact: an unsolved murder with its victim discovered in Blackbird State Forest in 1986.[31]One. That suggests the Regulations should not be disturbed by the Judiciary, and that we should trust the judgment of generations of elected governors and their cabinet secretaries to oversee state land and protect those invited to use it on a shared basis. Our General Assembly is well-positioned to constrain any overreaching by them. That a bill has never even been introduced to do so since 1987 suggests that we are overriding a durable, bipartisan, and sensible policy consensus.


         To explain why we would find the Regulations valid under the Delaware Constitution, we proceed as follows: In Section III, we examine the 1776 and 1792 Delaware Constitutions and the fact that their framers did not adopt a constitutional right to bear arms. Instead, they left it to the General Assembly to address the extent to which Delawareans could bear arms.

         We illustrate in Section IV, by reference to specific instances of lawmaking and regulation, that Delaware has long regulated to what extent, where, and when firearms could be possessed and used. Likewise, we show that Delaware has long recognized the right of property owners to decide whether firearms could be possessed on their property. This understanding included the notion that the government could regulate firearm possession on its own lands, including within its Parks and Forests.

         In Section V, we address the circumstances the Agencies faced when they adopted the Regulations and why those decisions were presaged by prior regulation and not controversial.

         Then, in Section VI, we address Section 20, which added to the Delaware Constitution the right to keep and bear arms that is the focus of this case. We address its limited purpose, and in particular, the lack of any purpose on the part of its drafters to disturb longstanding restrictions on firearm possession and use on government property. The General Assembly intended to codify the existing status quo: No one thought or intended that Section 20 would limit Delaware's power to regulate firearm possession and use on its own property, like any other proprietor may. We note that, in 1981, Kent County adopted an ordinance like the Regulations that prohibited the possession and use of firearms in its county parks, and the absence of any suggestion that Section 20 invalidated that ordinance.

         In Section VII, we address the implications of silence: the three decades following the adoption of Section 20 when there was no constitutional or administrative challenge to the Regulations, no bill filed to overturn the Regulations, and no directive from the Governor to do so. In fact, any legislative action taken during this period confirmed the constitutionality of the Regulations. And, in 1998, New Castle County adopted the same policy as the Regulations by prohibiting the possession and use of firearms in its parks.

         In Section VIII, we address what began the process of discovery that resulted in this suit: the federal decisions of Heller and McDonald. We do not think that Delawareans need these federal cases-postdating our adoption of Section 20 by twenty-one years-to tell us what it meant when it was adopted almost a generation earlier.

         In Section IX, we note that even in the wake of these federal decisions, there was no action challenging the constitutionality of the Regulations under either the State or Federal Constitution. Rather, this case was only filed after this Court answered a question certified by the United States Court of Appeals for the Third Circuit in 2014.[32] In Doe, this Court embraced the analysis in Heller and McDonald, reading them into the Delaware Constitution and inspiring the appellants' discovery that the longstanding Regulations violated Section 20. But, even after Doe, the General Assembly adopted legislation that accepted the Regulations as state policy on two occasions.

         Finally, in Section X, we give context to the Regulations by explaining the role of our Parks and Forests in the lives of Delawareans. We then show that the Regulations do not burden conduct protected by Section 20. We also explain how, even if the Regulations do burden conduct protected by Section 20 and the federal cases the Majority relies upon apply, the Regulations are lawful as regulations of sensitive places and, in any event, survive heightened scrutiny.


         From the Majority decision, it might be confusing whether we are addressing a case arising under a Delaware constitutional amendment adopted in 1987, Second Amendment decisions issued by federal courts in 2008 and 2010, or the State Constitution, first adopted in 1776.

         We start with the latter suggestion, which rests on the odd notion that Delaware's decision not to create a constitutional right to bear arms amounted to a recognition that there was an unwritten right to bear arms that could not be altered by the General Assembly, the common law, or local regulation authorized by the General Assembly. To show why this is not convincing, we begin with the obvious. Delaware's 1776 Constitution did not include a right to bear arms. And the drafters of Delaware's 1792 Constitution debated whether to adopt a constitutional right to bear arms, but decided not to do so.


         Delaware's first Constitution, adopted in 1776, [33] did not include a right to bear arms, but three provisions evidence the state's understanding that it could regulate firearm possession and use: i) Article 24, which continued the acts of the General Assembly in force, [34] including prohibitions on dueling and riots;[35] ii) Article 25, a placeholder that continued the then-existing common law of England while the details of the Constitution could be filled out, [36] including the prohibition on "riding or going armed with dangerous or unusual weapons";[37] and iii) Article 28, which prohibited the carrying of arms to the first election of the General Assembly, to be held in the county courthouses.[38] Delaware's first Constitution thus recognized existing firearm laws and restricted the possession of arms on sensitive government property.

         The Majority references Article 25 to support the notion that Delawareans understood a right to bear arms "even before the founding."[39] That Article states:

The common law of England, as well as so much of the statute law as have been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, & c. agreed to by this convention.[40]

         Article 25 made up for the original Constitution's brevity, which contained only thirty articles, [41] and protected individual rights until the General Assembly had the opportunity to draft its own bill of rights.[42] In 1792, the General Assembly made the anticipated changes and removed Article 25.[43] The removal of Article 25 did not revoke the application of English common law in Delaware, but rather, reinforced the understanding that the Delaware General Assembly's creation of its own Constitution and statutes would take primacy over English law.[44]


         Delaware based its Bill of Rights in the 1792 Constitution on English common law and Pennsylvania's Constitution.[45] Although both English common law and the Pennsylvania Constitution included a right to bear arms, Delaware rejected a proposal to include one.[46]

         The constitutional convention delegates debated a provision protecting an individual right to bear arms, and considered at least four versions of such a provision. The first proposal, identical to the 1790 Pennsylvania provision, [47] stated: "The Right of the Citizens to bear Arms in defence of themselves and the State, shall not be questioned."[48]This conception of an unqualified right was met with amendments that would have added important provisos, including limiting the right to those "acting in strict subordination to the Civil Power, " "qualified to vote for Representatives, " and who did not "disturb the Peace and Happiness, or Safety of Society."[49]

         This Court acknowledged this history in Doe, observing:

In 1791, Delaware delegates to the state constitutional convention were unable to agree on the specific language that would codify in our Declaration of Rights the right to keep and bear arms in Delaware. After several attempts, the effort was abandoned. Concerns over groups of armed men stood in the way of an agreement even though there was an apparent consensus among the delegates on an individual's right to bear arms in self-defense.
Not until almost 200 years later did the Delaware General Assembly agree on the language to be used.[50]

         But then still concluded:

Although Section 20 was not enacted until 1987, Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state. . . . Like the citizens of our sister states at the founding, Delaware citizens understood that the "right of self-preservation" permitted a citizen to "repe[l] force by force" when "the intervention of society in his behalf, may be too late to prevent an injury." An individual's right to bear arms was "understood to be an individual right protecting against both public and private violence." The right to keep and bear arms was also understood to exist for membership in the militia and for hunting.[51]

         To us, it is not surprising that Delaware did not adopt a constitutional right to bear arms. Aside from the concern that a situation could arise where the national government would prevent states from raising militias-a concern with origins in the struggle for independence from England-there was no plausible reason to believe that the political process would not address firearm possession and use in a fair manner. And as we shall soon discuss, the English tradition did not bar Parliament-the equivalent of our General Assembly-from regulating gun possession and use.

         The drafters' decision not to constitutionalize any right to weapons means that any claim of right was subject to regulation by the ordinary political process. Doe's dictum suggesting that the failure to agree on a right reflects a "consensus" that it existed, [52] to us, turns history and law upside down and has an Orwellian character. The supposed originalism of some is supposed to be based on what constitutional text says and was understood to mean, not to ground constitutional rights in absent text.[53]

         Turning our founders' decision not create a constitutional right to bear arms into evidence of a fundamental right immune to legislative regulation is not only inconsistent with principles of legislative interpretation, it is belied by the actions of generations of Delawareans that followed. They often legislated to restrict weapons possession and use, unconstrained by any belief that they were compromising an unwritten state constitutional right.

         Our friends in the Majority ground an unwritten right to bear arms in our English law heritage.[54] But the English regulatory tradition does not support the notion that our founders considered our English law heritage to be the source of an unwritten right to bear arms.[55] In fact, one of the only things the nine federal Justices who were split five-to-four in Heller agreed on was that any right to bear arms in England was subject to restriction by Parliament.[56]

         Nor can it be thought that the drafters of our Constitution relied upon the Second Amendment to the Federal Constitution as a substitute for a state constitutional right to bear arms. By its plain terms, the Second Amendment was a restraint on federal-not state-action, and understood as such in 1792.[57] Thus, as of our state's founding, there was no constitutional right to bear arms, and the General Assembly had the responsibility of regulating gun possession and use.


         In keeping with the decision to not create a constitutional right to bear arms and with the English tradition of regulating gun possession and use, Delaware lawmakers early on regulated where, when, and what weapons could be possessed within our State. Likewise, Delaware respected that proprietors, including the government itself, could restrict the possession and use of firearms on their own property. And one prominent example of that understanding involved a ban on firearm possession in a key public park.


         We touch on some of this history now, beginning with one of the earliest regulations of where guns could be used. In 1812, the General Assembly prohibited the firing of firearms within the limits of any town, [58] later enacting a form of the English Statute of Northampton under which: "Any justice of the peace may also cause to be arrested . . . all who go armed offensively to the terror of the people, or are otherwise disorderly and dangerous"[59] and which prohibited the firing or discharge of any firearm in any public place in the State.[60] With the authority of the General Assembly, municipalities also regulated firearms. Wilmington prohibited discharging firearms within its city limits, except on days of public rejoicing, [61] as well as target shooting within town limits or "at any place of public resort" unless the location was surrounded by walls at least ten feet high and four inches thick.[62] Likewise, Dover prohibited the discharge of firearms within the town limits.[63]


         As did the rest of the United States, [64] Delaware respected the rights of real property owners-including private landowners and the government itself-to control their land and the conditions on which visitors could enter. For example, "willfully enter[ing] into, upon, or trespass[ing] upon [a private landowner's] ways, lands or premises" was a nuisance in Delaware.[65] Private landowners could prohibit hunters with firearms from entering their property, and state law made disobeyance a violation of state law, just as the State prohibited trespass on state property for certain private uses.[66]


         This established history of respecting private property extended to parks controlled by the government and is evidenced by state regulations limiting possession and use of weapons in those parks. History belies the idea that late twentieth century state policymakers were the first to regulate Parks and Forests as places for recreation in which possession and use of firearms might be inconsistent with the public purposes of the land.

         The state's administrative structure at this time employed the "hydra-headed commission system of administration, "[67] with local commissions performing public administrative functions outside of the control of the Governor.[68] As early as the 1860s, a Brandywine Park in Wilmington was contemplated because of its potential to "raise land values throughout the city and . . . to improve 'the culture, taste and morals of the community'" by addressing the absence of "a place where the mothers with their children, or the aged people can stroll, away from the noise and dust of the city, without being trespassers."[69] To address this need, the General Assembly created the Board of Park Commissioners of Wilmington in 1883 "for the purpose of providing and maintaining one or more open places or parks for the promotion of the health and recreation of the people of the City of Wilmington and its vicinity"[70] and to "provide a contrast to the existing city, a refuge from its noise, its oppressive darkness, from the crowdedness and the inhuman surfaces of the streets."[71]

         The General Assembly itself established some regulations for Wilmington city parks in 1883, [72] and under delegated authority from the General Assembly, [73] the Board of Park Commissioners of Wilmington established additional regulations governing visitor conduct in its parks in 1887, one of which stated: "No person shall carry fire-arms or shoot birds or other animals within the Park, or throw stones or missiles therein. Penalty, $5.00."[74] The 1898 park rules stated: "No person shall carry firearms, shoot birds, or other animals, nor throw stones or other missiles, or in any way disturb or annoy the birds or animals within the boundaries of the Park."[75]

         These Wilmington rules were consistent with the federal government's emerging approach:

• In 1872, the federal government prohibited the use of guns while killing or trapping wild animals;[76] and
• In 1938, the Department of the Interior prohibited the possession and use of firearms in all national parks, except with written permission.[77]

         In that same era, Delaware began developing a statewide park system, establishing in 1937 the State Park Commission, [78] whose responsibilities were later assumed by DNREC, which the General Assembly authorized to establish rules and regulations governing Parks.[79] The State Park Commission regulated firearms within Parks, prohibiting hunting on land under its jurisdiction as directed by the General Assembly.[80]

         By 1951, it appears that the State Park Commission had moved toward the federal policy of prohibiting firearm possession in Parks.[81] In 1962, a unanimous State Park Commission adopted a rule prohibiting the possession, display, and discharge of firearms in any Park.[82] And in 1968, the General Assembly allowed hunting in certain Park areas designated by the State Park Commission, [83] which, in response, revised its rules to reflect this change.[84] A year later, the General Assembly began transitioning Park management to DNREC, led by a Secretary the Governor appointed with the advice and consent of the Senate.[85] During the twentieth century, the State also developed structures and policies for governing its Forests, first through the State Board of Forestry, established in 1909, [86] and through the DOA after 1974.[87] As was the case with Parks, firearms were regulated in Forests, with the first prohibition on use dating back to 1911.[88]


         The General Assembly's regulation of firearms was not, of course, limited to where guns could be possessed and used, much less to firearm restrictions in Parks and Forests. The General Assembly also regulated the manner in which Delawareans could possess and use weapons throughout the State.

         For example, the General Assembly banned the carrying of concealed deadly weapons for thirty years "on the ground of public policy and for public protection" to remove the "temptation and tendency to use it under excitement."[89] The General Assembly also banned the intentional pointing, "either in jest or otherwise, " of a firearm on similar grounds.[90] In 1911, the General Assembly tempered this concealed carry prohibition by creating a limited exception that allowed the Court of General Sessions to grant licenses for concealed carry.[91]

         But Delaware courts did not view this licensing scheme as a broad mandate to allow exceptions to the broader restriction on concealed carry. The Court of General Sessions refused to allow introduction of evidence of a need for self-defense as a justification for carrying a concealed deadly weapon without a license because "[t]o hold otherwise would be to aid and encourage the very common and dangerous practice of carrying concealed deadly weapons, and permit any one to indulge in such practice who is willing to swear that he did it for self-defense."[92] And lawful reasons for concealed carry continued to be interpreted as "specific, and, in a sense, temporary."[93]

         In the late nineteenth and early twentieth centuries, the General Assembly also regulated who could bear arms, prohibiting "tramps" from possessing a firearm, [94] and restricting "unnaturalized foreigner[s]" and minors from possessing a firearm while hunting.[95] And by 1968, the General Assembly had prohibited firearm possession by persons convicted of a felony, crime of violence, or unlawful use or possession of drugs; and persons committed to a mental institution.[96]

         Delaware also regulated the types of weapons its citizens could carry, prohibiting while hunting "any device or instrument known as a swivel or punt gun, or with any gun other than such as are habitually raised at arm's length and fired from the shoulder, " and making possession of these guns while in possession of a protected animal prima facie evidence of poaching.[97] And beyond the realm of hunting, the General Assembly prohibited air guns, spring guns, and maximum silencers.[98]


         As the careful reader has no doubt noticed, our discussion has not focused on the Second Amendment. This is for a good reason. Throughout the period 1792 to 1977, the Second Amendment was irrelevant to the question of whether and under what conditions Delawareans could use and possess deadly weapons.

         The Supreme Court of the United States held on multiple occasions that the first eight amendments did not apply to the states.[99] Clarifying that this meant that the Second Amendment did not apply to the states, the Supreme Court held in Cruikshank in 1875 that the Second Amendment only declared that the right to bear arms for a lawful purpose shall not be infringed by Congress.[100] And in 1886, the Supreme Court in Presser held that the Second Amendment "is one of the amendments that has no other effect than to restrict the powers of the national government."[101]

         In 1894, the Supreme Court in Miller v. Texas again stated that the Second Amendment "operate[s] only upon the federal power, and [has] no reference whatever to proceedings in state courts."[102] And in the 1939 United States v. Miller decision, which remained the Supreme Court's leading Second Amendment decision into the mid-twentieth century, the Court further held that the Second Amendment only prevented the federal government from infringing the rights of states to raise militias.[103]


         Because the Majority relies upon our English heritage to justify their decision to overturn the Regulations, we pause to show the state of firearm regulation in England as of 1977.[104] But this reliance is surprising given the reality that the English tradition was that any right to bear arms was subject to legislative sufferance.[105]

         In fact, England's regulation of firearm possession and use during the nineteenth and twentieth centuries was more stringent than Delaware's. To condense this history, by 1977, England had: i) given constables the authority to search and seize weapons "kept for a purpose dangerous to the public peace";[106] ii) created a national gun registration system;[107] iii) restricted the sale of guns to "unfit" persons;[108] and iv) required certificates issued by local police to purchase, possess, use, or carry any firearm or ammunition.[109] As of 1977, no Delawarean would have found any support in the English tradition for the idea that our Constitution's failure to create a constitutional right to bear arms precluded legislation regulating gun possession and use.

         To complete this part of our story, since 1977, England's firearm regulations have become even stricter, resulting in a near prohibition on the ownership of handguns and automatic weapons.[110] Lawful firearm possession in England today is subject to registration and storage requirements, [111] as well as the requirement that owners provide a "good reason, " beyond self-defense, to secure a license to possess a firearm.[112]

         England enacted these restrictions without believing itself constrained by the existence of any constitutional or inalienable right to own a firearm and carry it anywhere, much less on government property, free from legal restraint. At the same time, this continuation of stringent regulation has resulted in lower violence rates than those in Delaware[113] and the United States, [114] where gun regulation is less stringent.

         Meanwhile, England's proud hunting tradition still thrives.[115]


         In 1977, there was no reason for DNREC to view adopting a regulation restricting the possession and use of firearms within the state's own Parks and Forests to be controversial. As we have shown:

• There was no Delaware state constitutional right to keep or bear arms;[116]
• The Second Amendment to the Federal Constitution did not apply to the states, but rather, was interpreted to only prevent federal action that would impair the states' right to form militias;[117]
• There was an established history in Delaware of regulating where, to what extent, in what manner, and what types of weapons could be used;[118]
• There was an established history of respecting private property and the rights of property owners to determine the conditions on which anyone could enter their property; and[119]
• This established history of respecting private property extended to parks controlled by the government, as exemplified by the City of Wilmington's 1887 ban on firearms in its parks, the federal government's 1938 ban on firearm possession in the national parks, and the State Park Commission's own prior regulations, including its 1962 prohibition on the possession and use of firearms in Parks.[120]

         To summarize, in 1977, it was understood that the government could establish parks, condition access to them on entry and conduct requirements, and limit the activities that people might do on its property. By way of example, we do not quibble with the proposition that in the state of nature, human beings fashioned weapons and used them to protect themselves in the case of attacks by wild animals and to kill them for food. But, to survive, human beings also did other things one can think of as fundamental. For example, they used fire to stay warm long before bearing firearms. But consideration of Smokey the Bear makes clear that when you enter a public park, however beautiful and however natural, you are not in the state of nature. You are using a public park established by a republican democracy and must follow the rules it set for its use, whether that means not lighting a fire for warmth when the rules prohibit that or not carrying a gun to fight off wildlife when you are not allowed to do so. If you don't like the rules, then you don't have to go into the park. In 1977, this was not a controversial proposition in Delaware or the United States.


         DNREC's 1977 Park Regulation made it unlawful

to display, possess or discharge firearms of any description, air rifles, B.B. guns or sling shots upon any lands or waters administered by the Division, except those persons lawfully hunting in those areas designated for hunting by the Division, or except with prior written approval of the Director or his authorized agent.[121]

         This sentiment was reiterated in the section on hunting, which stated: "It shall be prohibited to possess or discharge a rifled firearm on State Park lands or waters at anytime [sic]. No firearm, other than a shotgun, may be used for hunting on areas designated for hunting within State Park lands."[122]

         DOA followed DNREC's lead by including in its first forest rules a regulation restricting firearm use. The first version of the Forest Regulation, promulgated in 1979 and governing Blackbird State Forest stated: "The discharge or use of a firearm of any sort is prohibited, except by licensed hunters for game in season. No target shooting is permitted at any time."[123]

         The Agencies exercised the state's rights as a proprietor to restrict certain conduct on its property through the promulgation of the Regulations, which had the effect of law and included modest penalties set by the General Assembly, [124] as well as doing things like setting the hours Parks and Forests were open to the public, restricting where fires could be built and how many consecutive days campers could stay, and charging entrance fees.[125]


         In light of this long history of firearm regulation, it is unsurprising that the adoption of the Regulations did not inspire protest. We note that, when the Regulations were adopted in 1977 and 1979, they were subject to review under Delaware's Administrative Procedures Act ("APA"). A challenge under the APA could have been mounted within thirty days of the Regulations' adoption on the basis that they were arbitrary and capricious, or contrary to law.[126]

         But in the years after 1977 and 1979, no administrative challenge was mounted; no constitutional challenge was mounted; and no action was taken by the General Assembly suggesting the adoption of the Regulations was beyond the scope of the Agencies' delegated authority. That the Regulations were uncontroversial is explained by their consistency with longstanding firearm restrictions and their purpose in facilitating the function of the Parks and Forests as safe, shared havens for families and individuals for relaxation, recreation, and enjoyment of the outdoors.[127]

         The uncontroversial nature of the Regulations is also evidenced by the status of similar regulations in national parks. Between 1977 and 1987, the national parks continued to ban firearm possession, [128] and there was no suggestion the Second Amendment was inconsistent with that policy.[129]

         Closer to home, in 1981, Kent County demonstrated the acceptance in Delaware of park regulations restricting the possession and use of firearms. That year, Kent County prohibited firearm possession in its parks:

Carrying or possessing, while in any area covered by this part [i.e., Kent County Parks], a gun, air gun, bow and arrow, sling, dart, projectile thrower, knife with blade more than three inches long or any other dangerous weapon is prohibited, provided that nothing in this section shall be construed as to prevent the use of target ranges and the use of bows and arrows by park visitors on officially established archery ranges.[130]


         To understand Section 20's genesis and intended effect, it is important to understand the status of Second Amendment jurisprudence as of the adoption of Section 20. As of 1987, the leading Supreme Court decision held that the Second Amendment only applied to the federal government and protected the states' right to form militias.[131] That is, the Second Amendment was not understood to create a personal right to bear arms for the purpose of self-defense or hunting, or to apply to the states.

         Gun rights advocates, most notably the National Rifle Association ("NRA"), opposed these longstanding interpretations of the Second Amendment[132] and campaigned for state constitutions to provide a personal right to bear arms, unconnected to any militia purpose, that would be enforceable under state law.[133] As we will discuss, as an adjunct to this movement, gun advocates also sought to pass state laws preventing local governments from adopting jurisdiction-wide regulations of firearm possession and use within the borders of their counties, cities, or towns that would undercut state constitutional protections and otherwise regulate gun possession and use in a more stringent fashion than state law.[134]

         By the time Delaware amended its Constitution in 1987 to add Section 20, the NRA's lobbying had resulted in the adoption of constitutional amendments of this kind in six states.[135] It was as part of this movement that Delaware came to adopt Section 20, proposed at the behest of the Delaware State Sportsmen's Association ("DSSA"), the local affiliate of the NRA and one of the appellants in this case.[136]


         The proponents of what became Section 20 took care to address the concerns we just noted. They took a coordinated, two-pronged approach. The first thing they did was to introduce a bill that limited the ability of local Delaware governments, such as counties and municipalities, to regulate gun possession and use on a jurisdiction-wide basis (the "Preemption Bill").[137]

         The Preemption Bill was introduced and passed in 1985, ahead of the introduction of the constitutional amendment.[138] Starting with the Preemption Bill was consistent with the approach of the national movement, of which DSSA was a part. The NRA was concerned that the success they achieved at the state level could be undone if local governments, including those of major cities whose citizens may be more supportive of gun regulation, could enact citywide regulations restricting gun possession and use.

         And the reality of our constitutional amendment process was also a consideration. As is well-known, to adopt an amendment to our Constitution by action of our General Assembly, each chamber of two successive General Assemblies must pass the amendment by a two-thirds vote.[139] Thus, even after the first leg of an amendment is adopted, the amendment is not effective until the second leg is adopted by the next General Assembly.[140]

         The Preemption Bill reads in a way that underscores it is about jurisdiction-wide regulation of ownership and possession:

[Municipalities and counties cannot] prohibit, restrict or license ownership, transfer, possession or transportation of firearms or components of firearms or ammunition, except that the discharge of a firearm may be regulated; provided that any regulation or ordinance incorporates the justification defenses as found in Title 11 of the Delaware Code. . . .
Nothing contained herein shall be construed to invalidate existing municipal ordinances.[141]

         The language of the Preemption Bill makes sense in light of what gun advocates were concerned about, which was not restricting the ability of local governments to prohibit the possession and use of firearms on their own land. It was about the NRA's national goal to confine regulation of possession and use of firearms to state legislatures, where the NRA had been successful, and to avoid having that success undermined by local jurisdictions enacting jurisdiction-wide regulation of gun possession and use.[142]

         But, there was a key aspect of the Preemption Bill that was important in the consideration of both it, and in the next year, Section 20: the concession by the advocates of the bill and Section 20 that confirmed the bill would not "be construed to invalidate existing municipal ordinances."[143]

         Despite the compromise struck in 1985, a member of the Wilmington City Council attempted to circumvent the General Assembly's intent by identifying what she thought was a loophole in the original Preemption Bill. The City Council member felt that she could bypass the Preemption Bill by acting by city ordinance, rather than a charter change, and proposed an ordinance that would have outlawed the public display of dangerous weapons in Wilmington (i.e., "open carry").[144] The General Assembly acted to close any arguable gap in the original Preemption Bill, by adopting a supplemental bill, making it plain that it did not matter how a municipality tried to regulate gun possession and use. Together, the two Preemption Bills preempted municipal firearm regulation by law, regulation, or ordinance postdating the approval of the original Preemption Bill, and thereby achieved the original Preemption Bill's intended effect.[145]

         Absent from the Preemption Bills' text and any statement of its supporters was that the bill had any effect on the ability of any local government, including the county governments, to prohibit the possession and use of firearms on their own property. As we have discussed, in 1981, Kent County enacted an ordinance prohibiting gun possession within its county parks. No proponent of the Preemption Bills in 1985 or 1986 argued that its text operated to preempt that ordinance, and no one filed suit alleging that Kent County's ordinance violated the Preemption Bills. One would expect that, if the Preemption Bills were intended to preempt existing county regulation on firearm use and possession on government property, Kent County's ordinance would have been discussed, or at least challenged after the bill passed.


         It was against this the backdrop that the first leg was considered in July 1986. The purpose of the first leg was to "explicitly protect[] the traditional lawful right to keep and bear arms."[146] Section 20 was thus written in a way that made clear that the rights it secured were personal and not confined to protecting the types of gun ownership necessary to participation in a militia. The text of Section 20 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.[147]

         Consistent with earlier assurances that Section 20 was not designed to unsettle existing municipal regulations, the General Assembly's consideration of Section 20 provides no evidence that it intended to undermine the state's traditional recognition of the right of property owners to exclude firearms from their property. To the contrary, General Assembly members at the first House debate addressing Section 20 confirmed that it "doesn't give everyone carte blanche to carry a weapon, "[148] but instead, "continues to give the state the right to regulate . . . things not within the realm of sportsmen and hunters."[149]

         There is also no evidence that the General Assembly intended for Section 20 to cover more ground than the Second Amendment; instead, the proponents of Section 20 just wanted to make clear that the right to bear arms to which Section 20 referred was not conditioned on any connection to raising a militia. In the debates on Section 20's first leg, one Representative explained that Section 20 would incorporate the Second Amendment to the State of Delaware and provide "the same rights we have under the Second Amendment to the United States Constitution . . . . That's all the bill does, there's nothing added, nothing detracted, that I know of, that we don't already have in the United States Constitution's Second Amendment."[150] After this statement, the House called roll and passed the bill approving Section 20, which the Senate then passed without debate.

         The Senate debate on Section 20's second leg in 1987 reflects the same understanding documented in the first leg, with the Senators confirming that Section 20 was intended to address the longstanding fact that the Second Amendment only restricted federal, not state, action and did not protect a right to bear arms unconnected to raising a militia.[151] John Thompson, President of the DSSA, testified that Delaware needed this Amendment because the Second Amendment did not apply to the states under the "Doctrine of Selective Incorporation."[152] The DSSA was concerned about a recent Seventh Circuit case that held the "possession of handguns by individuals is not part of the right to keep and bear arms."[153] The NRA encouraged its Delaware members to advocate for the passage of Section 20:

The National Rifle Association is advising its members in Delaware to contact their state senators and urge passage of an amendment to the state constitution providing for the "right to keep and bear arms." In a letter dated April 9, the NRA's Institute for Legislative Action says that passage of H.B. 30 "will prevent the banning and/or confiscation of firearms from law-abiding citizens of Delaware." The organization says a number of courts have ruled that the Second Amendment to the U.S. Constitution is not binding on the states.[154]

         Thus, according to testimony at the debate, Delaware needed Section 20 to "protect the rights of individuals."[155] Senator Holloway stated: "What I read in the Bill, I read in the Constitution of the United States-that the right to keep and bear firearms shall not be infringed upon."[156]

         Both the DSSA and Senators acknowledged that the legislation was preemptive, intending to prevent future regulations from infringing on individuals' right to bear arms.[157]As Senator Neal explained, "the whole purpose of this [Amendment] . . . was not based on anything that's happened in Delaware, but based on judicial cases in other states that have said that the federal provision does not apply."[158] This was reiterated by Senator Adams, who clarified that Section 20 would "not change [legislation banning automatic firearms] in any way."[159] The NRA and its Delaware affiliate was focused on preventing "the banning and/or confiscation of firearms"[160] not on limiting the ability of property owners, and the government, to regulate possession and use of firearms on their own land. The Senate approved Section 20, and the House then passed it without debate, thereby completing the second leg of the process, and Section 20 took effect on April 16, 1987.[161]

         Lacking from the text of Section 20, its legislative history, or our Second Amendment jurisprudence is any suggestion that Section 20 limited the ability of our state government to restrict the possession and use of firearms on its own property. Much less did anyone intend that Section 20 or the Preemption Bills would open our Parks and Forests, and those of Kent County, to weapons possession and use.

         Had they argued that Section 20 was a silent destroyer of the government's ability to continue longstanding policies regulating use of its own land, the need for the proponents to grandfather existing municipal regulations and to make assurances to members of the General Assembly about the limited purpose of Section 20 suggests that they would likely have not succeeded in securing the necessary votes.


         In the wake of its adoption, no proponent of Section 20 sought to challenge the Regulations. That is telling because the NRA, one of the appellants' friends in amicus, was the driving force behind Section 20, as our explanation of the legislative history shows.[162] Yet, after Section 20 was passed, the NRA at no time sought to sue and argue that it invalidated the Regulations. Nor did its local affiliate, the DSSA, despite being quite active in the legislative process, procure even the introduction of a bill proposing to overturn the Regulations.[163]

         Consistent with the General Assembly's confirmed purpose in adopting Section 20, we find no seismic shift in Delaware's regulation of firearms. Rather, in the years following the adoption of Section 20, the state's regulation of firearms was true to its historical approach.


         Delaware continued to restrict concealed carry of deadly weapons. In fact, in 1989, the General Assembly re-codified Delaware's concealed carry licensing statute as it was written, but provided that "no requirements in addition to those specified in this paragraph may be imposed for the renewal of a license."[164]

         And Delaware courts held that the limited nature of the concealed carry permit did not change in light of the adoption of Section 20, noting that Delaware's concealed carry statute is "supported by a legitimate State interest."[165] In considering whether the conditions attached to a concealed carry license abridge a "fundamental" constitutional right, the Superior Court noted: "A license to carry a concealed deadly weapon is not one of the 'fundamental' rights guaranteed by the federal constitution, the state constitution, or by the courts."[166] The Superior Court applied a rational basis test to the challenge to the conditions placed on a concealed carry permit, reasoning "no 'fundamental' right to bear arms exists and a restriction or condition on a license to carry a concealed deadly weapon may be imposed without violating the Applicant's right to substantive due process."[167] And in 2005, this Court reiterated that the defendant had the burden of proving possession of a concealed carry license and noted that Delaware's concealed carry statute predated Section 20 and was unchanged by it.[168]

         The State also continued to restrict firearm possession and use in other ways. For example, in 1990, the General Assembly directed educational institutions with on-campus housing to develop regulations "governing the possession and use of firearms on campus by employees, students, and visitors."[169] In 1991, this Court affirmed the constitutionality of the General Assembly's prohibition on firearm possession by convicted felons.[170] In 1994, the General Assembly made it unlawful to allow a minor access to a firearm.[171] A year later, it recognized the crime of aggravated menacing, when a person "display[s] what appears to be a deadly weapon [and] intentionally places another person in fear of imminent physical injury."[172]

         And Delaware, [173] and the United States, [174] continued to recognize the rights of property owners-including the government[175]-to exclude others from their land.


         The common and accepted understanding that neither Section 20 nor the Preemption Bills were meant to infringe on the government's right to restrict the possession and use of firearms on its own land was further confirmed in 1998, when our largest county, New Castle County, prohibited the possession or discharge of firearms in its parks:

No person shall carry a knife upon his or her person having a blade three (3) inches or longer in length or have possession of or discharge a BB gun, air rifle, pistol, firearm, paint ball gun, bow and arrow or any other type of lethal weapon in any park.[176]

         New Castle County's parks offer many of the same activities as our Parks, [177]including educational and other activities for children, [178] and host sporting events, [179] at which spirits often run high and tempers can flare. The New Castle County parks also host annual events, such as Carousel Park's overnight family camping event, Sleep Under the Stars, which, since May 2000, [180] has attracted thousands of residents to New Castle County parks for a night of activities such as hayrides, a dance party, art activities with the Delaware Children's Museum, a tent decorating contest, and movie screening.[181]

         The New Castle County ordinance was never challenged under either Section 20 or the Preemption Bills, or by a bill in the General Assembly to overturn it. To this day, the prohibition on possession of firearms in parks is still in the New Castle County Code, [182]included in trail guides available to the public, [183] and posted on event-specific registration websites park visitors use to sign up for certain events.[184] And Kent County's parallel ban dating from 1981 remains in effect.[185] That these county ordinances are in full force suggests that the Preemption Bills were neither intended nor understood to disturb county-level regulation of firearm possession and use on county property.[186]


         Against this backdrop of continued firearm regulation, unchanged by the adoption of Section 20, the Supreme Court of the United States in 2008 and 2010 decided the two cases that began the appellants' process of discovering what Section 20 meant and impelled this facial challenge: District of Columbia v. Heller and McDonald v. City of Chicago.[187]Heller and McDonald addressed the issues that inspired Delaware's and other states' adoption of a state constitutional right to bear arms: that the Second Amendment had been long held: i) not to apply to the states; and ii) not to protect an individual right to bear arms outside the collective right to raise a militia.


         At issue in Heller was a series of ordinances passed by the District of Columbia that the Supreme Court Majority found amounted to a "total ban" on the possession of handguns anywhere within the city including in private residences, and on the possession of other operable firearms within the home.[188] The challenged ordinances were held to be a total ban because they: i) criminalized the carrying of an unregistered firearm; ii) prohibited the registration of a handgun; iii) prohibited the carrying of a handgun without a one-year license issued by the chief of police; and iv) required that firearms other than handguns that could have been lawfully possessed within the District of Columbia be unloaded and dissembled or bound by a trigger lock, unless located in a place of business or used for recreational activities.[189] Under these ordinances, the respondent, Dick Heller, a special police officer authorized to carry a handgun while on duty at a judiciary building, was not granted a registration certificate for a handgun he wanted to keep at home.[190] The five-to-four Majority, addressing the constitutionality of this citywide ban on handguns, resolved the issue of whether the Second Amendment guaranteed an individual right to bear arms in the manner sought by gun ...

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