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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DELAWARE STATE SPORTSMEN’S ASSOCIATION; BRIDGEVILLE RIFLE & PISTOL CLUB, LTD.; and JOHN R. SYLVESTER, Plaintiffs, v. SHAWN M. GARVIN, in his official capacity as Secretary of the Delaware Department of Natural Resources and Environmental Control; DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL; MICHAEL T. SCUSE, in his official capacity as Secretary of the Delaware Department of Agriculture; and DELAWARE DEPARTMENT OF AGRICULTURE, Defendants.
C.A. No. K18C-05-047 JJC
PLAINTIFFS’ OPENING BRIEF IN SUPPORT
OF THEIR MOTION FOR SUMMARY JUDGMENT
ECKERT SEAMANS CHERIN & MELLOTT, LLC Francis G.X. Pileggi (DE No. 2624) 222 Delaware Avenue, 7th Floor Wilmington, DE 19801 302-574-7400 [email protected] Attorneys for Delaware State Sportsmen’s Association; Bridgeville Rifle & Pistol Club, Ltd.; and John R. Sylvester
OF COUNSEL: Jamie L. Inferrera ECKERT SEAMANS CHERIN & MELLOTT, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219-2788 [email protected] Dated: June 22, 2018
TABLE OF CONTENTS
TABLE OF CITATIONS ........................................................................................ iii INTRODUCTION ..................................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 3 1) Nature of the Proceedings ..................................................................... 3 2) Relevant Facts and Regulations at Issue ............................................... 3 3) Infirmities with the Regulations ............................................................ 6 STATEMENT OF THE QUESTIONS INVOLVED ................................................ 7 ARGUMENT ............................................................................................................. 8 I. THE REGULATIONS VIOLATE ARTICLE I, SECTION 20 OF THE DELAWARE CONSTITUTION ............................................................................... 8
1) Article I, Section 20 of the Delaware Constitution ............................... 8
2) The Agencies Cannot Meet their Burden of Proof to Satisfy Intermediate Scrutiny where they Infringe upon a Fundamental
Right .................................................................................................... 10 3) Camping Areas Are Not Sensitive Areas ............................................ 11
4) Rental Housing Should be Treated as Other Homes Are for Purposes of Section 20 and Second Amendment Analysis................. 16
II. THE REGULATIONS VIOLATE THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION ................................................................................... 18 1) The Second Amendment ..................................................................... 18 2) The Second Amendment Provides a Floor of Minimum Rights ................................................................................................... 18
i
III. THE AGENCIES EXCEED THEIR AUTHORITY WHEN ADOPTING THE PARTS OF THE REGULATIONS PROHIBITING POSSESSION OF FIREARMS IN TENTS, CABINS, COTTAGES, LODGES, YURTS AND IN RECREATIONAL VEHICLES .............................................................................. 21 IV. THE DELAWARE GENERAL ASSEMBLY BOTH EXPRESSLY AND IMPLICITLY PREEMPTED THE REGULATIONS ................................................... 24 1) Express Preemption ............................................................................. 24 2) Implied Preemption ............................................................................. 25 V. THE REGULATIONS RELATING TO THE REQUEST FOR IDENTIFICATION
VIOLATES THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 6 OF THE DELAWARE CONSTITUTION ................................................................................................ 28
VI. THE AGENCIES EXCEED THEIR AUTHORITY WITH DISCRETIONARY
RECOGNITION OF OUT-OF-STATE CONCEALED CARRY PERMITS .................... 32 VII. DNREC EXCEEDS ITS AUTHORITY BY GRANTING “DAY PASSES” PERMITTING VISITORS TO CARRY CONCEALED FIREARMS IN DESIGNATED AREAS ....................................................................................... 34 CONCLUSION ........................................................................................................ 36
ii
TABLE OF CITATIONS
Cases Page Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632 (Del. 2017) ............................................................................passim Camara v. Mun. Court of the City and Cty. of San Francisco, 387 U.S. 523 (1967) ............................................................................................ 28 Cantinca v. Fontana, 884 A.2d 468 (Del. 2005) ................................................................................... 25 Christiana Care Health Servs. v. Palomino, 74 A.3d 627 (Del. 2013) ..................................................................................... 24 District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................................................ 16, 18, 19 Doe v. Wilmington Hous. Auth., 88 A.3d 654 (Del. 2014) ..............................................................................passim Florida. v. Bostick, 501 U.S. 429 (1991) ...................................................................................... 29, 30 INS v. Delgado, 466 U.S. 210 (1984) ............................................................................................ 30 Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) ........................................................................................ 30 McDonald v. City of Chicago, 561 U.S. 742 (2010) ...................................................................................... 18, 19 Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ........................................................................ 14, 15 Moore v. State, 997 A.2d 656 (Del. 2010) ................................................................................... 29
iii
Morris v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 1082 (D. Idaho 2014) ............................................................... 16 New Castle Cty. Council v. BC Dev. Assoc., 567 A.2d 1271 (Del. 1989) ................................................................................. 22 State v. Retowski, 175 A. 325 (Gen. Sess. 1934) ....................................................................... 22, 23 Stoner v. State of California, 376 U.S. 483 (1964) ............................................................................................ 17 Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................................ 29 Univ. of Delaware v. New Castle Cty. Dep’t of Fin., 891 A.2d 202 (Del. Super. 2006) ........................................................................ 23 United States v. Gooch, 6 F.3d 673 (9th Cir. 1993) ............................................................................ 16, 17 Williams v. State,
962 A.2d 210 (Del. 2008) ............................................................................. 29, 30 Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) ...................................................................... 13, 19 STATUTES 3 Del. C. § 101(3) ..............................................................................................passim 3 Del. C. § 1011 ....................................................................................................... 21 7 Del. C. § 4701(a)(4) .............................................................................................. 21 7 Del. C. § 4702 ....................................................................................................... 23 9 Del C. § 303(c) ...................................................................................................... 24 11 Del. C. § 1441 ............................................................................................... 26, 34
iv
11 Del. C. § 1441(j) ........................................................................................... 32, 33 11 Del. C. § 1441(k)........................................................................................... 34, 35 11 Del. C. § 1448 .................................................................................................... 4, 6 11 Del. C. § 1457 ..................................................................................................... 11 11 Del. C. § 1902(a) ................................................................................................. 29 22 Del. C. § 111 ....................................................................................................... 24 29 Del. C. § 2504(4)................................................................................................. 35 29 Del. C. § 8003(7)..........................................................................................passim 29 Del. C. § 10141(e) ............................................................................................... 22 54 U.S.C. § 104906(b) ............................................................................................... 5 CONSTITUTIONAL PROVISIONS DEL. CONST. art. I, § 6 ........................................................................................ 17, 28 DEL. CONST. art. I, § 20 .............................................................................................. 8 U.S. CONST. amend. II................................................................................................ 2 U.S. CONST. amend. IV ............................................................................................ 28 OTHER AUTHORITIES Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 107 (2012) ...................................................................................... 25 Cesare Beccaria, AN ESSAY ON CRIMES AND PUNISHMENTS 161 (1767) .................. 16 Cottages at Indian River Marina, Delaware State Parks, http:/www.destateparks.com/camping/cottages/rates.asp ......................................... 9
v
DELAWARE ADMINISTRATIVE CODE DRAFTING AND STYLE MANUAL § 7.4 (Division of Research 2014) ...................................................................... 31 Nelson Lund, The Right to Arms and the American Philosophy of Freedom, http://report.heritage.org/pf62 (October 2016) ................................................... 19 Robert Cottrol & George Mocsary, Guns, Bird Feathers, and Over-Criminalization: Why Courts Should Take the Second Amendment Seriously, 14 GEO. J. OF L. & PUB. POL’Y 17 (2016) ........................................................... 14 Synopsis, H.B. 30, 134th Gen. Assemb. (Del. 1987) .............................................. 24 Synopsis, H.B. 554, 133rd Gen. Assemb. (Del. 1986) ............................................ 24 REGULATIONS 36 C.F.R. § 2.4 ........................................................................................................... 5 3 Del. Admin. C. § 402-8.8 .................................................................................... 1, 5 3 Del. Admin. C. § 402-8.8.1 ................................................................................... 14 3 Del. Admin. C. § 402-8.8.3 ............................................................................. 32, 33 3 Del. Admin. C. § 402-8.8.6 ............................................................................passim 7 Del. Admin. C. § 9201-7.5 .................................................................................... 12 7 Del. Admin. C. § 9201-21.1 ................................................................................ 1, 3 7 Del. Admin. C. § 9201-21.1.1 ........................................................................... 2, 14 7 Del. Admin. C. § 9201-21.1.2 ......................................................................... 34, 35 7 Del. Admin. C. § 9201-21.1.4 ......................................................................... 32, 33 7 Del. Admin. C. § 9201-21.1.7 ........................................................................passim
vi
INTRODUCTION The Defendant Agencies1 have failed to comply with the recent decision of
the Delaware Supreme Court in Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176
A.3d 632 (Del. 2017), by adopting new regulations2 that are contrary to the Delaware
Supreme Court’s interpretation in the Bridgeville case of Article I, Section 20 of the
Delaware Constitution (“Section 20”). In connection with striking down, in their
entirety, previous regulations of the Agencies that banned firearms in state parks and
state forests, the Delaware Supreme Court recognized: “ . . . the people’s right to
have a firearm for defense of self and family while camping overnight in a State Park
. . . .” 176 A.3d at 638.
Yet, despite the Supreme Court’s unambiguous instruction about the rights
recognized in Section 20, the Agencies defiantly adopted the contested Regulations
that prohibit the possession of firearms for the defense of self and family while
visitors reside overnight in state parks and state forests inside tents, cabins, cottages,
1 The Defendants in this case are Shawn W. Garvin, in his capacity as Secretary of the Delaware Department of Natural Resources and Environmental Control; the Delaware Department of Resources and Environmental Control (“DNREC”); Michael T. Scuse, in his official capacity as Secretary of the Delaware Department of Agriculture; and the Delaware Department of Agriculture (“DOA”). DNREC and the DOA may sometimes be referred to in this brief as the “Agencies.” 2 The regulations being challenged in this case are quoted in the Complaint as recent amendments to 7 Del. Admin. C. 9201-21.1, adopted by DNREC on May 11, 2018, and regulations adopted by DOA on May 11, 2018, which amended 3 Del. Admin. C. 402-8.8. These regulations may be referred to in this brief as “the Regulations.”
1
yurts, lodges and other overnight housing used by those sleeping in rented
accommodations in state parks or state forests. See 7 Del. Admin. C. § 9201-21.1.1.
The new, contested Regulations are invalid because they impermissibly
restrict fundamental rights recognized by Section 20 and the Second Amendment to
the United States Constitution.3 In addition, the Regulations exceed the authority
granted to the Agencies by the Delaware General Assembly. Also, the Regulations
are preempted by the comprehensive statutory framework that the legislature has
already imposed for the regulation of firearms throughout the State of Delaware.
The Sportsmen4 seek a declaratory judgment that the Regulations are
unconstitutional; are beyond the scope of the Agencies’ authority; and are preempted
by the existing comprehensive regulatory framework imposed by the General
Assembly for firearms regulation in Delaware.
3 “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.” U.S. CONST. amend. II. 4 The Plaintiffs in this case are Delaware State Sportsmen’s Association; Bridgeville Rifle & Pistol Club, Ltd.; and John R. Sylvester. They are sometimes collectively referred to as “Sportsmen” in this brief.
2
STATEMENT OF THE CASE 1) Nature of the Proceedings
The Sportsmen filed their Complaint for Declaratory Relief in this matter on
May 22, 2018, seeking to invalidate the Regulations. The Agencies filed an Answer
and a Motion for Judgment on the Pleadings on June 8, 2018.
This is the Opening Brief of the Sportsmen in Support of their Motion for
Summary Judgment. The Answering Briefs of the parties are due on June 29, 2018.
Optional Reply Briefs are due on July 13, 2018, and oral argument in Dover is
scheduled for July 20, 2018 at 1:30 p.m.
2) Relevant Facts and the Regulations at Issue
The parties have agreed to a Stipulation of Facts, primarily for the
admissibility of documents, and a copy is being submitted as part of the
Compendium accompanying this Opening Brief.
The Sportsmen seek a declaratory judgment that the DNREC Regulations,
effective on May 11, 2018, amending 7 Del. Admin. C. 9201-21.1, are both
unconstitutional and in violation of several statutory restrictions. Section 21.1
provides as follows:
21.1 It shall be unlawful to display, possess or discharge firearms of any description, air rifles, B.B. guns, sling shots, or archery equipment within designated areas administered by the Division, except with prior written approval of the Director, or as set forth below.
3
21.1.1 Designated areas shall include park offices, visitor
centers, nature centers, bathhouses, restaurants and snack bars, stadiums and facilities while used for sporting events, concerts, and festivals, museums, zoos, stables, educational facilities, dormitories, playgrounds, camping areas, swimming pools, guarded beaches, and water parks, and shall be identified by appropriate signage.
21.1.2 The Director may grant written approval on a daily basis
for the possession of firearms within designated areas, upon written application showing good cause related to self-defense or the defense of family, and due regard for the safety of others within the designated areas.
21.1.3 Active duty and qualified retired law enforcement officers
may possess firearms within areas administered by the Division, including designated areas, provided that proper and current credentials shall be produced upon request.
21.1.4 Delaware residents holding an active current permit to
carry a concealed deadly weapon may carry a firearm within areas administered by the Division, including designated areas, provided that the permit shall be produced upon request. Residents of other states holding an equivalent permit or license to carry a concealed firearm may be permitted to carry a concealed firearm at the discretion of the Director.
21.1.5 Firearms may be carried within areas administered by the
Division, outside of designated areas, by any person not prohibited by 11 Del. C. § 1448.
21.1.6 Law enforcement officers may limit the discharge of
firearms and the use of other weapons within areas administered by the Division, in order to protect public safety and preserve the peace.
4
21.1.7 Any person possessing a firearm shall display identification upon request, sufficient to enable a law enforcement officer to undertake a background check.5
The Sportsmen also seek to invalidate the DOA Regulations, effective on May
11, 2018, amending 3 Del. Admin. C. 402-8.8, and which provide as follows:
8.8 Target shooting is prohibited. Firearms are allowed for legal hunting and are otherwise prohibited within designated safe areas on State Forest lands, except as set forth below. 8.8.1 Designated areas shall include State Forest Offices,
education centers, and lodges, and shall be identified by appropriate signage.
8.8.2 Active duty and qualified retired law enforcement officers
may possess firearms within areas administered by the Department, including designated areas, provided that proper and current credentials shall be produced upon request.
8.8.3 Delaware residents holding an active current permit to
carry a concealed deadly weapon may carry a firearm within areas administered by the Department, including designated areas, provided that the permit shall be produced upon request. Residents of other states holding an equivalent permit or license to carry a concealed firearm may be permitted to carry a concealed firearm at the discretion of the Department.
5 It remains noteworthy that firearms are permitted in the federally-regulated national parks in Delaware with much fewer restrictions than what DNREC and DOA have imposed—despite the Second Amendment providing a more narrowly described right to bear arms compared to Section 20. See 36 C.F.R. § 2.4 and 54 U.S.C. § 104906(b). See Bridgeville, 176 A.3d at n.141.
5
8.8.4 Firearms may be carried within areas administered by the Department, outside of designated areas, by any person not prohibited by 11 Del. C. § 1448.
8.8.5 Law enforcement officers may limit the discharge of
firearms and the use of other weapons within areas administered by the Department, in order to protect public safety and preserve the peace.
8.8.6 Any person possessing a firearm shall display
identification upon request, sufficient to enable a law enforcement officer to undertake a background check.
3) Infirmities with the Regulations
Although the structure of the Regulations, regarding what is permissible
within the “designated areas,” may not be self-evident from an initial reading, as
explained by the Agencies, both the DNREC and DOA Regulations describe
“designated areas” as areas within which one will be prohibited from possessing
firearms absent a permit to carry a concealed deadly weapon. The so-called
“designated areas” include camping areas, which are defined by the Agencies to
include locations for overnight lodging such as rental cabins and other types of
housing.
The Regulations prevent visitors from exercising their constitutional rights to
protect themselves and their families while they are camping or otherwise staying
overnight in state parks or state forests, whether that be in a tent, yurt, cabin, cottage,
lodge, or trailer camper.
6
STATEMENT OF THE QUESTIONS INVOLVED
1) Do the Regulations violate Article I, Section 20 of the Delaware Constitution?
2) Do the Regulations violate the Second Amendment of the United States Constitution?
3) Whether the Agencies exceeded their authority by enacting parts of the Regulations prohibiting possession of firearms in tents, cabins, cottages, lodges, yurts and in recreational vehicles?
4) Are the Regulations preempted by the comprehensive statutory framework by
which the General Assembly regulates firearms? 5) Is the provision in the Regulations allowing the Agencies to request
identification for purposes of conducting a background check a violation of the Delaware and the United States Constitutions?
6) Whether the Agencies exceeded their authority by giving themselves the
discretion to determine which out-of-state permits to carry concealed weapons should be recognized?
7) Whether DNREC exceeded its authority by giving itself the discretion to grant “day passes” to permit visitors to carry concealed firearms in designated areas?
7
ARGUMENT
I. The Regulations Violate Article I, Section 20 of the Delaware Constitution
The Delaware Supreme Court has recognized the importance of “. . . the
people’s right to have a firearm for defense of self and family while camping
overnight in a state park . . . .” Bridgeville, 176 A.3d at 638. The Regulations
disregard this statement of binding law by the Delaware Supreme Court.
1) Article I, Section 20 of the Delaware Constitution
Section 20 provides that: “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.”
DEL. CONST. art. I, Section 20. This constitutional imperative delineates both the
rights to keep and to bear arms.
Delaware has a long tradition of allowing responsible, law abiding citizens to
keep and bear arms outside the home. Doe v. Wilmington Hous. Auth., 88 A.3d 654,
663 (Del. 2014) (unanimous en banc decision). The Delaware Supreme Court in
Doe struck down a regulation of the Wilmington Housing Authority (“WHA”) that
imposed the following restriction on residents and their guests: “[Residents and
guests] shall not display or carry a firearm or other weapon in any common area,
except where a firearm or other weapon is being transported to or from the resident’s
unit, or is being used in self-defense.” Id. at 659. The court in Doe recognized that
firearms could not be banned inside the apartments rented by the residents of public
8
housing6, id. at 668-69, which are much less expensive than the price of renting a
cottage during the peak season at the Indian River Marina in Delaware Seashore
State Park, at a cost of $1,900 per week. See Cottages at Indian River Marina,
Delaware State Parks, http:/www.destateparks.com/camping/cottages/rates.asp (last
visited June 18, 2018).
A central focus of the Sportsmen’s arguments is that the Regulations prohibit
the possession of firearms for defense of self and family in rented cabins, cottages,
lodges, yurts, tents and recreational vehicles, such as trailer campers. These housing
facilities are wholly analogous to the rental housing that the Delaware Supreme
Court in Doe recognized as being within the scope of Section 20, which protects the
right to keep and bear arms in defense of oneself and one’s family in one’s home.
Section 20 does not distinguish between rental homes or vacation homes or housing
that is owned by its inhabitants.
Section 20 expressly recognizes the right to keep and bear arms both in and
outside of one’s “home.” 88 A.3d at 665. There is no sound basis to prohibit one
from exercising that constitutional right to protect oneself and one’s family in a
“rental home” or cottage or cabin that may cost as much as $1,900 per week during
the peak season.
6 After suit was filed in Doe, the WHA revoked a regulation that prevented residents from possessing firearms in their apartments or townhouses.
9
2) The Agencies Cannot Meet their Burden of Proof to Satisfy Intermediate Scrutiny where they Infringe upon a Fundamental Right
The Supreme Court in Doe established that the State, in this case acting
through the Agencies, has the burden of proof to satisfy heightened scrutiny where
the Regulations infringe upon a fundamental right, such as the right to possess arms
in rental housing. Doe, 88 A.3d at 666. Specifically, pursuant to Doe, intermediate
scrutiny applies to the prohibition in the Regulations against the exercise of
constitutional rights in the camping areas where accommodations are available for
families to sleep overnight.
In striking down the prior DNREC and DOA regulations that the new,
contested Regulations replace, the Delaware Supreme Court explained that pursuant
to the intermediate scrutiny test 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. The Agencies are required to show more than a ‘general safety concern.’
Bridgeville, 176 A.3d at 656.
The Agencies cannot satisfy their burden to demonstrate the second and third
parts of the intermediate scrutiny test. Nor have they established more than an
inadequate “general safety concern.”
10
The Supreme Court in Bridgeville explained that one reason the prior DNREC
and DOA regulations failed the intermediate scrutiny test is because they “burdened
the right to bear arms more than is reasonably necessary.” 176 A.3d at 656. The
court held that the prior regulations were “grossly out of step” with the restrictions
adopted by the General Assembly regarding the places where firearms can be
banned. Id at 657.
The Regulations at issue in this case suffer from the same deficiencies.
3) Camping Areas Are Not Sensitive Areas
The “place” restrictions adopted by the General Assembly in existing statutes
are “purposely narrow and few in number.” Id. Delaware’s high court observed
that there was only one state-wide “place-focused” firearms regulation statute
enacted by the General Assembly, at 11 Del. C. § 1457, which added an aggravating
factor of possession in a “Safe School and Recreation Zone”—but only when
concealed carry licensees committed another crime while in those areas. Id.
The Agencies attempt to justify their prohibition by designating the camping
areas as “sensitive areas,” but that designation is contrary to the description of
“sensitive areas” in the Bridgeville opinion. The Agencies’ position on “sensitive
areas” does not satisfy the second and third prongs of the intermediate scrutiny test.
Specifically, the Supreme Court in Bridgeville described sensitive places as
exemplified by a courthouse, where visitors are screened by security, and unlike
11
state parks and state forests, have controlled entry points. Courthouses are
supervised by law enforcement personnel, but many parts of state parks and state
forests are relatively remote. Contrasting the attributes of a courthouse, the court
cited to DOA notices that warn visitors that: “Camping is at your own risk . . ..
[T]here is no after-hours, nighttime or weekend security.” Id. at 659 (citing 7 Del.
Admin. C. 9201-7.5.).
The absence of security on weekends and at night when families are sleeping
in state housing, highlights the reality that the camping areas cannot satisfy the
definition in Bridgeville of “sensitive areas.”
The Bridgeville opinion previously admonished the Agencies that:
“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.” Id. That reasoning applies to support the invalidation of the
Regulations that prevent the possession of firearms for self-defense in the camping
areas where individuals and families sleep overnight. Visitors should not have to
forfeit their right to defend themselves and their families as guaranteed by Section
20 because they rent their vacation housing or space for sleeping accommodations
from the State—instead of owning their own vacation home or camping lodge.
The Agencies argue that the Regulations are justified because a designation
of a “sensitive area” is appropriate where there are “controlled entry points” that
12
allow visitors to be screened by security. See Answer at n.20. But there are no
“controlled entry points screened by security” for visitors in their tents, cabins,
cottages, yurts, lodges or recreational vehicles.7
The Delaware Supreme Court in the Bridgeville case also rejected the view
that a place is “sensitive” simply because people gather there, holding that “densely
populated or urban areas” do not count as sensitive places that would justify
restricting the right to carry firearms. Id. at 659, n.147 (citing Wrenn v. District of
Columbia, 864 F.3d 650, 660 (D.C. Cir. 2017)). Moreover, the Agencies have not
shown more than a general safety concern to support a ban in camping areas, which
the Bridgeville court recognized as insufficient. 176 A.3d at 656.
Rather, the Delaware Supreme Court recognized in Doe and in Bridgeville
that “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.’” 176 A.3d at 659 (citing Doe, 88 A.3d at 668).
Scholars have explained that instead of promoting public safety, “[g]un
control laws have a tendency of turning into criminals peaceable citizens whom the
state has no reason to have on its radar,” as firearm offenses are “malum prohibitum
7 The classification of lodges as part of a “sensitive area” or “designated area” where the Regulations prohibit possession of firearms without a permit for overnight rentals is incredible when DOA gives visitors notice that no security is provided after hours, at night or on weekends in those areas. Bridgeville, 176 A.3d at 659.
13
offenses that ostensibly seek to prevent already-prohibited secondary conduct, and
which sometimes impose penalties greater than those for heinous malum in se
offenses.” Robert Cottrol & George Mocsary, Guns, Bird Feathers, and Over-
Criminalization: Why Courts Should Take the Second Amendment Seriously, 14
GEO. J. OF L. & PUB. POL’Y 17, 37-38 (2016). The ineffectiveness of gun control in
preventing crime has also been recognized. See id. at 39-41.
The U.S. Court of Appeals for the Seventh Circuit has recognized that
empirical data demonstrates that laws prohibiting carrying guns outside the home
have little impact on public safety in states (such as Delaware) that utilize a permit
system for public carry. See Moore v. Madigan, 702 F.3d 934, 938-39 (7th Cir.
2012). Judge Posner held in Moore v. Madigan that there was an inconclusive
correlation between firearms regulation and violence. Id. at 937.
The Sportsmen recognize that firearms may be regulated in certain locations
where state employees work and state business is being done. See Doe, 88 A.3d at
668. But, the State disregards the Doe v. Wilmington Housing Authority decision
because the Regulations prohibit the possession of firearms in areas where official
state business is not typically conducted, such as in zoos and swimming pools, as
well as in tents, lodges and camper trailers. See 7 Del. Admin. C. § 9201-21.1.1;
and 3 Del. Admin. C. § 402-8.8.1.
14
In order to carry their burden of proof, the Agencies must demonstrate that
the gun control regulations they have imposed will increase safety. This they cannot
do.
The Delaware Supreme Court rejected the sort of rhetoric that is represented
by the phrase “more guns must mean more violence” without scientific support:
WHA argues that an accidental discharge of a firearm may have serious fatal consequences and that dangers inhere in the increased presence of firearms. But these same concerns would also apply to the area within any apartment—interior locations where the WHA concedes it cannot restrict a possession of firearms for self-defense.
Doe, 88 A.3d at 667.
Likewise, just as the prohibition against possession of firearms for self-
defense in public housing was prohibited, so too, prohibiting the possession of
firearms in rented tents, cabins, lodges, cottages, yurts and recreational vehicles
should also be stricken as unconstitutional.
The link between firearm carriage and increased public safety through the
defensive of use of firearms finds support in credible scientific evidence. For
example, after reviewing the available evidence and studies, Judge Posner writing
for the U.S. Court of Appeals for the Seventh Circuit in Moore v. Madigan,
concluded that, the evidence suggested that “a right to carry firearms in public may
promote self-defense.” 702 F.3d at 942.
15
The lack of evidence demonstrating a correlation between laws banning the
possession of firearms and the advancement of public safety should not be surprising
because, as criminologists have long recognized, such laws are likely to make law-
abiding citizens less safe by “disarming those only who are not disposed to commit
the crime which the laws mean to prevent.” Cesare Beccaria, AN ESSAY ON CRIMES
AND PUNISHMENTS 161 (1767).
4) Rental Housing Should be Treated as Other Homes Are for Purposes of Section 20 and Second Amendment Analysis
At least one federal court has treated a tent as analogous to a home for
purposes of Second Amendment analysis. The United States District Court for the
District of Idaho explained why a tent should be given the same status as a house for
purposes of determining the right to possess firearms inside a home:
While often temporary, a tent is more importantly a place—just like a home—where a person withdraws from public view, and seeks privacy and security for himself and . . . his family . . .. Indeed, a typical home at the time the Second Amendment was passed was cramped and drafty with a dirt floor—more akin to a large tent than a modern home. Americans in 1791—the year the Second Amendment was ratified—were probably more apt to see a tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public understanding” at time of ratification is “critical tool of constitutional interpretation”). Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more permanent structure,” and are deemed to be “more like a house than a car.” United States v. Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry over well into the Second Amendment’s security concerns.
Morris v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 1082, 1086 (D. Idaho 2014).
16
The Delaware Constitution likewise protects both the right to bear arms in
Section 20, as well as the right against unreasonable searches and seizures. See DEL.
CONST. art. I, § 6. See generally, Stoner v. State of California, 376 U.S. 483 (1964)
(a hotel room falls within the scope of protection against unreasonable searches and
seizures).
Tents,8 cabins, cottages, lodges,9 yurts, and recreational vehicles should be
treated as analogous to one’s home for purposes of the Second Amendment right and
the right under Section 20 to possess a firearm in one’s home. The Regulations
violate these fundamental rights and are, therefore, invalid.
8 The U.S. Court of Appeals for the Ninth Circuit held that tents are protected under the Fourth Amendment as being analogous to a more permanent structure. United States v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993). “By establishing a campground, the state created a situation where campers were invited to come set up a tent. The campers could reasonably assert a legitimate, though temporary, interest in their privacy even in this short-term ‘dwelling’.” Id. at 678. 9 The expectation of privacy within overnight accommodations is the same regardless if one chooses to sleep in a tent or a cabin. See id. (“A guest at Yellowstone Lodge, a hotel on government park land, would have no less reasonable expectation of privacy in his hotel room than a guest in a private hotel, and the same logic would extend to a campsite where the opportunity is extended to spend the night.”).
17
II. The Regulations Violate the Second Amendment to the United States Constitution
1) The Second Amendment
The United States Supreme Court has established that the Second Amendment
recognizes a right to bear arms in one’s home for self-defense. See District of
Columbia v. Heller, 554 U.S. 570, 629 (2008); McDonald v. City of Chicago, 561
U.S. 742, 744 (2010) (holding that the need for defense of self and family is most
“acute” inside the home, implying that it also exists outside the home).
2) The Second Amendment Provides a Floor of Minimum Rights
Although Section 20 provides greater rights than the Second Amendment, see
Bridgeville, 176 A.3d at 652, cases discussing the less robust protection provided by
the Second Amendment are instructive for purposes of describing the minimum level
of rights guaranteed to all Americans. See 176 A.3d at 642.
The Delaware Supreme Court also recognized that the Second Amendment
has been interpreted to extend the right to bear arms outside the home and, therefore,
the right to bear arms inside one’s rental home or vacation cabin for self-defense
should apply with greater force. See Bridgeville, 176 A.3d at 651 n.100 (citing cases
interpreting Heller that recognize the right to bear arms within the home, as well as
outside the home).
The Delaware Supreme Court in Bridgeville closely examined the historical
underpinning and the current scope and meaning of the Second Amendment as
18
interpreted by the United States Supreme Court in Heller and McDonald and its
progeny. Id. See, e.g., Wrenn, 864 F.3d at 657 (the core purpose of the Second
Amendment is self-defense and the need for self-defense arises both inside the home
and outside the home). See generally Nelson Lund, The Right to Arms and the
American Philosophy of Freedom, http://report.heritage.org/pf62, (October 2016)
(copy provided in Compendium) (discussing philosophical underpinning of the
Second Amendment).
The court in Bridgeville provided three reasons why the Second Amendment
extends the right to bear arms outside the home. 176 A.3d at 651. First, Heller
recognized separate rights to “keep” and to “bear” arms, suggesting that the right to
carry is not confined to the home. Id. Second, the Second Amendment recognizes
the inherent natural right to self-defense that each person is born with, and the need
to exercise the right to self-defense may arise outside the home. Id. Third, by
emphasizing that the need for self-defense is most “acute” in the home, Heller
suggests that the need still exists, even if less acute, outside the home. Id.
The Agencies’ purported justification for the contested Regulations banning
firearms in camping areas such as cabins and cottages (i.e., the equivalent of a rental
home), is based on their classification of rental housing in state parks and state
forests as “sensitive places.” But for the same reasons that such designation fails
19
under Section 20 as demonstrated above, the “sensitive area” justification fails under
a Second Amendment analysis as well.10
10 The Agencies attempt to support their designation of “camping areas,” including cabins and cottages, as “sensitive areas,” because they are gathering places for people. See Agencies’ Answer to Complaint at ¶ 37. But the Delaware Supreme Court in Bridgeville rejected that as a bona fide safety reason because the General Assembly already allows firearms, including open carry, in other areas of the State where people gather, such as in Rodney Square in Wilmington. 176 A.3d at 656.
20
III. The Agencies Exceed Their Authority When Adopting the Parts of the Regulations Prohibiting Possession of Firearms in Tents, Cabins, Cottages, Lodges, Yurts and in Recreational Vehicles
The Supreme Court in Bridgeville found that the prior DNREC and DOA
regulations banning firearms in state parks and state forests were outside of the
authority granted to the Agencies by the legislature because the prior regulations
were inconsistent with Section 20, and therefore violated 29 Del. C. § 8003(7) and
3 Del. C. § 101(3). See Bridgeville, 176 A.3d at 661.
Pursuant to Section 4701(a)(4) of Title 7 of the Delaware Code, DNREC may
only make and enforce regulations relating to the protection, care and use of the
areas it administers. That authority is limited by Section 8003(7) of Title 29 of the
Delaware Code which states that the Secretary of DNREC may establish 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 Delaware.
For its part, the DOA has the power to devise and promulgate rules and
regulations for the enforcement of state forestry laws and for the protection of forest
lands, pursuant to Section 1011 of Title 3 of the Delaware Code; but under Section
101(3) of Title 3 of the Delaware Code, the DOA is prohibited from adopting rules
and regulations that extend, modify, or conflict with any law in the State of Delaware
or the reasonable implications thereof.
21
Regulations of DNREC and DOA restricting the possession of firearms in
state parks and state forests fall outside the scope of the Agencies’ authority because
they are inconsistent with the laws of Delaware (namely Section 20) in violation of
Section 8003(7) of Title 29 of the Delaware Code and Section 101(3) of Title 3 of
the Delaware Code.11 On that basis alone they should be stricken.
An administrative agency is a creature of limited power and when it acts
outside of its delegated power that action is void. See New Castle Cty. Council v.
BC Dev. Assoc., 567 A.2d 1271, 1275 (Del. 1989) (it is “axiomatic that delegated
power may be exercised only in accordance with the terms of its delegation.”).
It has long been recognized that when criminal liability attaches to an
administrative regulation, such as the contested Regulations in this case, special care
must be taken to ensure that the Agency action “falls within the scope of the authority
conferred.” State v. Retowski, 175 A. 325, 327 (Gen. Sess. 1934). Moreover, that
court emphasized: should “necessity exist[] to denounce acts done every day by
innocent citizens as criminal offenses, that necessity should be expressly declared
11 Although Section 10141(e) of Title 29 of the Delaware Code provides that a court should presume agency actions are valid, regulations may be struck down if a complainant 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. 176 A.3d at 660. It is black letter law that administrative agencies derive their powers and authority solely from the statute creating such agencies which defines their powers and authority. Id. at 661.
22
by the legislature.” Id. No necessity was identified by the General Assembly in the
enabling statutes of the Agencies to allow them to impose criminal penalties for
possession of firearms in rented cabins which would otherwise be permissible and
lawful activity. See Univ. of Delaware v. New Castle Cty. Dep’t of Fin., 891 A.2d
202 (Del. Super. 2006), aff’d, 903 A.2d 323 (Del. 2006) (explaining that an inferior
legislative body, such as the Agencies, cannot impose restrictions that result in the
forfeiture of rights expressly conferred in a state statute).
In this case, the contested Regulations would subject otherwise lawful citizens
to arrest, fines and even potential imprisonment. See 7 Del. C. § 4702 (stating fines
and imprisonment for unclassified misdemeanors).
This court should not condone the Agencies’ unlawful power grab and
unauthorized criminalization by unelected officials of behavior that the General
Assembly has otherwise permitted as an exercise of fundamental rights.
23
IV. The Delaware General Assembly Both Expressly and Implicitly Preempted the Regulations
In enacting Section 20, the legislature intended to “explicitly protect[] the
traditional lawful right to keep and bear arms.” Synopsis, H.B. 554, 133rd Gen.
Assemb. (Del. 1986); Synopsis, H.B. 30, 134th Gen. Assemb. (Del. 1987).
1) Express Preemption
The Delaware General Assembly has expressly preempted municipalities and
counties from regulating firearms possession. See 22 Del. C. § 111; 9 Del C. §
303(c). Sportsmen recognize that DNREC and DOA are state agencies and not
municipal or county governments, but the General Assembly intended that all
inferior governmental bodies shall be prohibited from enacting firearms restrictions.
State agencies do not have the same law-making power as the legislature in
terms of legislative authority, and the Regulations do not carry the same weight as
state statutes—or Constitutional amendments—enacted by the General Assembly.
See Christiana Care Health Servs. v. Palomino, 74 A.3d 627, 632 (Del. 2013)
(Department of Labor regulation conflicted with the Delaware Code and
impermissibly abridged the claimant’s right under a Delaware statute). Regulations
do not constitute the “law of the state.” Id.
Although the preemption statutes do not specifically address state agencies,
the negative-implication canon known as expressio unius est exclusio alterius
24
(“expression of one thing implies exclusion of others”) also has a variation that is
applicable in this case. The doctrine applies when:
the unius…can reasonably thought to be an expression of all that shares in the grant or prohibition involved. Common sense often suggests when this is or is not so. The sign outside a restaurant “No Dogs Allowed” cannot be thought to mean that no other creatures are excluded—as if pet monkeys, potbellied pigs, and baby elephants might be quite welcome. Dogs are specifically addressed because they are the animals that customers are most likely to bring in…
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts,
107 (2012) (emphasis in original).
The General Assembly explicitly preempted municipal authorities and
counties from regulating firearms, as those entities are the governmental bodies most
likely to legislate on this topic, but those entities should not be considered an
exhaustive list of governmental entities prohibited. Any governmental body below
the General Assembly in the legislative hierarchy is preempted from enacting
restrictions on firearms.
2) Implied Preemption The restrictions on lawful possession of firearms imposed by the Regulations
are preempted by the comprehensive regulatory scheme promulgated by the General
Assembly. See Cantinca v. Fontana, 884 A.2d 468, 473 n.23 (Del. 2005) (holding
that preemption may be evidenced, inter alia, “where the legislature has enacted a
25
comprehensive regulatory scheme in such a manner as to demonstrate a legislative
intention that the field is preempted by state law.”) (quotations omitted).
The Agencies’ contention that without the Regulations, firearms would be
wholly unregulated in state parks and forests is wrong. The General Assembly has
created a complex statutory framework12 relating to legal possession and carrying of
firearms that applies throughout Delaware from cities to rural communities.
Delaware law permits both open carry and licensed concealed carry in public places
throughout the majority of the State.13 These laws also apply within the state parks
and state forests.
The General Assembly has not found possession and carrying of firearms in
a majority of the public spaces throughout the State to be a risk to public safety.
Why, then, would a law-abiding citizen with a firearm in a state park or state forest
present a safety concern—but that same person would not present a safety concern
in the majority of other public places around the State where the constitutional right
to possess arms, and the natural right to self-defense, are respected? She would not.
There is no legal justification in this case for the suppression of a fundamental
right through administrative regulation. The Regulations are inconsistent with the
12 See Complaint at ¶ 18 for a list of Delaware statutes relating to the regulation and use of firearms. 13 11 Del. C. § 1441 provides that lawfully licensed individuals are broadly permitted to carry a concealed firearm.
26
laws of this State (namely, Section 20) in violation of 29 Del. C. § 8003(7) and 3
Del. C. § 101(3). Thus, the Regulations are invalid. Bridgeville, 176 A.3d at 662.
27
V. The Regulations Relating to the Request for Identification Violates the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution _____ The Regulations disregard the fundamental constitutional right of an
individual to be free from unreasonable search and seizure by requiring that “[a]ny
person possessing a firearm shall display identification upon request, sufficient to
enable a law enforcement officer to undertake a background check.” (emphasis
added). See 7 Del. Admin. C. § 9201-21.1.7; and 3 Del. Admin. C. § 402-8.8.6.
The core principle of the Fourth Amendment14 is to “safeguard the privacy
and security of individuals against arbitrary invasions by governmental officials.”
Camara v. Mun. Court of the City and Cty. of San Francisco, 387 U.S. 523, 528
(1967). This principle is fortified in Article I, Section 6 of the Delaware Constitution
(“Section 6”).15
The constitutional inquiry is two-fold: (1) whether a law enforcement officer
has the authority to request identification without reasonable suspicion and (2)
14 The text of the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. 15 Article I, Section 6 similarly states: “The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.” DEL. CONST. art. I, § 6.
28
whether a reasonable person within a designated area of a state park or state forest
would believe she has the ability to ignore a law enforcement officer’s request for
identification sufficient for the officer to undertake a background check.
Law enforcement officers are not hamstrung from initiating contact with an
individual in a state park or a state forest for the purpose of asking questions. See,
e.g., Florida. v. Bostick, 501 U.S. 429, 434 (1991) (“mere police questioning does
not constitute a seizure”); and Williams v. State, 962 A.2d 210, 215 (Del. 2008) (a
law enforcement officer asking questions, if consensual, “neither amounts to a
seizure nor implicates the Fourth Amendment”). The affirmative requirement in the
Regulations for an individual to produce identification surpasses a mere question
and constitutes an investigatory stop under the Fourth Amendment and Section 6.
The nature of an investigatory stop requires “reasonable and articulable
suspicion to believe the individual is committing, has committed, or is about to
commit a crime.” Moore v. State, 997 A.2d 656, 663 (Del. 2010);16 see also Terry
v. Ohio, 392 U.S. 1, 30 (1968). The Regulations do not require reasonable suspicion
that is otherwise needed to justify an obligatory request for identification sufficient
16 Delaware has codified the holding in Moore in 11 Del. C. § 1902(a): “A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.” (emphasis added.)
29
to undertake a background check.17 Thus, the Regulations are per se
unconstitutional.
A reasonable person’s understanding of the plain text of the Regulations
would make one feel compelled to comply with a law enforcement officer’s request
for identification sufficient to undertake a background check. An individual under
these circumstances would not feel free to walk away and ignore the police presence.
Williams v. State, 962 A.2d at 215 (the standard under the Delaware Constitution is
“whether a reasonable person would have believed he or she was not free to ignore
the police presence”). The obligatory wording of the Regulations will result in
unconstitutional seizure under the Fourth Amendment and Section 6.
The Regulations require an individual to produce identification sufficient to
undertake a background check. See 7 Del. Admin. C. § 9201-21.1.7; and 3 Del.
Admin. C. § 402-8.8.6; see also Kingdomware Techs., Inc. v. United States, 136 S.
Ct. 1969, 1977 (2016) (“shall” typically connotes a requirement, while “may”
implies discretion). The Delaware Administrative Code Drafting and Style Manual
is also instructive in providing that “shall” should be used “in the imperative sense
17 Sportsmen acknowledge the line of cases permitting a law enforcement officer merely to request to examine an individual’s identification (e.g., INS v. Delgado, 466 U.S. 210, 216 (1984)), but note that the request for identification is only permissible provided that a law enforcement officer does not convey a message that compliance is required. Florida v. Bostick, 501 U.S. at 435. The Regulations, however, require compliance.
30
to express a duty or obligation to act.” DELAWARE ADMINISTRATIVE CODE DRAFTING
AND STYLE MANUAL § 7.4 (Division of Research 2014).
Both 7 Del. Admin. C. § 9201-21.1.7 and 3 Del. Admin. C. § 402-8.8.6,
requiring the production of identification without a scintilla of reasonable suspicion,
violate the Fourth Amendment of the United States Constitution and Section 6 of
Article I of the Delaware Constitution. The Agencies exceeded their authority by
enacting regulations that are in violation of the Fourth Amendment and Section 6.
Thus, the Regulations are invalid. Bridgeville, 176 A.3d at 662.
31
VI. The Agencies Exceed Their Authority with Discretionary Recognition of Out-of-State Concealed Carry Permits
The General Assembly gives the Delaware Attorney General the exclusive
authority to decide which licenses to recognize from other states whose concealed
carry permits or licenses “are issued by authority pursuant to state law and which
afford a reasonably similar degree of protection as is provided by licensure in
Delaware.” 11 Del C. § 1441(j). However, the text of the Regulations interferes with
the General Assembly’s intent and gives the Agencies the power to decide when
“[r]esidents of other states holding an equivalent permit or license to carry a
concealed firearm may be permitted to carry a concealed firearm at the discretion of
the Director [or Department]” (emphasis added). See 7 Del. Admin. C. § 9201-
21.1.4; and 3 Del. Admin. C. § 402-8.8.3.
These Regulation are in direct conflict with the intent of the General Assembly
to grant the Attorney General sole power to decide which out-of-state concealed
carry licenses will be recognized.
While the Agencies may decide to recognize only those out-of-state concealed
carry permits that the Attorney General has already recognized (see Agencies’
Answer to Complaint at ¶ 33), 7 Del. Admin. C. § 9201-21.1.4 and 3 Del. Admin.
C. § 402-8.8.3 expressly state a contrary position.18
18 The specific use of the term “may” in 7 Del. Admin. C. § 9201-21.1.4 and 3 Del. Admin. C. § 402-8.8.3 provides the Agencies with the option to “opt-out” of
32
By granting themselves the authority to subjectively decide whether to honor
out-of-state concealed carry permits where the General Assembly has given only the
Attorney General the authority to determine which states will receive reciprocity,
the Agencies usurp the statutory authority of the Delaware Attorney General. Thus,
because the Regulations conflict with 11 Del C. § 1441(j), they are inconsistent with
the laws of this State.
DNREC is barred by 29 Del. C. § 8003(7) from promulgating regulations
which are “inconsistent with the laws of this state .…” DOA is barred by 3 Del. C.
§ 101(3) from adopting rules that “conflict with any law of [the State] .…” 7 Del.
Admin. C. § 9201-21.1.4 is in violation of 29 Del. C. § 8003(7) and 3 Del. Admin.
C. § 402-8.8.3 is in violation of 3 Del. C. § 101(3), because these Regulations
conflict with 11 Del C. § 1441(j). Thus, the Regulations are beyond the scope of the
Agencies’ authority and, therefore, must be found invalid. Bridgeville, 176 A.3d at
662.
honoring out-of-state concealed carry permits, even if the Attorney General decided otherwise. Sportsmen also note that the use of the phrase “at the discretion of the Director [or Department]” purports to allow the Agencies to refuse to follow the reciprocity directives of the Attorney General.
33
VII. DNREC Exceeds Its Authority by Granting “Day Passes” Permitting Visitors to Carry Concealed Firearms in Designated Areas____________ The prerequisites to obtain a concealed carry license in Delaware are not easy
to satisfy,19 and the General Assembly has enacted a comprehensive legislative
scheme to regulate the process, including the exclusive delegation to the Attorney
General to oversee the issuance of temporary concealed carry licenses to non-
residents.20
Inconsistent with the Attorney General’s authority, DNREC has promulgated
a regulation carving out an exception to the established statutory process. 7 Del.
Admin. C. § 9201-21.1.2 allows the Director of the Division of Parks and Recreation
(or his designee) to issue “day passes” for individuals lacking a concealed carry
license to possess a firearm in designated areas.
This circumvention of the statutory framework is outside the scope of
DNREC’s authority. In connection with approving a concealed carry license, the
Attorney General has the authority to “investigate whether the approval of the
19 11 Del. C. § 1441 outlines the intricate and lengthy process by which an individual can apply for a concealed carry permit in Delaware. 20 11 Del. C. § 1441(k) states: “The Attorney General shall have the discretion to issue, on a limited basis, a temporary license to carry concealed a deadly weapon to any individual who is not a resident of this State and whom the Attorney General determines has a short-term need to carry such a weapon within this State in conjunction with that individual’s employment for the protection of person or property.”
34
application will constitute a risk to the public peace and safety.” 29 Del. C. §
2504(4). The Director of the Division of Parks and Recreation has no appropriate
resources or relevant expertise to conduct such an investigation.
DNREC is barred by 29 Del. C. § 8003(7) from promulgating regulations
which are “inconsistent with the laws of this state .…” 7 Del. Admin. C. § 9201-
21.1.2 is in violation of 29 Del. C. § 8003(7) because it conflicts with 11 Del. C. §
1441(k). Thus, the Regulations are beyond the scope of the Agencies’ authority and,
therefore, must be found invalid. Bridgeville, 176 A.3d at 662.
35
CONCLUSION
The Regulations should be invalidated because they violate the fundamental
natural rights recognized by Article I, Section 20 of the Delaware Constitution as
interpreted by the Delaware Supreme Court, as well as the fundamental natural rights
recognized by the Second Amendment to the United States Constitution, and also
because the Agencies have exceeded their authority by enacting the Regulations. In
addition, the Regulations are preempted by the comprehensive regulatory framework
imposed by the General Assembly for the regulation of firearms throughout the State
of Delaware.
By:
ECKERT SEAMANS CHERIN & MELLOTT, LLC /s/ Francis G.X. Pileggi Francis G.X. Pileggi (DE No. 2624) 222 Delaware Avenue, 7th Floor Wilmington, DE 19801 302-574-7400 [email protected] Attorneys for Delaware State Sportsmen’s Association; Bridgeville Rifle & Pistol Club, Ltd.; and John R. Sylvester
OF COUNSEL: Jamie L. Inferrera ECKERT SEAMANS CHERIN & MELLOTT, LLC 600 Grant Street, 44th Floor Pittsburgh, PA 15219-2788 Dated: June 22, 2018
36
