courtesy wdde.org

In another victory for a broader interpretation of Second Amendment rights outside the home, the Delaware supreme court has ruled that the Wilmington Housing Authority cannot limit the right to keep and bear arms to the interior of its properties. [Click here to read the decision.] Doe v. Wilmington Housing Authoritychallenged the original ban of firearms from all WHA properties. That policy was amended to prohibit firearms in common areas after the Chicago McDonald decision. But today’s ruling (available here) makes clear that the Second Amendment extends beyond the limits of the home. Here’s the money quote: “…our interpretation of Section 20 is not constrained by the federal precedent relied upon by the WHA, which explains that at the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of ‘hearth and home.’ We agree with Residents that Article I, Section 20 is not a mirror image of the Second Amendment and that the scope of the protections it provides are not limited to the home.”

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59 Responses to BREAKING: DE Supreme Court Rules RKBA Extends Outside the Home

    • After considering this briefly, I find it strangely…comforting.

      Too bad there’s not a recipe for “Hot to induce M.I. in irrational liberals”

    • Where’s many-digits-mikey? He should be good for a laugh or two, or at least something bombastic.

      • I’m pretty sure that Mikey Numbers is climbing into, and drowning in, a magnum bottle of Chianti right about now..

    • These small victories add up. The anti crowd planned to kill gun rights by a thousand cuts. This is one of the thousand cuts that will destroy their position. Celebrate it.

      • Exactly, when a case finally does reach the SCOTUS we have a mountain of lower court precedents to dump on their desk.

        • Which, of course, will be so much more clear and succinct than, 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.

          /sarc

        • There’s a fight in the courts right now, and judges are seeing where the wind is blowing. If there’s one thing they hate, its getting slapped down by their superiors for being wrong. The pro-2a rulings are all well reasoned and supported by prior supreme court rulings while the antis are all just “becuz state, intermediate scrutiny, its not infringing.” We need to keep on the attack and support ILA, SAF, GOA and the other groups fighting the gun grabbers.

        • Unfortunately, this won’t be one of those precedents. Apparently the author of the article didn’t read the decision very closely, because it has nothing to do with the 2nd Amendment. The housing authority tried to argue that court rulings that limited the 2nd Amendment outside the home should allow for their restrictions, but the court basically said that the 2nd Amendment, and any federal rulings about it, were irrelevant, because the Delaware state constitution (specifically Article 1, section 20) allows people to carry guns outside, and so the ruling is based on this article of the Delaware constitution, not on the 2nd Amendment.

      • This decision is Aloe Vera for some of the thousand cuts. If this trend continues, then there is a balm in Gilead!

    • That’s a small victory on its own, but has the potential to produce other victories. If you think of gun control as a brick wall we need to dismantle, this may only be one brick removed, but it’s a brick fairly low on the wall, which can destabilize many other bricks.

      It’s a state level supreme court (in the state that elected Joe Biden repeatedly, no less) affirming the RKBA is a right that exists outside the home. People can use that in future cases to sue over the may issue nature of DE carry permits, or DE’s lack of recognition of interstate permits. People in other states and federal court can use the DE ruling as precedent in overturning gun control.

      And it’s momentum in the gun-liberty direction.

      In short: woohoo!

  1. LOL, the Brady bunch were so excited about this 2 years ago.. Can’t wait to see the look on their faces when they get yet another loss underneath their belt. When are people going to figure out that they are a lost cause and nothing more than a waste of money? Who knows.

  2. Cue Anti-gunner collective myochardial infarction in 5…4…3…2…

    Which would be an even bigger victory.

  3. This bit of the decision doesn’t surprise me, but it does sicken me:

    “[S]trict scrutiny is a tool to determine whether there is a cost-benefit justification for governmental action that burdens interests for which the Constitution demands unusually high protection.”

    Our natural, civil and Constitutionally protected right to keep and bear arms is subject to a cost-benefit analysis? Geddowdaheah!

    • Well, actually there is and to my knowledge always has been.

      Warning: non-lawyer discussion follows; I welcome correction.

      For example, there are known and well established exceptions to the 4th Amendment, the most notable is exigency to preserve innocent life.

      It has been ruled that in those cases, the “government’s interest” to work to preserve innocent life outweighs a strict adherence to swearing an affidavit affirming probable cause to secure a warrant to enter.

      There are other cases, too, such as certain exceptions to hearsay with the 6th’s confrontation clause (dying declarations and the like).

    • No rights considered by the Supreme Court have been construed as absolute; all rights at some point in time must be measured against the rights of the group/state/government. Your right to free speech is overburdened by the right of the State to maintain the peace, and you may be prosecuted for inciting riot, notwithstanding that your weapon is purely words. Your right to practice your religion may be overborne by the State’s right to out law murder and, thus, human sacrifice. Your right to privacy may be eliminated completely if the State has reasonable cause to believe that you have committed a crime. Even your right to remain silent may be overcome, in very limited circumstances, as long as the State guarantees that your testimony cannot be used against you. And so on and so forth.

      What the Delaware court said about strict scrutiny is correct: strict scrutiny does not mean that the holder of the right always wins, it means only that there is a very heavy thumb on holder’s side of the scale. If you want absolute freedom, you must divorce yourself from the company of man.

      • Each of those examples that you present involved an actual criminal act. The keeping and bearing of arms, by itself, is not nor should it be construed to be, a criminal act. A better analog would be someone carrying and then murdering someone or overtly threatening another.

        • Agree. All the examples above are after the fact restrictions/limitations, meaning that you are responsible how you use your rights and you will pay if others rights were infringed by you exercising the said rights. There needs to be a victim to be a crime, it needs for your exercise to result in somebody being injured. With 2A they try to do that before anything happens. Owning a piece of hardware don’t infringe on anybody’s rights. There are no victims. I don’t understand how the judges can argue that with a straight face.

    • Yes, same here. Shall not be infringed often seems to be a slogan to government and not a real command. It’s not about crime… it’s about tyranny.

      Sometimes, I can’t help but think that the People behave much like a cuckolded husband. The wife (government) continues to break the rules by cheating and the husband gets his hopes up when she does some little thing ‘right’. “Oh, she held my hand yesterday… we’re on the right track!.” Well Hoo-friggin-ray. IMHO, a divorce is in order.

      Don’t get me wrong. I DO believe this ruling is a good thing. However, I recognize that it’s so far away from shall not be infringed as to be laughable (if it wasn’t so sad). Even if we were to worm our way to something even close to constitutional, we’ve trained our government and our people that it’s perfectly okay for government to infringe over multiple generations. Many have gone to prison or otherwise had their lives destroyed, directly or indirectly, due to these infringements. Some have lost their lives over it.

  4. This is great news, but unfortunately they look to the Delaware constitution (which they say is somewhat broader than the US constitution) and also apply intermediate scrutiny. On the up side, they quote Heller a bunch of times and refer to sister states which preserved the RKBA. Except for that red-headed stepchild state Marylandstan. A W is still a W of course.

      • I’m afraid you are right, this decision does nothing to recognize that the 2nd A applies outside the home. Dan seems to have misread his “money quote”. But then, it is a state court decision anyway, it has no precedential value outside of Delaware.

      • Agreed, that the DSC’s holdings on the ‘certified questions’ handed to them by the U.S. 3rd Circuit are controlling only as to Delaware law, whether applied by Delaware courts or others, for example the 3rd Circuit. I do not think the opinion does nothing for the cause. I believe restrictions on RKBA are common among municipal housing authorities, especially as to carrying for self-defense in common areas. Many states have a constitutional provision similar to Delaware’s or Pennsylvania’s. This case, while ruling on Art.1 §20 of the Delaware constitution, provides positive guidance for such authorities, and as much as relies on the rationales of Heller and McDonald to reach its conclusion. For Delaware residents the holding is certainly positive. We are in the midst, after all, of a state by state evolution of gun law under Heller and McDonald. Obviously more guidance is needed from SCOTUS as to the extent of the 2nd amendment right in certain details. (Magazine capacity comes to mind.) But the court is in the habit of awaiting activity in the states before ruling more broadly. This case is one more positive instance of such state rulings.

    • Section 15 of the CT Constitution is also broader and clearer. Hasn’t helped so far.

      SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

      • Isn’t Connecitcut considered “shall issue in practice”? It’s a lot better than some other states in the area, so it has helped.

  5. Wow and MDA was a flury on twitter saying 15 states increased gun laws.
    I wonder how many states are affected by this?
    It seems like every time they claim a victory it turns out not so much..

  6. I hate to be so cynical in the face of an obvious victory, but what good does it do when State legislators and law enforcement ignore even the Heller decision on a regular basis with impunity. Perhaps a little less impunity each day…..perhaps.

    How soon before you have to wear a scarlet letter “G” to exercise your rights outside your home?

  7. These small victories can and do lead to other victories later on. Think of it like a snowball rolling downhill. A lot of times it runs into a granite outcropping and stops before it gets too big. But sometimes, it just keeps going and going and leads to something bigger.

  8. Can I also point out that concerns over groups of armed men prevented agreement on the text of the constitutional amendment until 1987 (p14). Cue open carry debate in 3…2..1…

    • The Delaware process to achieve issuance of a Special License to Carry a Concealed Deadly Weapon (CCDW) is long, expensive and subjective. You must advertise in a newspaper that has a circulation of at least 35% of residences in your zip code your intention to apply for a CCDW, submit passport style photographs that are larger than passport photos, pay to be fingerprinted by the State Police which is only done certain days and only at one State Police Troop in each county, submit to an investigation by the State Bureau of Investigation and the FBI, and if you have passed all this, the Attorney General (Beau Biden, yes the son of the moron VP) can reject you for any reason and so can the Presiding Superior Court Judge in your county. You are also required to pass a CCDW course and fire at least 100 rounds from your pistol at the training to demonstrate your proficiency. This process generally takes from two to twelve months. I went to Pennsylvania to get a non resident permit there after receiving my Delaware permit and that process took less than twenty minutes.

  9. The New Jersey Supreme Court is ruling on whether or not RKBA extends outside the home soon too. Get ready for some of the most ridiculous bullshit you’ve ever read in a court opinion. They will of course say no and then hilarity shall ensue as they try to explain why. Inb4 “It’s different cuz da children!!1!”

  10. What’s the timeline for en banc in Peruta again? How much longer before the appeals window closes?

    Keeping track of all these cases is hard for a non-lawyer. :p

  11. This decision has nothing to do with the second amendment. This was the federal appellete court asking the Deleware Supreme Court two Certified questions about Deleware’s right to keep and bear arms under Article 1, section 20 of the Deleware Constitution. This is Deleware’s RTKBA amendment, passed in 1987 and more detailed in language than the second amendment. The case doesn’t touch upon the 2nd amendment because the federal district court found the regs not in violation of the 2nd and the plaintiffs did not appeal. The district court also found no violation of Deleware’s RKBA for the same reason it found no 2nd amend violation. However they ARE appealing that. This is the Appeals court askung DE Supreme Court for their opinion. DESC responds that the DE A1S20 is NOT the same as the 2bd amendment, as the wording is very different. As such the prohibition on lawful firearms in the common areas of DE government public housing is a violation of A1S20, sine the housing authority was unable to show a compelling gov interest that could survive intermediate scruitiny.

    It is a victory for gun rights in Deleware, and that isn’t a bad thing.

    • I agree, but let me knit pick about the ‘wording is very different’ bit:

      I cannot find in the text of the opinion a statement that the court decided the Delaware provision, Art.1 §20, was substantially different from the 2nd Amendment, that “DESC responds that the DE A1S20 is NOT the same as the 2bd amendment, as the wording is very different.” Instead, they referred to the the seven criteria offered by Hunt v. State, see State v. Hunt, 450 A.2d at 962 (N.J. 1982) (Handler, J., concurring). Then they simply noted that “those criteria do ‘share a common thread –that distinctive and identifiable attributes of a state government, its laws and its people justify recourse to the state constitution as an independent source for recognizing and protecting individual rights,” (Jane Doe v. WHA at 13). The court then goes on to enunciate what the Delaware provision means, and why. I think we cannot know which of the seven criteria from Hunt most swayed the Delaware court. We can guess, of course.

      • From pp15 of the document:
        On 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.
        Section 20
        specifically provides for the
        defense of self and family
        in addition to
        the home.
        Accordingly, o
        u
        r
        interpretation
        of Section 20 is
        not constrained by
        the
        federal precedent relied upon by the WHA,
        which explains that at the core of the Second Amendment is the right of law

        abiding, responsible citizens to use arms in defense of “hearth and home.

        Sorry for the broken paste from the document see it here: http://origin.library.constantcontact.com/download/get/file/1112478400891-35/DOE+V+WHA+-+SUPREME+COURT+OPINION+%28U0094638%29.pdf

  12. I just wish for one of these courts to give the SAFE Act and/or the Connecticut gun law the ultimate bitch slap.

  13. I live in Delaware and have enjoyed watching the lefties twitching on the floors today because of this decision. This state used to be moderately conservative but now resembles a Karl Marx fan club which makes this even more entertaining.

    • Amen to that neighbor. We lost the legislature and will never see a R as governor. Mintner was at least a pro-gun Governor who signed a few good bills for us.
      Thank the transplants from MD, Jersey and PA for the change.

  14. Considering the anti gun crew currently in Dover this is good news. And it sends a message that the DE court won’t necessarily back gun restrictions.

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