The Delaware State Constitution has an explicit protection for the right to keep and bear arms. It was enacted in 1987. “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. (Art. I, § 20).” It seems that some public officials take their oath of office seriously. In Lewes, Delaware, the city has a ban on the open carry of arms. The legislature, when it passed a comprehensive preemption statute, allowed ordinances that violated the statute to be grandfathered if they existed before July 1, 1985. From delmarvanow.com . . .
With Lewes’ city code being established in 1980, including their “open carry” policy, the number of “what if?” scenarios had council struggling with how they should handle the situation.
From the police department’s side, Chief Jeffrey Horvath [above] said the idea of enforcing something he sees as unconstitutional is untenable.
“The Delaware constitution says you have the right to keep and bear arms. That’s exactly how it’s worded,” Chief Horvath said.
“I don’t want to be in a position where someone is insisting ‘It’s on the books, you’re not enforcing it,’ he added. “I think we need to be able to tell the police officers that ‘this is what you’re supposed to do because it’s the right thing to do.’ ”
Many people believe that all those little northeastern seaboard states are against the right to keep and bear arms. It comes from the horrific examples set by the District of Columbia, New Jersey, New York, Connecticut and Maryland. Delaware is a “may issue” state under the law, but very close to “shall issue” in practice, and has open carry of arms without a license throughout the state.
At the moment, there is a bill on the Governor’s desk that gives municipalities the authority to ban open carry in municipal buildings. It does not give them the authority to ban concealed carry with a permit. It passed both houses on 1 July, just before the adjournment of the legislature. There are now three possibilities:
1. Democrat Governor Jack Markell can sign the bill, which will then become law. He has not done so yet, and the bill passed almost six weeks ago.
2. The Governor can veto the bill. Again, he has not done so.
3. The Governor can do nothing. In that case the bill eventually dies. It is not entirely clear when the bill would become non-viable. If the legislature was in session, and the Governor did not sign or veto it, the bill would become law in 10 days. But the legislature is not in session.
In any case, it’s not clear that ordinances passed under the bill would pass muster under the State Constitution. It’s likely that if passed, they would be challenged. Chief Horvath maintained that it would be unconstitutional:
But the idea of contradicting the Delaware state constitution did not sit well with Horvath.
He said “The chief prior to me was informed by city solicitor not to enforce it,” and maintained his stance that he saw the law as unconstitutional.
Even in the northeast, there are police chiefs that take their oath of office seriously.
©2015 by Dean Weingarten: Permission to share is granted when this notice is included.