176 A.3d 632 (Del. 2017), 15, 2017, Bridgeville Rifle & Pistol Club, Ltd. v. Small

Docket Nº15, 2017
Citation176 A.3d 632
Opinion JudgeVALIHURA, Justice, for the Majority:
Party NameBRIDGEVILLE RIFLE & PISTOL CLUB, LTD.; Mark Hester; John R. Sylvester; Marshall Kenneth Watkins; Barbara Boyce, DHSc RDN; Roger T. Boyce, Sr.; and the Delaware State Sportsmen’s Association, Plaintiffs Below, Appellants, v. David SMALL, Secretary of the Delaware Department of Natural Resources and Environmental Control; Department of Natural ...
AttorneyFrancis 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. M...
Judge PanelBefore STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ and TRAYNOR, Justices, constituting the Court en Banc. STRINE, Chief Justice, dissenting, with SEITZ, Justice, joining:
Case DateDecember 07, 2017
CourtSupreme Court of Delaware

Page 632

176 A.3d 632 (Del. 2017)

BRIDGEVILLE RIFLE & PISTOL CLUB, LTD.; Mark Hester; John R. Sylvester; Marshall Kenneth Watkins; Barbara Boyce, DHSc RDN; Roger T. Boyce, Sr.; and the Delaware State Sportsmen’s Association, Plaintiffs Below, Appellants,

v.

David SMALL, Secretary of the Delaware Department of Natural Resources and Environmental Control; Department of Natural Resources and Environmental Control; Ed Kee, Secretary of Delaware Department of Agriculture; and Delaware Department of Agriculture, Defendants Below, Appellees.

No. 15, 2017

Supreme Court of Delaware

December 7, 2017

Submitted: September 13, 2017

Page 633

[Copyrighted Material Omitted]

Page 634

[Copyrighted Material Omitted]

Page 635

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.

OPINION

VALIHURA, Justice, for the Majority:

Page 636

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

Page 637

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

Page 638

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...

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5 practice notes
  • Delaware Gun Restrictions Held Unconstitutional
    • United States
    • LexBlog United States
    • October 15, 2018
    ...scrutiny. Doe v. Wilmington Housing Authority, 88 A.3d 654, 666 (Del. 2014)(previously highlighted on these pages); Bridgeville I, 176 A.3d at 656. Notable Principles of Law The Court held that the Agencies’ designation of camping areas as “sensitive,” and thus further restricting individua......
  • 896 F.3d 1044 (9th Cir. 2018), 12-17808, Young v. State of Hawaii
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 24, 2018
    ...adopted this interpretation of Heller’s "most acute" language. See Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) ("[T]he Heller Court’s statement that ‘the need for defense of self, family, and property’ is ‘m......
  • Young v. State, 072418 FED9, 12-17808
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 24, 2018
    ...adopted this interpretation of Heller's "most acute" language. See Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) ("[T]he Heller Court's statement that 'the need for defense of self, family, and property' is 'm......
  • THE RIGHT TO BEAR ARMS: FOR ME, BUT NOT FOR THEE?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 43 Nbr. 2, March 2020
    • March 22, 2020
    ...firearm may be carried openly in Virginia except where prohibited by statute). (130.) Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 644 (Del. 2017) ("Delaware is--and always has been--an 'open carry' state." (citing Doe v. Wilmington Hous. Auth., 88 A.3d 654, 6......
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3 cases
  • 896 F.3d 1044 (9th Cir. 2018), 12-17808, Young v. State of Hawaii
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 24, 2018
    ...adopted this interpretation of Heller’s "most acute" language. See Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) ("[T]he Heller Court’s statement that ‘the need for defense of self, family, and property’ is ‘m......
  • Young v. State, 072418 FED9, 12-17808
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 24, 2018
    ...adopted this interpretation of Heller's "most acute" language. See Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 651 n.100 (Del. 2017) ("[T]he Heller Court's statement that 'the need for defense of self, family, and property' is 'm......
  • Delaware State Sportsmen's Association v. Garvin, 101118 DESUP, K18C-05-047JJC
    • United States
    • Delaware Superior Court of Delaware
    • October 11, 2018
    ...to enable a law enforcement officer to undertake a background check. Notes: [1] Bridgeville R. &P. Club v. Small, 176 A.3d 632 (Del. [2] Id. at 636. [3] Id. at 644. [4] Under those regulations, the holders of concealed carry permits and both active and qualified reti......
1 firm's commentaries
  • Delaware Gun Restrictions Held Unconstitutional
    • United States
    • LexBlog United States
    • October 15, 2018
    ...scrutiny. Doe v. Wilmington Housing Authority, 88 A.3d 654, 666 (Del. 2014)(previously highlighted on these pages); Bridgeville I, 176 A.3d at 656. Notable Principles of Law The Court held that the Agencies’ designation of camping areas as “sensitive,” and thus further restricting individua......
1 books & journal articles
  • THE RIGHT TO BEAR ARMS: FOR ME, BUT NOT FOR THEE?
    • United States
    • Harvard Journal of Law & Public Policy Vol. 43 Nbr. 2, March 2020
    • March 22, 2020
    ...firearm may be carried openly in Virginia except where prohibited by statute). (130.) Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 644 (Del. 2017) ("Delaware is--and always has been--an 'open carry' state." (citing Doe v. Wilmington Hous. Auth., 88 A.3d 654, 6......