This post was written by Eckert Seamans attorney Jamie Inferrera.

A Delaware court recently issued a decision reaffirming an individual’s right to keep and bear arms outside of the home. In Delaware State Sportsmen’s Association and the Bridgeville Rifle and Pistol Club v. Delaware Department of Natural Resources and Environmental Control and Delaware Department of Agriculture, C.A. K18C-05-047-JJC (Del. Super. Oct. 11, 2018), the Plaintiffs challenged a new regulation that prohibited firearms in camping areas of state parks and state forests where people sleep overnight with their families, such as lodges, as well as related restrictions that extended beyond what state statutes provide.

This case was based in part on the Delaware Supreme Court’s ruling in Bridgeville Rifle and Pistol Club, Ltd. v. Small, Del. Supr., No. 15, 2017 (Dec. 7, 2017) (“Bridgeville I”)(previously highlighted on these pages), where the High Court found regulations that banned firearms in all areas of the state parks to be a violation of both the Second Amendment of the U.S. Constitution, and Article I, Section 20, of the Delaware Constitution. Section 20 recognizes a right to bear arms that is much broader than the Second Amendment, and expressly enumerates the right to bear arms for the protection of self, home, family, state, as well as for recreational and hunting purposes.

In a 41-page opinion on cross motions for summary judgment, the Delaware Superior Court held that the new restrictions, while more narrowly-tailored in scope than the blanket restrictions in Bridgeville, were in part both constitutionally and statutorily invalid.

Brief Factual History

Following the Delaware Supreme Court’s decision in Bridgeville I, the State Agencies drafted emergency regulations restricting the possession of firearms in designated “sensitive areas,” which included camping areas in state parks and state forests. The Agencies developed an administrative record including public comments, a hearing officer’s report and legal responses from the Delaware Department of Justice. The Plaintiffs challenged the regulations within two weeks of the effective date.

State’s Burden of Proof

The Court noted the complex nature of the burden of proof in this case. The Plaintiffs challenged both the illegality of the regulations because of statutory preemption and the unconstitutionality of the regulations. Typically, the plaintiff holds the burden of proof challenging the legality of regulations and the regulations are presumed valid. However, when the constitutionality of regulations are challenged, it is on the agency to establish their constitutionality and the regulations are subject to intermediate 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 individuals from carrying firearms, does not survive intermediate scrutiny.

  Right to Bear Arms

The Court noted that the straightforward language in Bridgeville I recognizing “the people’s right to have a firearm while camping overnight in a State park,” Bridgeville I, 176 A.3d at 638, presents a high hurdle to satisfy intermediate scrutiny. The Court took guidance from Bridgeville I and summarized a three-part test for determining if an area’s designation as “sensitive” satisfies intermediate scrutiny: (1) Is there a controlled entry point? (2) Are visitors screened by security? (3) Is the area supervised by law enforcement personnel or easily accessible to law enforcement and emergency responders?

The Court found that the administrative record did not support finding that the aforementioned test is met for camping areas. The Court further noted that the administrative record was void of any evidence that demonstrates that the regulations are related to achieving the Agencies’ generalized safety concern. Thus, the Court struck camping areas of state parks and state forests from the regulations.

  Fourth Amendment Rights

The Plaintiffs also challenged a portion of the regulations that would permit law enforcement officers to ask an individual for identification sufficient to undertake a background check. The Court held that “[t]hese regulations give unfettered discretion to law enforcement to stop visitors, question them and require identification without requiring a scintilla of evidence of criminal activity.” The regulations pertaining to the request for identification were held to be facially unconstitutional, whereby “no set of circumstances exist under which the [regulations] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). A facial challenge to a regulation is the most difficult type of constitutional challenge to mount successfully. Id. The Court struck the portion of the regulations as unconstitutional under both the Fourth Amendment and Article I, Section 6 of the Delaware Constitution.

The Court also struck down a provision of the regulations whereby the Agencies attempted to overreach their authority and recognize out-of-state concealed carry permits for visitors of state parks and state forests. The Delaware Attorney General has the sole authority to issue concealed carry permits. 11 Del. C. §1441(k). The Court held that this portion of the regulations was preempted on state statutory law grounds.

As an appendix to its opinion, the Court provided a redlined version of the regulations that showed the stricken portions that it held unconstitutional and preempted in its opinion. (A local paper published one of several articles about the case.)