A bill seeking to circumvent ongoing litigation over a controversial state gun law will advance after clearing a House committee earlier this week, despite unanswered questions over its legality or practicality.
Under a 2021 state law, it is a felony offense to own or manufacture so-called “ghost guns” — firearms and components lacking serial numbers. The law also bars the use of a 3-D printer to make a “firearm, firearm receiver, or major firearm component” or distributing data files that could be used to create such devices.
However, that law has been under a federal injunction since September 2022. U.S. District Court Judge Maryellen Noreika found that the ban likely infringes on citizens’ Second Amendment rights, noting that the right to keep and bear arms includes the right to manufacture them. The court emphasized that the self-manufacture of firearms is a deeply rooted tradition in American history and that the state had not provided sufficient evidence to justify the ban.
The 2021 law also lacked a clear path for people owning unserialized guns or parts to move into compliance.
On Wednesday, the House Judiciary Committee released House Bill 418, which the sponsors say is intended to “clean up” Delaware’s ghost gun law. The proposal would create a protocol for individuals who already possess unnumbered firearms to comply by having them serialized through a federally licensed dealer or rendering them inoperable. The measure would continue to prohibit the possession of any firearm lacking a serial number, with violators facing a class D or E felony.
“The bill…is intended to address a specific portion of the injunction that prevented this law from going into effect in Delaware,” said Delaware Deputy Attorney General John Taylor. “I can’t address the specifics of the ongoing litigation except to say the Department of Justice believes it is constitutional.”
Committee member, State Rep. Jeff Hilovsky (R-Long Neck, Oak Orchard) challenged that statement. “How is this possibly constitutional?” he asked. “Physical seizure of personal property without any remedy or compensation. Depriving [a citizen] of personal property without a hearing [violating]…due process.”
In a later exchange with Rep. Hilovsky, the bill’s prime sponsor, State Rep. Kendra Johnson (D-Bear, New Castle) said, “We are trying to do the right thing for people by making a good faith effort to allow folks to legally possess their guns.”
Rep. Hilovsky responded, saying that while the new legislation may be “less unconstitutional” compared to the law it is trying to fix, “it’s still unconstitutional.”
Rep. Johnson disagreed, stating: “Constitutional versus unconstitutional, I think that is a point of reference or a frame of mind. I understand that you believe it to be unconstitutional. I don’t see it that way…We see this in two very different ways.”
Jeff Hauge, president of the Delaware State Sportsmen’s Association, testified before the committee, saying the new proposal misses the mark. He noted that the U.S. Supreme Court decision in New York State Rifle & Pistol Club v. Bruen, which was issued the year after Delaware’s original ghost gun law was enacted, fundamentally changed how the constitutionality of firearms laws is assessed. He said under that standard, House Bill 418 is just as flawed as the statute it is trying to patch.
National Rifle Association lobbyist Rick Armitage told the lawmakers the proposal has a more pragmatic problem. “FFLs (federal firearm license holders) are not trained gunsmiths. How are they going to assign and put a serial number on a frame…and how are they going to identify that hobbyist as the manufacturer?… How are you going to make this work? I don’t understand, and I don’t think it was explained to the committee.”
The bill was voted out of committee on a party-line vote, with majority Democrats accounting for the measure’s release. The bill is now on the House Ready List and is eligible for consideration on the House floor.
IN PHOTO, FROM LEFT: House Judiciary Committee members, State Reps. Jeff Hilovsky and Charles Postles (R-Milford North) listen to testimony during Wednesday’s hearing on House Bill 418.
