A week after Gov. Matt Meyer signed legislation intended to “clean up” Delaware’s ghost gun law, a federal court struck down the original statute as unconstitutional.
Enacted in 2021, House Bill 125 generally sought to criminalize the distribution, possession, and manufacture of unserialized firearms, including 3-D printed firearms, and unfinished firearm components. It would also have banned the distribution of computer files used to create 3-D printed guns.
However, a federal injunction issued in September 2022 prevented the law from taking effect on the grounds that the ban likely infringed on citizens’ Second Amendment rights because the right to keep and bear arms includes manufacturing them.
The 2021 law also lacked a clear path for people owning unserialized guns or parts to comply with its mandates.
The statute has been the subject of ongoing litigation challenging its validity. That issue was decided yesterday (9/10), when the United States District Court for the District of Delaware found it unconstitutional.
The Firearms Policy Coalition, one of the plaintiffs in the case of Rigby v. Jennings, reported on the victory, observing:
In its opinion, the Court firmly rejected Delaware’s argument that unserialized firearms and unfinished frames and receivers fall outside the Second Amendment. As the Court explained, an unserialized firearm “is an arm under the Second Amendment” and “all firearms constitute ‘arms,’ whether serialized or not.” The Court likewise held that firearm frames and receivers are protected “arms,” explaining that “the constitutional understanding of ‘arms’ does not turn on serialization.” … Delaware also failed to justify its bans under the Nation’s historical tradition of firearm regulation. … Importantly, the Court observed that Delaware’s own evidence did not show that unserialized or self-manufactured firearms function differently from serialized firearms or pose dangers that other firearms do not.
To read the court’s decision, click here.
Last Thursday, Gov. Meyer signed House Bill 418. The legislation’s Democratic sponsors said it was intended to “clean up” issues with the ghost gun law struck down by yesterday’s court action.
The new law creates 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.
During a House Judiciary Committee meeting earlier this year, committee member State Rep. Jeff Hilovsky (R-Long Neck, Oak Orchard) challenged the measure. “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: “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.”
In testimony before the committee, Delaware State Sportsmen’s Association President Jeff Hauge testified that the new legislation also missed 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 was attempting to patch.
Both ghost gun laws were passed on the strength of votes by House and Senate Democrats.
It is not yet clear what impact Thursday’s court ruling will have on the viability of the new ghost gun statute.
