On Wednesday, June 10, the Delaware Supreme Court is set to hear oral arguments in DE Department of Safety andHomeland Security, et al. v. Birney,et al; a case that will have a huge bearing on the right to keep and bear arms for young adults in the state.
Delaware prohibits adults under the age of 21 from purchasing most common firearms. In fact, the law forbits purchasing or otherwise obtaining any firearm that falls outside the state’s definition of “shotgun” or “muzzle-loading rifle.”
The Delaware Shooting Sports Association, Bridgeville Rifle and Pistol Club, and an individual named George Birney challenged the law when it took effect in 2022, and last fall the Delaware Superior Court sided with the plaintiffs, ruling that the law violates Article 1, Section 20 of the Delaware constitution, which states:
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.
An 18-year-old is a person, yet under the challenged law they are forbidden from purchasing or obtaining the most common firearms used for self-defense, hunting, and recreational uses. This should be a slam dunk case, especially since there is no national tradition of denying adults access to their Second Amendment rights based on the newness of their adulthood.
The Superior Court, however, didn’t use the “text, history, and tradition” test spelled out by the U.S. Supreme Court in Bruen. Instead, the judge concluded that state supreme court precedent required him to examine the statute under using intermediate scrutiny; a legal middle ground that allows for governmental restrictions on rights so long as those restrictions “serve important governmental objectives” and are substantially related to the achievement of those objectives, without burdening the right more than is “reasonably necessary” to ensure the asserted governmental objective is met.
Judges around the country have used intermediate scrutiny to uphold gun control laws by arguing that the state has a legitimate government interest in public safety, and the challenged law is substantially related to that interest without unduly burdening an individual and their rights. In Delaware, however, the Superior Court judge correctly concluded that while public safety is a legitimate government interest, banning young adults from purchasing most firearms in an unreasonable approach to keeping the public safe… and an infringement on the right to keep and bear arms found in the state constitution.
The state appealed, and gun control group Giffords authored an amicus brief submitted to the Delaware Supreme Court that argues “the court erred in concluding the law burdened late adolescents’ right to self-defense more than was reasonably necessary to reduce the disproportionate rate of gun violence by this age group.”
In response, the plaintiffs argued that “the test itself is wrong after the U.S. Supreme Court in 2022’s New York State Rifle & Pistol Association v. Bruen held that gun restrictions must have a historical analogue to satisfy the Second Amendment.” They contended that the Delaware high court should “adopt that originalist approach,” so that the “state constitutional right to arms remains at least as protective as the federal right.” This decision came after Bruen “effectively raised the federal floor through a test less deferential to government regulation.”
I don’t think the law can survive under either intermediate scrutiny or “text, history, and tradition.” It’s too broad to pass muster under intermediate scrutiny, and it’s too ahistorical to be upheld under the latter test.
If young adults can be disarmed under the theory that they’re more prone to acts of violence, they why couldn’t older adults be disarmed under the theory that they’re more prone to acts of self-harm? In either case, we’re talking about a very small percentage of any particular age-based demographic that’s misusing firearms. The vast majority of them will not use a gun in the commission of a violent crime or suicide. Punishing the many for the acts of a few is an undue burden on most 18-to-21-year-olds, or those 65 and older.
I hope this will be as easy a call for the state Supreme Court as it was for the Superior Court, but if the Delaware Supreme Court upholds the law, we can expect Birney to be appealed to SCOTUS, which is already holding on to nearly a half-dozen other cases challenging gun bans for under-21s.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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