Delaware Supreme Court Holds Gun Ban Unconstitutional

This case summary was prepared in part by Joshua Jacobs.
In Bridgeville v. Small,[1] the Delaware Supreme Court considered whether regulations enacted by the Division of Parks and Recreation of the Delaware Department of Natural Resources and Environmental Control (“DNREC”) violated and Department of Agriculture (“DOA”) violated Article 1, Section 20 of the Delaware Constitution (“Section 20”). The challenged regulations enacted by the DOA and DNREC essentially banned the carrying of firearms (with narrow exceptions for permitted hunting) in state parks and forests.[2]  On December 23, 2016, the Delaware Superior Court had ruled on cross-motions for judgment on the pleadings, holding that the challenged regulations were constitutional.[3]

The Supreme Court overturned this holding. The Court's reasoning was based on three basic points. First, the Court held that Section 20, as interpreted in Doe v. Wilmington Housing Authority,[4] protects an individual right to bear arms outside the home. Second, the Court ruled that a borderline total prohibition of the right to bear arms cannot pass muster under any level of scrutiny. Finally, the Court found that unelected officials cannot enact regulations that ban fundamental rights under the Delaware Constitution.

Constitutional Review

The Court compared the text of the Second Amendment and that of Section 20 of the Delaware Constitution, which comparison revealed the extent to which Section 20 guarantees a more expansive set of rights than the U.S. Constitution. Based on this analysis, the Court found that the challenged regulations clearly violate Section 20. This is because the court held in Doe that Section 20 “specifically provides for the defense of self and family in addition to the home” and that it “protects the right to bear arms outside the home.”[5]

Having noted the broad reach of Section 20 the Court then addressed the ability of officials to vary these rights. In State v. Bender,[6] the Court found that the ability to amend the Constitution is not an exercise of a “general power of government” and thus falls under the Reserve Clause. The Court notes that while the precise meaning of the Reserve Clause may have been “lost in the mists of time” it at a minimum means that “unelected officials cannot enact regulations which totally ban fundamental rights set forth in Article I.”[7]

The Court further engaged in a lengthy review of the history of the right to bear arms in Delaware. In broad strokes the Court asserts that Section 20 is the result of the cumulative effect of legislation and political tradition favoring an individual right to bear arms. The Court then notes that Section 20 was modeled on the Second Amendment, and that therefore the U.S. Supreme Court’s holding in District of Colombia v. Heller[8] serves as a confirmation that Section 20 protects an individual right to keep and bear arms for a variety of purposes, including the “core purpose” of self defense, both within and outside the home.[9]  

The Regulations

In addressing the regulations themselves, the Court noted that Delaware’s right to public carry for self-defense is “fundamental but not absolute”. [10] The Court recites a list of valid restrictions on gun possession including prohibitions on certain types of firearms, allowing courts to order people subject to PFA’s to surrender their firearms, banning possession of a firearm in a public place while under the influence, etc. However, the Court finds that a total ban of possession of firearms for self-defense in Delaware’s State Parks and Forests “is not the sort of restriction that passes constitutional muster.” Id.
This is because Section 20 protects a “bundle of rights—including hunting, recreation, and the defense of self, family, and State”. The fact that one of these rights, in this case hunting, may be exercised during some parts of the year by some citizens does not result in the requisite “wide class of cases” in which regulations can be constitutionally applied so as to enable it to survive a facial challenge.[11]

Level of Scrutiny

In Heller the U.S. Supreme Court held that “complete prohibitions” of Second Amendment rights are automatically invalid and need not analyzed under any particular tier of scrutiny.[12] Accordingly, because the regulations in this case do not allow any possession of firearms “one might legitimately argue that we need not apply any level of scrutiny”.[13]
However, the Court found that even under intermediate scrutiny (the standard applied in Doe) the regulations would still fail, because the DOA and DNREC had not: (1) articulated their important government objective; (2) demonstrated that the regulations are substantially related to achieving those objectives; and (3) shown that they have not burdened the fundamental right to bear arms in self-defense more than is reasonably necessary to ensure that the asserted government objectives are met. Rather, the agencies relied heavily on their general interest in “law enforcement, keeping the peace, and public safety”. However, in Doe the Court held that to pass muster the state must show more mere “general safety concerns”.[14] Moreover, even if the concerns were valid, the regulations burden the right to bear arms more than is reasonably necessary because they are out of step with acceptable, narrowly focused, place-based restrictions. For example, the restrictions at issue in Bridgeville were far more restrictive than 11 Del. C. § 1457, which creates the crime of possession of a weapon in a school zone, only when another independent offense is also committed in that place.[15]
Furthermore, the Court points out that the General Assembly has already restricted counties and municipalities from regulating firearms in areas such as parking lots and parks. The Court held that it would strain credulity to believe that General Assembly would intend to forbid elected officials in the ‘historic City of New Castle’ from enacting firearms regulations, yet allow agency officials to ban firearms in the entirety of Redden State Forest, an area nearly five times as large.[16]


The Court concludes by stating that responsible, law-abiding Delaware citizens should not have to give up access to state parks in order to enjoy their constitutional right to bear arms for self-defense. Further, that a blanket place restriction, that bans firearms entirely, and which takes no account of areas that are actually ‘sensitive’, presents a situation where a facial challenge must succeed.


In the aftermath of the Supreme Court's ruling in Bridgeville, DOA and DNREC passed emergency regulations banning firearms in certain areas of state parks and forests:

State officials have written a new version of a gun ban in state parks and forests following a recent state Supreme Court decision declaring a full ban unconstitutional.

The state Department of Natural Resources and Environmental Control and state Department of Agriculture published emergency regulations this week, about three weeks after Supreme Court justices shot down the decades-old ban.

The revised rules outline specific places within parks and forests, such as visitor centers, group camping areas and lodges, where it will be illegal to carry weapons.


The emergency regulations are valid for 120 days, and then can be renewed for another 60 days. Both agencies said in a press release they plan to propose new, permanent regulations.

Further analysis, including excerpts from the very lengthy dissent, can be found at the Volokh Conspiracy.  It remains to be seen whether the new regulations will be challenged.



[1] Bridgeville Rifle & Pistol Club, Ltd. v. Small, 2017 WL 6048843, at **1-22 (Del.).  Berger Harris partner and Business Law Basics co-author Brian Gottesman represented certain parties who submitted amicus curiae briefs in support of the Appellants.
[2] Bridgeville, 2017 WL 6048843, at *1.
[3] Bridgeville Rifle & Pistol Club, Ltd. v. Small, 2016 WL 7428412, at *8 (Del. Super.).
[4] Doe v. Wilmington Housing Authority, 88 A.3d 654, 665 (Del. 2014).
[5] Doe, 88 A.3d at 665.
[6] State v. Bender, 293 A.2d 551 (Del. 1972).
[7] Bridgeville, 2017 WL 6048843, at *7.
[8] District of Colombia v. Heller, 554 U.S. 570 (2008).
[9] Bridgeville, 2017 WL 6048843, at *2.
[10] Bridgeville, 2017 WL 6048843 at *14.
[11] Id. (citing Hazout v. Tsang Mun Ting, 134 A.3d 274, 287 (Del. 2016) (“Blanket judicial invalidation of a statute’s words should not ensue if the statute can be applied constitutionally in a wide class of cases, but might operate overbroadly in some more limited class of cases”)) (emphasis added).
[12] Heller, 554 U.S. at 629.
[13] Bridgeville, 2017 WL 6048843, at *21.
[14] Doe, 88 A.3d at 666-67.
[15] Bridgeville, 2017 WL 6048843, at *18.
[16] Id.