DOVER, Del. (AP) — Lawyers for gun rights groups urged a federal appeals court Monday to overturn a judge's refusal to halt enforcement of Delaware laws banning certain semi-automatic firearms and They restrict the size of firearm magazines.
The Democrat-controlled Delaware General Assembly enacted laws in 2022 banning the sale of several types of semi-automatic firearms and shotguns and limiting magazine capacity to 17 rounds.
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U.S. District Court Judge Richard Andrews denied a request by opponents for a preliminary injunction halting enforcement of the laws until a court decides whether they are unconstitutional. The Delaware State Sportsmen's Association, along with other gun rights advocates, maintains that the laws violate the constitutional right of Delawareans to keep and bear arms.
Andrews ruled last year that the firearms and high-capacity magazines targeted by the laws are presumptively protected by the Second Amendment. However, he declined to issue an injunction, saying the state had sufficiently demonstrated that the guns and magazines “involve dramatic technological change and unprecedented social concerns for public safety.”
Opponents of the DE law, before the appeals court, argue that it violates second amendment rights.
The gun restrictions are consistent with the historical tradition of firearms regulation in the United States, and opponents failed to demonstrate a chance of winning their lawsuit, Andrews concluded. He also said opponents had not demonstrated that they could not adequately defend themselves with other firearms.
Delaware is one of nine states, along with the District of Columbia, that ban certain semi-automatic firearms labeled as “assault weapons” by gun control advocates. Delaware is one of 14 states, along with the District of Columbia, that restrict the size of ammunition magazines for semi-automatic weapons. The legal fight has generated briefs from “friends of the court” on both sides of the issue in several states.
“Every second of every day that Delaware law is applied, it prevents my plaintiffs from exercising their Second Amendment rights,” John Ohlendorf, an attorney representing the Firearms Policy Coalition and other appellants, told a panel of three judges in Philadelphia.
David Ross, a lawyer hired by Delaware officials, said Andrews was right to deny a preliminary injunction because the plaintiffs did not show that the laws subjected them to irreparable harm.
Ross and other supporters of the laws also rejected arguments that they should be declared unconstitutional because they target weapons and high-capacity magazines that are commonly used and owned by millions of Americans.
“Common usage is not and cannot be the exclusive criterion for analyzing the Second Amendment,” argued New Jersey Attorney General Jeremy Feigenbaum.
Instead, according to the law's supporters, a key question is whether the firearms in question are routinely used for self-defense. The answer, they maintain, is “no.”
“Their prototype hunting rifle will be useful in personal defense, in stark contrast to high-capacity magazines or assault weapons,” Feigenbaum said.
Judge Jane Roth addressed the question of self-defense, suggesting that it is not enough for opponents of the law to say only that prohibited firearms can be used for self-defense, rather than showing that they are commonly used for that purpose.
“I'm not sure about these automatic assault weapons, or whether they are used in self-defense,” Roth said, incorrectly characterizing the firearms in question as fully automatic machine guns.
Erin Murphy, an attorney representing the Delaware State Sportsmen's Association and the National Shooting Sports Foundation, quickly corrected Roth.
Murphy said arguments that guns can be banned because they are not typically used for self-defense are contrary to rulings by the U.S. Supreme Court. The court has rejected the idea that possession of semiautomatic pistols for self-defense can be prohibited as long as possession of other firearms is permitted, he said. Murphy also argued that any “bearable arm” that can be carried and used for self-defense is protected by the Second Amendment.
“You simply cannot argue that a firearm ceases to be a weapon simply because it has features like semi-automatic functionality and a detachable magazine,” he said.
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Restrictions on gun ownership have come under increasing legal scrutiny following a 2022 U.S. Supreme Court decision that set new standards for courts to evaluate such limitations. The court said judges should no longer consider whether a law restricting gun ownership serves public interests such as improving public safety. Instead, government officials must demonstrate that the proposed restriction is consistent with the country's “historical tradition of firearms regulation.”
The ruling has led courts to strike down laws designed to keep guns out of the hands of domestic abusers, felony defendants and marijuana users. Earlier this year, the Third Circuit court ruled that nonviolent felons should not be subject to lifetime bans on carrying weapons. That ruling came in the case of a man who was barred from purchasing a gun because he had pleaded guilty to misreporting his income to receive food stamps for his family in 1995.
