Delaware Open Carry
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Lawsuit re: possession of firearms in DE State Parks
http://www.deloc.org/forums/viewtopic.php?f=13&t=10719
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Author:  Owen [ Wed Mar 23, 2016 1:48 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

I never understood how any of the gun carry laws in DE are constitutional. we all know the Art 1 Sec 20. 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.

How can they have ANY carry laws when it says at the end of the DE Bill of Rights:

WE DECLARE THAT EVERYTHING IN THIS ARTICLE IS RESERVED OUT OF THE GENERAL POWERS OF GOVERNMENT HEREINAFTER MENTIONED.

e.g. Regulation of keeping and bearing arms is reserved OUT of the powers of DE State government, period, end of story.

Author:  Boots [ Thu Mar 24, 2016 1:22 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Owen wrote:
I never understood how any of the gun carry laws in DE are constitutional. we all know the Art 1 Sec 20. 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. ...
That is exactly why there are no laws in DE code prohibiting open carry.

However, there are laws restricting carrying deadly weapons concealed without a license to do so. To stay Constitutional, the State's choice was to either regulate open carry and not concealed carry, OR, regulate concealed carry and not open carry.

My main issue are regulations against carrying your defensive weapon open or concealed in places like State Parks, which is the focus of the recent lawsuit and which I heartily applaud!

Author:  California_Exile [ Thu Mar 24, 2016 3:26 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Owen wrote:
I never understood how any of the gun carry laws in DE are constitutional. we all know the Art 1 Sec 20. 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.

How can they have ANY carry laws when it says at the end of the DE Bill of Rights:

WE DECLARE THAT EVERYTHING IN THIS ARTICLE IS RESERVED OUT OF THE GENERAL POWERS OF GOVERNMENT HEREINAFTER MENTIONED.

e.g. Regulation of keeping and bearing arms is reserved OUT of the powers of DE State government, period, end of story.


What the lawyers will tell you is that Article I, Section 20 was added to the constitution in the 1980s, at a time when the system -- no permit for open carry, discretionary-issue permit for concealed carry -- was over 70 years old. It's tough to argue that Article I, Section 20 was meant to eliminate a system that was in effect and that wasn't repealed at the same time. Implicit repeal is disfavored.

Which is just another way of saying that the law means what judges say it means this week, and long-standing abuses eventually morph their way into the status of "law."

Author:  Owen [ Fri Mar 25, 2016 3:02 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

California_Exile wrote:
What the lawyers will tell you is that Article I, Section 20 was added to the constitution in the 1980s, at a time when the system -- no permit for open carry, discretionary-issue permit for concealed carry -- was over 70 years old. It's tough to argue that Article I, Section 20 was meant to eliminate a system that was in effect and that wasn't repealed at the same time. Implicit repeal is disfavored.

Which is just another way of saying that the law means what judges say it means this week, and long-standing abuses eventually morph their way into the status of "law."

I always thought it was supposed to be like this:

If you have a hierarchy in law where the constitution is higher, then any law existing or created after would be invalid if the constitution conflicts. Arguing that a previous law pertaining to the right to bear arms still applies after the state constitution was changed is to me like arguing that freed slaves can't be witnesses because that law was around prior to the 14 amendment.

But I agree that is not the way it really works. It's not really about law or logic but about the arguments made and the interpretation by judges.

Author:  California_Exile [ Tue Sep 27, 2016 8:42 am ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Someone asked about this in another thread, so here's the update on the lawsuit as of 9/27/16:

The parties had cross-moved for judgment on the pleadings (i.e., each side told the court that the case could be resolved as a matter of law without discovery and a trial) earlier this year. Vice Chancellor Glasscock held an oral argument in early June and apparently decided that the case needed to be transferred out of the Court of Chancery to the Superior Court. So the case was refiled in Superior Court in June. The new case number is S16C-06-018 THG, and it's before Resident Judge T. Henley Graves in Sussex County.

The parties renewed their cross-motions for judgment on the pleadings in the Superior Court case, and those are still pending. Judge Graves has also asked for some additional written submissions about the history of the state park and state forest regulations.

I don't have a good sense for when to expect a decision. The normal rule is that motions like this should be decided within 90 days of full submission, but it's not clear to me whether the motions have been fully submitted, or whether the Court is going to allow more written submissions or an oral argument.

Author:  Kuntryboy816 [ Wed Sep 28, 2016 9:39 am ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

California_Exile wrote:
Someone asked about this in another thread, so here's the update on the lawsuit as of 9/27/16:

The parties had cross-moved for judgment on the pleadings (i.e., each side told the court that the case could be resolved as a matter of law without discovery and a trial) earlier this year. Vice Chancellor Glasscock held an oral argument in early June and apparently decided that the case needed to be transferred out of the Court of Chancery to the Superior Court. So the case was refiled in Superior Court in June. The new case number is S16C-06-018 THG, and it's before Resident Judge T. Henley Graves in Sussex County.

The parties renewed their cross-motions for judgment on the pleadings in the Superior Court case, and those are still pending. Judge Graves has also asked for some additional written submissions about the history of the state park and state forest regulations.

I don't have a good sense for when to expect a decision. The normal rule is that motions like this should be decided within 90 days of full submission, but it's not clear to me whether the motions have been fully submitted, or whether the Court is going to allow more written submissions or an oral argument.


Thank you for bumping this thread and the update. I had pushed it to the back burner and honestly forgot this was going on.

Author:  Mirlen [ Wed Sep 28, 2016 2:46 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Sorry I didn't see this thread, Tapatalk search didn't like the keywords state parks, thought they were too generic :eyeroll:

Author:  Amy Blackthorn [ Wed Sep 28, 2016 11:49 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Thanks for the update


Sent from my iPhone using Tapatalk

Author:  Boots [ Wed Sep 28, 2016 11:59 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

Mirlen wrote:
Sorry I didn't see this thread, Tapatalk search didn't like the keywords state parks, thought they were too generic :eyeroll:
Google this:

state park site:http://www.deloc.org/forums

Author:  California_Exile [ Wed Dec 28, 2016 7:56 pm ]
Post subject:  Re: Lawsuit re: possession of firearms in DE State Parks

There was a separate thread about this, but for completeness, the Superior Court issued an opinion on 12/23/16 siding with the state's position. It's available here:

http://courts.state.de.us/Opinions/Down ... ?id=250650

If I learn of an appeal, I'll add that to the thread.

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