Article I, § 20 of the Delaware Constitution, enacted in 1987, 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.”

In a 1991 case, Short v. State, the Delaware Supreme Court rejected defendant’s article I, § 20 challenge to Del. Code Ann. tit. 11, § 1448, which prohibits the possession of a deadly weapon by a convicted felon.1  The court noted that “[c]ourts throughout the country…have uniformly ruled that the right to bear arms as guaranteed in various state constitutions…may be subject to reasonable restrictions for the public safety, including limitations on possession by persons with criminal records.”2

More recently, in Doe v. Wilmington Hous. Auth., the Delaware Supreme Court specifically endorsed intermediate scrutiny as the appropriate level of review for challenges brought under article I, § 20.3  In ruling that a public housing authority could not prohibit the display or carry of firearms in common areas, or require residents to produce their permit or license upon request, the court found that “[a]lthough the right to bear arms under the Delaware Declaration of Rights is a fundamental right, we have already held that it is not absolute…[t]he General Assembly’s careful and nuanced approach [with respect to the right to bear arms] supports an intermediate scrutiny analysis that allows a court to consider public safety and other important governmental interests.4  Applying intermediate scrutiny, the court found the WHA’s policies to be so overbroad as to “functionally disallow[] armed self-defense in areas that [r]esidents, their families, and guests may occupy as part of their living space.”5  As a result, the court concluded that these policies impermissibly infringed on “the fundamental right of responsible, law-abiding citizens to keep and bear arms for…defense.”6

With respect to the public carrying of firearms, in Smith v. State, the Delaware Supreme Court rejected an article I, § 20 challenge to Del. Code Ann. tit. 11, § 1441, which requires a permit for the carrying of a concealed weapon.7  The court rejected defendant’s argument that article I, § 20 entitles a person to conceal the weapon that he or she carries, noting that “[the] provision contains no language that entitles a person to conceal the weapon he carries. Rather, any such entitlement involves only a privilege to carry a concealed weapon–a privilege that is regulated by statute.”8

Finally, in Griffin v. State, the Delaware Supreme Court adopted a balancing test for the specific context of as-applied challenges to the state’s concealed carry statute.9  Under this three part test, adopted from the Wisconsin Supreme Court opinion in State v. Hamden,10 “[f]irst, the court must compare the strength of the state’s interest in public safety with the individual’s interest in carrying a concealed weapon.  Second, if the individual interest outweighs the state interest, the court must determine, ‘whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute.’  Third, the individual must be carrying the concealed weapon for a lawful purpose.”11  In elaborating on this test, the court noted that while the individual interest in carrying a concealed weapon was strongest in one’s home, that interest shifts in favor of the State once public safety is implicated (here, because the police were present and asking about a concealed weapon in response to a report of a domestic dispute).12  The court remanded the case for further factual findings to determine whether the defendant was lying about the location of a concealed knife.

 

Notes
  1. Short v. State, 586 A.2d 1203 (Del. 1991). ⤴︎
  2. Id. at *2. See also Green v. Green, 702 A.2d 926 (Del. 1997) (rejecting defendant’s argument that a protective order limiting contact with his ex-wife and prohibiting the possession of a firearm for the duration of the order violated his “right to bear arms;” the opinion did not refer directly to article I, § 20). ⤴︎
  3. 88 A.3d 654, 667-69 (Del. 2014). ⤴︎
  4. Id. at 667. ⤴︎
  5. Id. at 668-69. ⤴︎
  6. Id. at 667. ⤴︎
  7. Smith v. State, 882 A.2d 762 (Del. 2005). ⤴︎
  8. Id. at * 8 (emphasis in original). See also Application of Wolstenholme, No. 92M-04-006, 1992 Del. Super. LEXIS 341, *6 (Del. Super. Ct. Aug. 20, 1992) (holding that the “right to bear arms…does not include a right to carry a concealed deadly weapon”). ⤴︎
  9. Griffin v. State, 47 A.3d 487 (Del. 2011). ⤴︎
  10. 264 Wis. 2d 433 (2003). ⤴︎
  11. Griffin, 47 A.3d at 490. ⤴︎
  12. Id. at 491. ⤴︎