A review of 2018’s many gun bills

DOVER — In March, after a bill to ban dozens of firearms classified as “assault weapons” became public, gun control opponents created a Facebook group to coordinate their efforts, with the aim of convincing lawmakers to vote down the measure.

The group, Delaware Gun Rights, gained more than 20,000 members in three days and became a fixture at Legislative Hall over the ensuing three months.

In the end, the assault weapon measure, as well as several other bills gun rights advocates saw as overreaches (or worse) failed, partly due to the vocal opposition expressed by some Delawareans.

But other, less controversial measures did find success among the host of gun bills the General Assembly considered this year.

Both supporters and opponents of gun control see 2018 as a success, although those pushing the proposed limitations did admit some frustration over the bills that failed.

“Anyone who was paying attention knows that the Governor and members of the General Assembly made tremendous progress this year on enacting gun and school safety laws that will make our communities safer,” a spokesman for Gov. John Carney said in a statement.

“The Governor has signed laws that will keep firearms away from those who intend do harm to themselves or others. We banned bump stock devices, strengthened penalties on straw purchases, and partnered with other states through the States for Gun Safety Coalition to intercept the flow of illegal weapons across state borders.

“In September, Governor Carney will sign legislation that will require school districts to upgrade their safety infrastructure. Governor Carney believes that limiting access to assault weapons — the weapons of choice for mass shooters — would make our state safer, and yes, he is disappointed that legislation failed in the Senate. That should not distract from the fact that Delaware made significant progress this year on gun safety, and is a national leader on this issue.”

The Giffords Law Center to Prevent Gun Violence praised Delaware last month in an email blast, saying the state “continued to build upon its success enacting gun safety laws.”

According to the Pew Charitable Trusts, states passed a total of 50 gun control laws this year in reaction to several mass shootings, particularly a Feb. 14 massacre at Stoneman Douglas High School in Parkland, Florida.

Mental health

To much fanfare, lawmakers unanimously approved two bills aiming at keeping firearms out of the hands of people who should not have them. The first, House Substitute 1 for House Bill 302, created a path for mental health providers to report a person believed to be dangerous to themselves or others and have the individual’s guns taken away.

The measure would specifically prohibit people who have been committed to an institution for a mental disorder or found not guilty of a violent crime by reason of insanity, guilty but mentally ill or mentally incompetent from owning firearms unless they can prove they are no longer suffering from a disorder.

Once the law goes into effect at the end of October, mental health professionals will be required to inform law enforcement and arrange for an individual to be hospitalized or committed if a threat is made. Psychiatrists and similar providers have discretion to reveal confidential discussions to authorities.

If a law enforcement agency receives a report of someone who owns firearms and is believed to be dangerous, it will be obligated to investigate. Should the agency determine probable cause, it must file a report with the Department of Justice and seek from the Justice of the Peace Court a mandate for that person to give up his or her guns and ammunition.

The individual in question will not be notified ahead of time or given a court hearing.

The order is good for 30 days, unless the Department of Justice chooses to seek an indefinite extension with the Superior Court or requests 15 more days to file a petition. A Superior Court decree requires a hearing to be held within 15 days if the accused person requests one.

Decisions by the Superior Court could be appealed to the Delaware Supreme Court.

The bill is based off one introduced in 2013 in the wake of the infamous shooting at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012. That measure was approved by the House overwhelmingly but failed in the Senate.

“We should have passed the damn thing five years ago,” House Speaker Pete Schwartzkopf, D-Rehoboth Beach, said last week.

Still, better late than never.

Protection orders

Similar to House Substitute 1 for House Bill 302 is House Substitute 1 for House Bill 222. The law, which takes effect two days after Christmas, will allow a person to obtain a lethal violence protective order, a decree forbidding someone from keeping or buying firearms.

Under the measure, an individual who feels someone’s safety is threatened by a gun owner can file a petition with either the Justice of the Peace Court or the Superior Court, depending on whether the petitioner believes the person in question “poses an immediate and present danger of causing physical injury to self or others by controlling, purchasing, owning, possessing, controlling, purchasing, having access to, or receiving a firearm.”

An emergency request will mandate a hearing be held by the Justice of the Peace Court within 24 hours and will not require the individual in question to be notified. Should the court find probable cause, it will immediately either command the person to surrender his or her guns to law enforcement or instruct authorities to seize any firearms.

The emergency order will last no more than 45 days and require the Superior Court to conduct a full hearing within 15 days.

Nonemergency petitions must be heard in the Superior Court within 15 days of being filed, and all Superior Court meetings will allow the accused to speak.

The standard for the Superior Court procedure is clear and convincing evidence, a more substantive requirement than probable cause.

A Superior Court directive will last one year, although the individual subjected to the decree could apply to have it lifted if that person can prove there is no longer a danger in him or her possessing guns. The order can be continually renewed for a year.

Both laws give the courts power to prohibit the person in question from living with someone who has guns.

“Mental health is massive and we’re not addressing it and these things will help,” Sen. Dave Lawson, R-Marydel, said last week. “I’m certain they’ll help. Will they cause some angst? Yeah, probably. Any time you address things that have gone awry people don’t like change.”

In both cases, the sponsor worked with law enforcement, the courts and gun rights advocates to create a compromise amenable to most.

Bump stocks

Also successful — but only after months of speculation and legislative ping-pong that saw the two chambers combine to pass it five times — was a bill banning bump stocks and other devices that accelerate the rate of fire.

Bump stocks gained prominence after an Oct. 1 shooting in Las Vegas, which saw a gunman equipped with several bump stock-enabled firearms kill 58 people attending a country music concert. It was the deadliest mass shooting in American history.

The First State is one of several jurisdictions to ban such devices since the incident.

House Bill 300 criminalizes possession, sale, purchase or transfer of bump stocks and trigger cranks. A first offense of simply having a bump stock is a Class B misdemeanor, while any subsequent violation or attempt to transfer or receive such devices is a Class E felony.

The bill creates a buyback program, compensating Delawareans who turn in the devices to the tune of $100 per bump stock and $15 per trigger crank. A total of $15,000 will be allocated, with the program ending once that funding expires or one year passes.

Although nearly every member of the General Assembly agreed bump stocks should be banned, they differed as to the punishment for having one and if current owners should be compensated.

After the House initially passed it, the Senate amended the bill to lower the penalty from a Class E felony to a Class B misdemeanor for a first instance of having, transferring or receiving a bump stock and a Class G felony for any other instance. The change also increased penalties for use during a crime.

The amendment angered the main sponsor, House Majority Leader Valerie Longhurst, D-Bear, who spent six weeks considering her options before the House took the bill up again. The chamber by a large margin voted to make possession a Class A misdemeanor and sale, purchase or transfer a Class E felony. Once again, however, the Senate sent the bill back with a change, attaching an amendment that reduced the penalty for possession to its current form.

A Class A misdemeanor has a maximum sentence of one year in jail, while the penalty for a Class B misdemeanor is up to six months.

Ultimately, the House passed the bill with no further changes, marking the end of a long saga that left some Republicans questioning why it was so drawn-out.

The General Assembly also okayed legislation increasing the penalty for straw purchases — buying a gun for someone who legally cannot own one — from a Class F to a Class E felony, although the impact of that is expected to be minor.

Assault weapons

No bill was more controversial than Senate Bill 163. Modeled after Maryland’s ban on assault weapons, the measure would have forbidden the purchase of dozens of handguns and rifles while grandfathering in current owners of such models.

Opponents were outraged, attacking the bill as unconstitutional and unnecessary.

“You have to focus on the criminal,” said Jeff Hague, president of the Delaware State Sportsmen’s Association, the local affiliate of the National Rifle Association. “You have to focus on the causation, not the object.”

But to supporters, the bill would have been a crucial tool in preventing mass shootings by making it harder to obtain weapons capable of killing dozens in a very short period of time.

The measure stalled in a Senate committee, with Sen. Bruce Ennis, D-Smyrna, joining Minority Whip Greg Lavelle, R-Sharpley, and Sen. Lawson in voting not to let it out.

The main sponsor later attempted to suspend the rules to force a floor vote, but it failed, as Sen. Ennis, Sen. Brian Bushweller, D-Dover, and every Republican present voted it down.

“It’s shameful that there wasn’t the support to have a full Senate debate,” Sen. Bryan Townsend, D-Newark, said last month.

Proponents of gun control pointed to June polling conducted by SurveyUSA on behalf of Everytown for Gun Safety Action Fund that indicated a majority of Delawareans support stronger gun limits. On every one of the five bills included in the survey, at least 69 percent of respondents said they are in favor.

Just a few lawmakers were able to kill bills backed by most of the population, Sen. Townsend, the main sponsor of the assault weapon bill, said. He plans to bring the measure back, potentially with a few changes, next year.

“You hope that those legislators do a better job of representing the strong majority of people,” he said.

Conversely, to Mr. Hague, the “Carney-Townsend gun ban” was an attempt to “demonize an object” and score political points instead of crafting good policy.

Age, magazines and storage

House Substitute 1 for House Bill 330 would have required someone to be at least 21 to buy a rifle. Currently, anyone 18 or older can purchase a rifle in Delaware, although the minimum age to buy a handgun is 21.

The bill contained exemptions for active-duty military personnel, law enforcement and individuals with concealed carry permits and would have let parents give firearms to their underage children.

Possession of a rifle by someone younger than 21 would have remained legal.

The legislation passed the House but then was tabled in the Senate, where it sat for the next three months until the clock ran out, as supporters were unable to gain the votes to kill Republican amendments

The measure came in the wake of the Parkland incident. The shooting, which killed 17 people, was perpetrated by a 19-year-old who reportedly used a rifle he legally bought.

“I don’t think the bills that we put out there were that extreme to the point where we affected people’s livelihoods or any of their rights, especially my bill that raised the age from 18 to 21,” Rep. Schwartzkopf said. “It got caught up with the fact that the NRA put out there it’s a violation of constitutional rights, and I don’t believe it is.”

Also unsuccessful this year was a proposal to ban large-capacity magazines, initially defined as anything capable of holding more than 10 rounds and then set to be amended to an upper limit of 17.

It made it out of committee in the House but did not receive a floor vote.

A bill revising the crime of unlawfully permitting a child access to a firearm, a class A misdemeanor, to create a broader offense called unsafe storage of a firearm never saw the Senate floor after passing the House.

Under the bill, an unauthorized person accessing a firearm would have resulted in a criminal charge for the gun owner. If person with the gun used or attempted to use it to commit a crime or injure someone or gave it to another individual prohibited from having a firearm, it would have been a Class A misdemeanor. Absent any of those qualifiers, the charge would have been a Class B misdemeanor.

Looking back and forward

Despite those defeats, Delawareans in favor of greater restrictions saw the year as a productive one, even as they admitted they were disappointed more measures did not become law.

“I think it was a success on two fronts,” Dennis Greenhouse, chairman of the board of directors for the legislative fund of the Delaware Coalition Against Gun Violence, said last week. “One is that we got four bills passed, and the other success was that I believe three out of the four passed unanimously.”

Given that Delaware has both a Democratic Legislature and Democratic governor, why did so many of the bills fail?

Some, like Sen. Lawson, believe it’s because a majority of Delawareans, despite party affiliation, do not want gun control. In his eyes, people stood strong to defend their constitutional rights, although Sen. Lawson noted he is hesitant to call the legislative session a success because he believes several of the bills should not have been even filed in the first place.

Part of the explanation for the failure can be traced back to the First State’s strong hunting tradition, particularly downstate, which some people feared would be lost if the gun control bills passed.

On the flip side, some feel the people opposed to gun control are outnumbered by those who supported the bills but are better organized and much more vocal.

“It’s not going to be overnight that we can all of a sudden have the infrastructure that gun safety opponents have had for decades now, including their funding, where they show up at a moment’s notice to oppose common-sense legislation,” Sen. Townsend said at a rally in June.

Rep. Schwartzkopf believes the NRA and others played on Delawareans’ fears and presented false information. Some people who spoke to him objecting to the age bill simply did not know what it did and did not do, such as thinking it would raise the age to buy a shotgun, he noted.

“It’s bad enough when you’re trying to get somebody to do something based on factual information,” he said.

In March, he accused Sen. Lawson of telling “a flat out lie” on Facebook, accusing the Republican of deliberately sharing false information. Sen. Lawson rejected the charge at the time.

Republicans expect gun control supporters will try again next year, although Rep. Schwartzkopf noted the substantial turnover in the General Assembly — 12 lawmakers are retiring and two representatives are running for Senate seats — could preclude that depending on how the elections go.

How much the gun debate impacts the Sept. 6 primary and Nov. 6 general elections remains to be seen.

While gun bills will presumably remain polarizing, legislators will likely push some school safety measures, which could see strong bipartisan support, next year.

In an effort to prevent school shootings, lawmakers created a $5 million fund for school safety improvements and are now requiring all new schools to have a vestibule to screen visitors, bulletproof glass, an intruder alert system and classroom doors that can be locked from the outside.

“I think a lot of schools should take the route that Indian River School District took in terms of going to referendum and employing school safety officers,” Sen. Brian Pettyjohn, R-Georgetown, said last week.

He believes taxpayers are willing to pay a little more to help protect children.

Rep. Jeff Spiegelman, R-Clayton, has a similar hope.

“I don’t want to turn it into a fortress, but at the same time, events around the country have shown we do need to make sure our schools have things like key entry, panic buttons, cooperation with local law enforcement,” he said.

The debate over firearms may have cooled for now, but it is all but guaranteed to heat up once more.

“With every mass shooting that happens, these issues will come up again,” Rep. Schwartzkopf said.

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