COMMENTARY: Delaware’s own right to keep and bear arms

There has been much discussion in recent days about the Second Amendment to the United States Constitution, what it means, its origin and its application in today’s society. One recent letter published in this paper opined that the Founding Fathers had no concept of today’s firearms or today’s society, implicitly inferring that the United States Supreme Court in both the Heller and McDonald decisions simply got it wrong. While it is tempting to respond to that argument, it is not necessary to do so, because here in Delaware we enjoy our own Constitution with its own, more modern, and much more expansive guarantee of the fundamental right to keep and bear arms.

Article I Section 20 was added to our Delaware Constitution in 1987 and reads as follows: “A person has the right to keep and bear arms for defense of self, family, home and State, and for hunting and recreation”.

Sigler, John by .

John C. Sigler

The Delaware Supreme Court has analyzed and ruled upon the meaning and history of that provision in two relatively recent cases, Doe v. Wilmington Housing Authority in 2014, and Bridgeville Rifle & Pistol Club v. Small in 2017. From those two decisions we learn the following:

1. The Second Amendment is a floor below which our State may not legally proceed, but above which our State may go in terms of protecting the fundamental rights of its citizens;

2. “Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state”;

3. “On its face, the Delaware Constitution is intentionally broader than the Second Amendment”;

4. “Like citizens of our sister states at the founding, Delaware citizens understood that the ‘right of self-preservation’ permitted a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury’”;

5. “The General Assembly’s stated purpose in enacting the constitutional amendment in 1987 was to ‘explicitly protect the traditional right to keep and bear arms’ which it defined in the text of the amendment” which now stands as Art. I Sec. 20; and

6. “Article I Section 20 of the Delaware Constitution is an independent source for recognizing and protecting the right to keep and bear arms.”

By dissecting or parsing the plain language of Art. I Sec. 20, we note that there is a right to “keep” arms and another right to “bear” arms. We know from various cases that “keep” means to “possess” or “own”, and that “bear” means to “transport” or “carry”.

We then note that there are a total of six activities listed in Art. I Sec. 20 for which a person may constitutionally and legally “keep” and/or “bear” arms: (1) defense of self; (2) defense of family; (3) defense of home; (4) defense of State (meaning Delaware); (5) hunting; and (6) recreation. So, putting it all together, by adopting those twenty-three simple words contained in Article I Section 20, the Delaware General Assembly effectively protected twelve separate, distinguishable, and defensible rights for the citizens of the State of Delaware.

Looking at the legislative history of this provision, it is abundantly clear that in 1987 those men and women of modern times, when passing this provision, not once but twice, in two consecutive General Assemblies knew exactly what they were doing – and they did so knowing full well the range of modern arms and contemporary uses they were protecting.

They were fully cognizant of modern firearms of the time such as the Colt AR-15 semi-automatic sporting rifle and the Glock semi-automatic pistol, and with the standard capacity magazines that were the normal equipment for both. They also knew that felons and the mentally ill did not have the same rights as others and that Delaware had years ago already banned the ownership and possession of machine guns and true assault weapons. They also had no intention of changing any of those laws, and they knew that their passage of Article I Section 20 would have no effect on those pre-existing protective provisions.

Delawareans need not worry about what the Founding Fathers of our country may have known at the time the Second Amendment was adopted in 1791, because Delaware’s fundamental right to keep and bear arms was codified in modern times and was intended to apply to today’s society and to today’s citizens who are “keeping” and “bearing” arms “for defense of self, family, home and State, and for hunting and recreation.” It is within this context that Delaware’s legislators will consider the measures currently pending before them.

Article XIV§1 of our Delaware Constitution contains the oath each member of the General Assembly takes upon assuming office. With that oath, each legislator acknowledges “that the powers of this office flow from the people”; “always to place the public interests above any special or personal interests”; “to respect the right of future generations to share the rich and historic and natural heritage of Delaware”; and to “always uphold and defend the Constitutions of my Country and my State, so help me God”.

The members of our Delaware General Assembly are all good and conscientious people. I trust that each of them will act with fidelity to their oaths of office and give full force and effect to our Constitution as they consider and vote upon SB 163 and HS No. 1 for HB 330, and all such similar measures as may come before them.

John Sigler is a Dover attorney admitted to the practice of law in Delaware, Maryland and before the United States Supreme Court. Mr. Sigler is a past president of the National Rifle Association of America and a past president of the Delaware State Sportsmen’s Association.

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