Supreme Court weighs gun ban in Delaware parks, forests
Posted September 13
DOVER, Del. — Delaware's Supreme Court is weighing a decision in a lawsuit challenging bans on non-hunting firearms in state parks and forests.
After hearing arguments Wednesday, the court is expected to rule within 90 days in a dispute pitting members of the Bridgeville Rifle & Pistol Club and the Delaware State Sportsmen's Association against Delaware's Department of Natural Resources and Environmental Control and the Department of Agriculture.
The plaintiffs argue that the prohibition on guns violates their rights under Delaware's constitution, which was amended in 1987 to state that individual citizens have the right to carry guns for self-defense.
"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," the constitution reads.
The state argues, however, that prohibiting guns on state park and forest lands, except for regulated hunting, is a justifiable public safety measure.
"The state is not seeking to take anyone's guns away," said deputy attorney general Ralph Durstein III. "This case is about asking folks to leave their guns at home when they go to those places."
Francis Pileggi, an attorney for the plaintiffs, argued that the right to bear arms enshrined in Delaware's constitution is stronger than the protections afforded by the U.S. Constitution, and cannot be restricted by administrative regulations.
"The legislature might be able to restrict those rights, ... but there's no clear legislative delegation of authority to a state agency to not just restrict, but in this case completely prohibit, the exercise of a fundamental right," he said.
Chief Justice Leo Strine Jr. appeared skeptical, noting that restrictions on gun possession had been in place long before the constitution was amended , and that the current legal challenge did not arise until 30 years later.
"This is a restriction that existed in the state parks for over a generation," said Strine, who questioned whether lawmakers, in amending the constitution, explicitly intended to overturn existing regulations.
But Justice Karen Valihura noted that the agriculture department, while previously regulating discharge and use of firearms, did not ban non-hunting possession of guns on forest land until 2003. She also said DNREC's ban on guns in state parks was changed several times in the 1960s and 1970s.
Durstein argued that previous court rulings have upheld the government's authority to restrict guns in "sensitive areas" such as schools and courthouses, and that parks and forests, as confined areas where the public gathers, meet that definition.
"You're claiming the entire 100,000 acres of parkland in Delaware, and forest land, is sensitive?" Valihura asked.
"That's correct," Durstein said. "And the reason for that is it's very difficult to draw lines in areas where the public is likely to gather."
Valihura, who noted that the federal government allows guns in national parks, seemed unpersuaded by Durstein's logic.
"Why isn't Rodney Square a sensitive area?" she asked, referring to a small central plaza that is a popular gathering area in downtown Wilmington, a city racked by gun violence.
Valihura also pressed Durstein about an individual's right to carry a gun for self-defense, which he argued is less acute in a park tent or cabin than in a person's home. Durstein said the trade-off for banning guns is a commitment by the state to provide law enforcement in state parks.
"Your own regs state that camping is at your own risk, state forests are a public use area and there are no after-hours, nighttime or weekend security," Valihura noted.
With no evidentiary record to draw on, Justice James Vaughn also wondered about the protection being afforded park visitors.
"We have no idea how much police security is actually provided in these state parks, do we?" Vaughn asked. "I've been in them. Occasionally you'll see a ranger go by, something like that, but I don't seen any police presence in there."