WILMINGTON, Del. — The war on the Second Amendment often involves manipulating language, with blue states passing gun control laws that turn on ideas and phrasing designed to incite public fear. This week, a United States district court overturned significant portions of Delaware’s ban on so-called “ghost guns,” affirming America’s tradition of homemade firearms.
At the simplest level, legislators don’t like the fact that technology has made the centuries-old tradition of homemade firearms more accessible, through 3D printing and parts kits that allow the construction of unserialized firearms. “The constitutional understanding of ‘Arms’ does not turn on serialization,” affirmed the district court in its 29-page decision issued on September 10.
Rigby v. Jennings is a Second Amendment challenge to Delaware H.B. 125, passed in 2021, which criminalized possession, manufacture/assembly, and distribution of unserialized firearms and unfinished frames/receivers and 3-D-printer CAD files. The complaint was filed in the United States District Court for the District of Delaware, on October 27, 2021, against Attorney General Kathy Jennings and Governor John Carney.
After the 2022 Bruen decision, the court ordered parties to submit supplementary briefs and eventually issued a partial preliminary injunction enjoining the possession and manufacturing and assembly ban. The plaintiffs in the case include two private citizens and Firearms Policy Coalition.
Judge Noreika noted a mixed outcome, writing, “some of Delaware’s proposed measures are constitutional, others are not.” Her opinion acknowledges the Third Circuit’s February opinion in Defense Distributed v. Attorney General of New Jersey, a case also addressing computer code related to manufacturing guns.
Additionally, she recognized decisions in Rahimi, Hemani, Wolford, and another New Jersey case heard by the Third Circuit, ANJRPC v. Attorney General, tackling the subject of so-called assault weapons bans.
Judge Noreika rejected the First Amendment challenges (similarly to the Third Circuit), but properly applied the two-step Bruen test and found that the Second Amendment challenges did survive.
She affirms the obvious conclusion that “An untraceable firearm is an Arm under the Second Amendment. It is, after all, a firearm, and even under the narrowest reading of “Arms,” “all firearms constitute ‘arms,'” whether serialized or not.”
For most of our country’s history, firearms did not possess serial numbers as an imposition of law, and those that did were the result of decisions by manufacturers. Either way, they are protected arms:
And just as “[t]he text of the Second Amendment covers all magazines, not just magazines that New Jersey considers ‘standard capacity,'” the text of the Second Amendment covers all firearm frames and receivers, not just ones with a manufacturer’s label or serial number.
Judge Noreika finds the possession ban “presumptively unconstitutional.” She decided the distribution ban is “presumptively lawful” in that it “does not prohibit keeping or bearing firearms.”
The judge called the manufacturing and assembly ban “…perhaps the most difficult aspect of the challenged laws,” but ultimately concluded that “it fails at Bruen’s first step.” As to why, she notes the ban “places restrictions on possessing firearms because it prevents law-abiding citizens from acquiring their self-defense firearm of choice.”
Applying step two of Bruen, Judge Noreika writes, “none of the historical regulations Delaware points to are relevantly similar in how and why they were enacted when compared against the laws challenged here. Delaware has not carried its burden at Bruen step two.”
The court ultimately granted the motion for summary judgment, in part, concluding that the Possession and Manufacturing and Assembly Bans are facially unconstitutional and unconstitutional as applied to the plaintiffs.
Judge Noreika makes a significant point that even the most ardent gun control groups would be wise to consider:
Indeed, at some level, firearms have always been weapons connected with violent crime and criminality, yet nobody seriously thinks an outright ban on firearms would pass constitutional muster.
