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Case against Wilmington Housing Authority Moves to State Supreme Court

Friday, January 17, 2014

Last August, there was an encouraging development in NRA’s lengthy battle to ensure the rights of those living in public housing under the jurisdiction of the Wilmington Housing Authority (WHA). Rather than endorse a July 27, 2012, ruling by U.S. District Court for the District of Delaware Judge Leonard P. Stark, which upheld the housing authority’s gun policy, the U.S. Court of Appeals for the Third Circuit remanded the case to the Delaware Supreme Court, where Judge Stark’s finding could be reversed. Since the Third Circuit’s ruling moving the case to the Delaware Supreme Court, NRA and others have filed briefs outlining the illegality of the WHA’s actions.

The case, Doe v. Wilmington Housing Authority, originated in 2010, when a complaint challenging WHA’s complete ban on firearm possession on WHA-managed premises was filed on behalf of two WHA residents with the Delaware Court of Chancery. The case was later removed to the U.S. District Court for the District of Delaware. Under the ban, those Wilmington residents who found it necessary to take advantage of public housing options were denied their right to bear arms, even in their own units. Prompted by the U.S. Supreme Court’s ruling in McDonald v. Chicago, WHA eventually replaced the total firearm ban with oppressive regulations governing firearm possession in “common areas” such as the hallways outside a public housing resident’s apartment. Both bans implicate rights protected by the Second Amendment and the Delaware State Constitution and are characteristic of an anti-gun movement that has long targeted the economically disadvantaged through excessive taxation, expensive licensing schemes, and bans on affordable firearms.

Counsel for the plaintiffs attacked the ban on several fronts in arguments to the U.S. District Court for the District of Delaware. The plaintiffs’ attorneys contended that the common area ban violated their client’s right to keep and bear arms as protected by the Second Amendment and Section 20 of the Delaware State Constitution, which 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.” Further, they contended that Delaware’s firearms preemption law did not allow for WHA to impose such a regulation, and that in doing so WHA has exceeded its authority.

In ruling against the plaintiffs, Judge Stark claimed that the “Common Area Provision regulates conduct that is not within the ‘core’ of what is protected by the Second Amendment,” and rejected the plaintiffs’ contention that a strict scrutiny test must be applied to the WHA regulation, opting instead for an application of intermediate scrutiny, which Stark found the regulation passes. Stark then endorsed similar reasoning for rejecting the plaintiffs’ argument invoking the protection of the Delaware State Constitution. Stark also determined that while Delaware state law explicitly bars municipalities and counties from passing their own firearms laws, it neglects to explicitly include state agencies such as the WHA. Following Stark’s disappointing ruling, the case was appealed to the Third Circuit, and then sent by that court to the Delaware Supreme Court, where it now resides. 

On September 20, 2013, NRA filed a friend of the court brief with the Delaware Supreme Court in support of the plaintiffs. Early on, the brief cites McDonald to illustrate the perversity of the WHA ban, noting that the Supreme Court found that the Second Amendment right “is especially important for women and members of other groups that may be especially vulnerable to violent crime.” The brief then points out that a 2000 study by the U.S. Department of Housing and Urban Development found that public housing residents are at particular risk of violence perpetrated with guns, thus their right to keep and bear arms is of particular importance.

The brief goes on to make the case that Section 20 of the state constitution protects the right to “’bear” arms outside the home where they are ‘kept’,” citing the difference in the terms “keep” and “bear” as recognized by the U.S. Seventh Circuit Court of Appeals. Later, the brief notes, “Heller and McDonald make clear that the core of the right to bear arms consists of a purpose not a place: lawful self-defense,” and as such, the constitutional right to arms protects a WHA resident’s rights beyond the person’s individual unit. Further, the brief makes the case that Section 20’s protections are even broader than the Second Amendment.

Another friend of the court brief in support of the plaintiffs was filed on behalf of a bipartisan coalition of 16 members of the Delaware State Assembly. This brief argues for an expansive interpretation of Section 20, citing the legislative history surrounding the section’s enactment. The brief provides the court with the historical backdrop under which the Section 20 was added to the state constitution in 1987, noting that “even critics of Section 20 read it as providing stronger protection against restrictive firearms regulation than the then-prevalent view [of the right to keep and bear arms] in the federal courts.” 

Later on, the General Assembly brief explains that Delaware’s legislative body never intended for the WHA to have the power to regulate firearms. It states, “The Wilmington Housing Authority is a creature of the General Assembly, which has given the WHA only limited powers. Nothing in the provisions of law establishing the WHA gave it any power to regulate firearm ownership.” The brief then goes on to cite examples of the specific enumerated powers given to the WHA. The brief also includes a discussion of the legislative history of Delaware’s firearm preemption law and why it precludes WHA’s enactment of firearm regulations.

With this lengthy litigation now before the Delaware Supreme Court, it is possible that relief is in sight for Wilmington’s public housing residents. NRA will keep members updated with the latest on this important case and continue working to ensure respect for the right to keep and bear arms of all law-abiding members of society, regardless of socio-economic stature.

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