Gun advocates file appeal in Supreme Court

A lawsuit questioning the constitutionality of a gun ban in Delaware's state parks has been shot down by a Sussex County Superior Court judge.

But the gun advocates challenging the ban aren't giving up. An appeal was filed in Delaware Supreme Court Jan. 9, said attorney Francis Pileggi of Wilmington-based law firm Eckert, Seamans, Cherin and Mellott.

The lawsuit, filed by the Bridgeville Rifle & Pistol Club, the Delaware State Sportsmen's Association and several individuals affiliated with those organizations, argues state regulations banning firearms in state parks and forests violate the Delaware Constitution and the right to bear arms.

“The state constitution gives people the right to do something – that's the starting point and everything else is related to that,” Pileggi said of the suit.

In late December 2016, Sussex County Superior Court Judge T. Henley Graves ruled state regulations prohibiting firearms – as well as BB guns, slingshots and archery equipment – in state parks and forests do not violate the Delaware Constitution or contradict any state laws. Some weapons are permitted in designated areas during hunting seasons; the ban prohibits firearms, concealed or not, for nonhunting purposes.

“I find that the agency defendants have an important governmental objective of keeping the public safe from the potential harm of firearms in state parks and forests,” Graves wrote in his 14-page opinion, concluding that the inability to carry deadly weapons in parks or forests causes no unreasonable burden on the plaintiffs.

“The agency defendants were not unreasonable in concluding that permitting unregulated firearms in state parks and state forests would heighten the potential of injury or death to the visitors ...” Graves wrote. “Their right to bear arms to protect themselves if the need for self-defense arises is not hindered but, rather, aided in effect by the presence of the regulations.”

Ellendale resident Jeff Hague, treasurer of the Bridgeville Rifle and Pistol Club and vice president of the Delaware State Sportsmen's Association, disagrees.

“In essence, you're creating a gun-free zone, and if criminals are aware of that, they have free rein,” Hague said. “We're firm believers that good guys with guns stop the bad guys.”

The suit, originally filed in Chancery Court in December 2015, names the state Department of Natural Resources and Environmental Control, Delaware Department of Agriculture and cabinet secretaries David Small and Ed Kee as the defendants in the case. DNREC has jurisdiction over state parks, while the Department of Agriculture maintains state forests.

In June 2016, the Court of Chancery denied the plaintiffs' request to remove the gun ban and granted the defendants' motion to dismiss the case. Less than a week later, the case was refiled in Superior Court.

Small applauded Graves' decision to deny the plaintiffs' argument that the gun ban is unconstitutional.

“We have maintained that there is a legitimate use for firearms in appropriate locations in Delaware State Parks during DNREC-designated special hunts or established hunting seasons, and believe that reasonable restrictions on firearms not used for hunting did not run afoul of the Delaware Constitution,” Small said in a statement. “We do not believe that the unrestricted ability to carry weapons is consistent with our mission to provide every visitor with safe, enjoyable recreational experiences in our treasured and nationally renowned state park system.”

Hague said the ban dates back to the 1970s, but the decision to challenge those regulations recently arose after club members, both in-state and out-of-state, couldn't carry concealed weapons – or keep weapons in their vehicles – while camping or surf fishing at state parks, such as Trap Pond and Delaware Seashore state parks.

“We felt it's time for the departments to change the regulations because they're discriminatory and, in our opinion, go against our right to self-defense,” Hague said. “You can carry in restaurants, or on the Boardwalk in Rehoboth. What's the difference between the Boardwalk and the back roads of a state forest?”

Violating the gun ban could result in a fine of $25 to $250 for a first offense, and up to a $500 fine for subsequent offenses, the regulations state.

Pileggi said a decision on the appeal could take a year or longer.