Lawsuit filed against pending handgun permit law

Delaware’s handgun permit law, slated to go into effect Sunday, Nov. 16, now faces a court challenge on its constitutionality, with plaintiffs asking for both permanent and preliminary injunctions.

The complaint filed Nov. 3 in Delaware District Court questions the Delaware law passed last session and signed by Gov. Matt Meyer, calling the law requiring a permit to purchase a handgun a permitting scheme that violates the Second Amendment, Fourth Amendment and 14th Amendment.

“The firearms at issue in this case, handguns, unquestionably fall within the scope of the Second Amendment, as the Supreme Court in [District of Columbia v.] Heller held that handguns are the most popular weapon chosen by Americans for self-defense,” reads the complaint against Delaware Department of Safety and Homeland Security Secretary Joshua Bushweller and Delaware State Police Superintendent Col. William Crotty, both in their official capacities.

Particularly, the new cost to obtain a handgun permit puts undue burden on purchasers who have limited economic means, states the complaint filed by attorney Thomas Neuberger, Jerry L. Martin, William R. Hague Jr., Bruce C. Smith, BKK Firearms, Delaware State Sportsmen’s Association and Bridgeville Rifle & Pistol Club.

Applicants must attend a certified firearms training course with 11 different parts – one part more than the course required to obtain a concealed carry deadly weapon permit in Delaware, the new law states. Another requirement is to fire at least 100 rounds of ammunition. 

“The individual must also submit to fingerprinting and undergo a state and national background check. All of this at the applicant’s expense,” the reads the complaint. “And [the law’s] qualified purchaser permit is only valid for a period of two years from the date of issuance, creating a perpetual cycle of costs, delays and other roadblocks in maintaining the ability to purchase a handgun.”

A voucher has also been removed, placing hardship on those with limited financial means, the lawsuit states.

In addition to the added cost of getting a handgun permit, the complaint states the permitting process is burdensome, vague and arbitrary.

As of Oct. 31, the complaint states, the permit-to-purchase website did not have an active application link, while a link to permit-to-purchase regulations was listed as to be developed.

Furthermore, the complaint states, one approved firearms trainer reported Oct. 28 that he cannot offer a mandatory handgun training course until Saturday, Nov. 22, six days after the effective date, and an Oct. 6 email from Delaware State Police to federal firearms licensees said the necessary infrastructure to implement the new law was not in place. The DSP email went on to say the Firearm Transaction Approval Program had been delayed due to critical errors that needed to be addressed, they wanted to make sure it’s thoroughly tested for accuracy, which will last a few weeks, and the program will not be released until officials were 100% confident in its accuracy.

“This resulting inability of plaintiffs to obtain the required permit – when a permit to purchase a handgun remains a necessity – amounts to an unconstitutional handgun ban,” the complaint reads.

The power given to the unelected director of the State Bureau of Identification to revoke a permit, and the potential ability to confiscate all firearms in a home is another concern outlined in the lawsuit.

Under the handgun permit law, the director alone can revoke or deny a permit if they determine someone poses a danger to themselves or others. This results in the search and seizure of lawfully owned common arms outside the judicial process, without any pre-compliance review before a neutral judicial decision-maker, and allows a warrantless removal of firearms from a home based upon a subjective and nebulous standard, the complaint states.

“The unbridled discretion that [the law’s] impermissibly vague standards vest in the director impermissibly delegates policy matters to the director, and undoubtedly invites arbitrary and discriminatory application,” the lawsuit reads. “This vagueness also has a chilling effect on plaintiffs' constitutionally protected conduct … whether with or without a permit, plaintiffs are targets of the state’s warrantless and unlawful search and seizure.”

Plaintiffs are asking for declaratory judgment that the law is a violation of the plaintiffs’ fundamental right to keep and bear arms, including purchasing handguns for any lawful purpose without a state-issued permit or license. They also ask for both preliminary and permanent injunctive relief to enjoin defendants from implementing and enforcing the law, and for attorney fees.