State Right to Bear Arms in Delaware

Posted on Monday, August 31st, 2015

Article I, § 20 of the Delaware Constitution, enacted in 1987, 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.”

In a 1991 case, Short v. State, the Delaware Supreme Court rejected defendant’s article I, § 20 challenge to Del. Code Ann. tit. 11, § 1448, which prohibits the possession of a deadly weapon by a convicted felon.1  The court noted that “[c]ourts throughout the country…have uniformly ruled that the right to bear arms as guaranteed in various state constitutions…may be subject to reasonable restrictions for the public safety, including limitations on possession by persons with criminal records.”2

More recently, in Doe v. Wilmington Hous. Auth., the Delaware Supreme Court specifically endorsed intermediate scrutiny as the appropriate level of review for challenges brought under article I, § 20.3  In ruling that a public housing authority could not prohibit the display or carry of firearms in common areas, or require residents to produce their permit or license upon request, the court found that “[a]lthough the right to bear arms under the Delaware Declaration of Rights is a fundamental right, we have already held that it is not absolute…[t]he General Assembly’s careful and nuanced approach [with respect to the right to bear arms] supports an intermediate scrutiny analysis that allows a court to consider public safety and other important governmental interests.4  Applying intermediate scrutiny, the court found the WHA’s policies to be so overbroad as to “functionally disallow[] armed self-defense in areas that [r]esidents, their families, and guests may occupy as part of their living space.”5  As a result, the court concluded that these policies impermissibly infringed on “the fundamental right of responsible, law-abiding citizens to keep and bear arms for…defense.”6

With respect to the public carrying of firearms, in Smith v. State, the Delaware Supreme Court rejected an article I, § 20 challenge to Del. Code Ann. tit. 11, § 1441, which requires a permit for the carrying of a concealed weapon.7  The court rejected defendant’s argument that article I, § 20 entitles a person to conceal the weapon that he or she carries, noting that “[the] provision contains no language that entitles a person to conceal the weapon he carries. Rather, any such entitlement involves only a privilege to carry a concealed weapon–a privilege that is regulated by statute.”8

Finally, in Griffin v. State, the Delaware Supreme Court adopted a balancing test for the specific context of as-applied challenges to the state’s concealed carry statute.9  Under this three part test, adopted from the Wisconsin Supreme Court opinion in State v. Hamden,10 “[f]irst, the court must compare the strength of the state’s interest in public safety with the individual’s interest in carrying a concealed weapon.  Second, if the individual interest outweighs the state interest, the court must determine, ‘whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute.’  Third, the individual must be carrying the concealed weapon for a lawful purpose.”11  In elaborating on this test, the court noted that while the individual interest in carrying a concealed weapon was strongest in one’s home, that interest shifts in favor of the State once public safety is implicated (here, because the police were present and asking about a concealed weapon in response to a report of a domestic dispute).12  The court remanded the case for further factual findings to determine whether the defendant was lying about the location of a concealed knife.

 

  1. Short v. State, 586 A.2d 1203 (Del. 1991). []
  2. Id. at *2. See also Green v. Green, 702 A.2d 926 (Del. 1997) (rejecting defendant’s argument that a protective order limiting contact with his ex-wife and prohibiting the possession of a firearm for the duration of the order violated his “right to bear arms;” the opinion did not refer directly to article I, § 20). []
  3. 88 A.3d 654, 667-69 (Del. 2014). []
  4. Id. at 667. []
  5. Id. at 668-69. []
  6. Id. at 667. []
  7. Smith v. State, 882 A.2d 762 (Del. 2005). []
  8. Id. at * 8 (emphasis in original). See also Application of Wolstenholme, No. 92M-04-006, 1992 Del. Super. LEXIS 341, *6 (Del. Super. Ct. Aug. 20, 1992) (holding that the “right to bear arms…does not include a right to carry a concealed deadly weapon”). []
  9. Griffin v. State, 47 A.3d 487 (Del. 2011). []
  10. 264 Wis. 2d 433 (2003). []
  11. Griffin, 47 A.3d at 490. []
  12. Id. at 491. []

Background Checks in Washington

Posted on Monday, August 31st, 2015

See our Background Checks policy summary for a comprehensive discussion of this issue.

Federal law requires federally licensed firearms dealers (but not private sellers) to initiate a background check on the purchaser prior to sale of a firearm. Federal law provides states with the option of serving as a state “point of contact” and conducting their own background checks using state, as well as federal, records and databases, or having the checks performed by the FBI using only the federal National Instant Criminal Background Check System (“NICS”) database. (Note that state files are not always included in the federal database.)

Washington is a partial point of contact state for the NICS.1 In Washington, local law enforcement departments serve as state points of contact for implementation of the Brady Act for all dealer deliveries of handguns. Transfers of rifles and shotguns by licensed dealers are processed through the FBI.2

Licensed dealers must conduct background checks on prospective purchasers each time a dealer transfers a firearm.3 Washington requires firearms dealers to use NICS, the Washington State Patrol electronic database, the Department of Social and Health Services’ electronic database, and other agencies or resources as appropriate when processing firearm transactions.4

In 2014, Washington became the first state in the nation to pass a universal background checks law by voter initiative.5 The law requires all private sales of firearms to be conducted through a federally licensed firearms dealer who will conduct a background check on the private buyer. Washington also requires law enforcement to run a background check before returning a confiscated firearm.6

See the Washington Private Sales section and our Private Sales policy summary. See also the Retention of Sales / Background Check Records in Washington section.

Brady Exemption

Concealed pistol license holders whose licenses were issued on or after July 22, 2011, qualify as exempt from future background checks when purchasing a firearm, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) chart that outlines those permits that qualify as alternatives to the federal Brady Act. Please note that ATF’s exempt status determination for a given state is subject to change without notice.

Under federal law, persons who have been issued state permits to purchase or possess firearms are exempt from background checks if those permits were issued: 1) within the previous five years in the state in which the transfer is to take place; and 2) after an authorized government official has conducted a background investigation, including a search of the NICS database, to verify that possession of a firearm would not be unlawful.7

 

  1. Federal Bureau of Investigation, National Instant Criminal Background Check System Participation Map, at http://www.fbi.gov/about-us/cjis/nics/general-information/participation-map (last visited Aug. 31, 2015). []
  2. Id. []
  3. Wash. Rev. Code Ann. § 9.41.090(2)(b). []
  4. Wash. Rev. Code Ann. § 9.41.090(2)(b). []
  5. Wash. Rev. Code Ann. § 9.41.010 []
  6. 2015 WA S.B. 5381, Sect. 2(1). []
  7. 18 U.S.C. § 922(t)(3), 27 C.F.R. § 478.102(d). []

Disarming Prohibited Persons in Washington

Posted on Monday, August 31st, 2015

In Washington, state superior courts and courts of limited jurisdiction may order forfeiture of a firearm proven to be:

  • Found concealed on a person not authorized to carry a concealed pistol;
  • Commercially sold to any person without an application as required by state law;
  • In the possession of a person prohibited from possessing the firearm under state law;
  • In the possession or under the control of a person at the time he or she committed or was arrested for committing a felony or committing a nonfelony crime in which a firearm was used or displayed;
  • In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or intoxicating liquor;
  • In the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a felony or for a nonfelony crime in which a firearm was used or displayed;
  • In the possession of a person found to have been mentally incompetent while possessing the gun when apprehended or who is thereafter committed under state law;
  • Used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or
  • Used in the commission of a felony or of a nonfelony crime in which a firearm was used or displayed.1

Law enforcement officers of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under any of the circumstances specified above.2

Any confiscated firearm may be surrendered only: 1) to the prosecuting attorney for use in subsequent legal proceedings; 2) for disposition according to an order of a court having jurisdiction; or 3) to the owner if the proceedings are dismissed or the court otherwise directs.

In 2015, Washington enacted a law requiring that a law enforcement agency must, before returning a confiscated firearm:

(a) Confirm that the individual to whom the firearm will be returned is the individual from whom the firearm was obtained or an authorized representative of that person;

(b) Confirm that the individual to whom the firearm will be returned is eligible to possess a firearm;

(c) Ensure that the firearm is not otherwise required to be held in custody or otherwise prohibited from being released; and

(d) Ensure that twenty-four hours have elapsed from the time the firearm was obtained by law enforcement.3

This law also provides that a family or household member may request to be notified when a law enforcement agency returns a privately owned firearm to the individual from whom it was obtained or to an authorized representative of that person.4 This notification may be made via telephone, email, text message, or another method that allows notification to be provided without unnecessary delay.5 If a family or household member has requested to be notified, a law enforcement agency must:

(a) Provide notice to the family or household member within one business day of verifying that the individual from whom the firearm was obtained is eligible to possess and receive the firearm; and

(b) Hold the firearm in custody for seventy-two hours from the time notification has been provided.6

Once these requirements have been met, the law enforcement agency must release the firearm to the individual from whom it was obtained or an authorized representative of that person upon request without unnecessary delay.7

For laws governing the procedure for surrender of firearms by a person subject to a protective order, see the section entitled Domestic Violence and Firearms in Washington. See also the Mental Health Reporting in Washington section for additional court notices restricting the possession of a firearm.

 

  1. Wash. Rev. Code Ann. § 9.41.098(1). []
  2. Wash. Rev. Code Ann. § 9.41.098(4). []
  3. 2015 Wa. SB 5381, Sect. 2(1). []
  4. 2015 Wa. SB 5381, Sect. 1. []
  5. Id. []
  6. 2015 Wa. SB 5381, Sect. 2(3). []
  7. 2015 Wa. SB 5381, Sect. 2(2). []

Domestic Violence & Firearms in Washington

Posted on Monday, August 31st, 2015

Washington has no law authorizing or requiring the removal of firearms or ammunition at the scene of a domestic violence incident.

Firearm Prohibitions for Domestic Violence Misdemeanants in Washington

Washington prohibits possession of a firearm by anyone who has been convicted or found not guilty by reason of insanity of any of the following crimes when committed by one family or household member against another on or after July 1, 1993:

  • Assault in the fourth degree;
  • Coercion;
  • Stalking;
  • Reckless endangerment;
  • Criminal trespass in the first degree; or
  • Violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence.1

Washington defines “family or household members” as:

  • Spouses, former spouses;
  • Persons who have a child in common regardless of whether they have been married or have lived together at any time;
  • Adult persons related by blood or marriage;
  • Adult persons who are presently residing together or who have resided together in the past;
  • Persons age 16 or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship;
  • Persons age 16 or older with whom a person age 16 or older has or has had a dating relationship; and
  • Persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.2

Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders and Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued

Washington enacted a law in 2014 that mirrors federal law by prohibiting gun possession by anyone subject to a protective order.3 The protective order must have been  issued after a noticed hearing and it must restrain the person from harassing, stalking or threatening an intimate partner (or child of the partner or restrained person) and the person must represent a credible threat to the safety of the intimate partner or child.4 An “intimate partner” is defined in Washington as a current or former spouse or domestic partner; a person with whom the restrained person has a child; or a current or former dating partner with whom the restrained person lives or has lived.5

The 2014 law also requires the court issuing the protective order to prohibit the restrained individual from purchasing or possessing firearms or a concealed carry license and require the restrained person to surrender any firearms or concealed carry licenses in his or her possession.6 The individual must file a proof of surrender with the court.7

An older provision of Washington law provides that, if a protective or restraining order states that the possession of a firearm or other dangerous weapon by any party presents a serious and imminent threat to public health or safety or the health or safety of any individual, the court may:

  • Require the party to surrender any firearm or other dangerous weapon;
  • Require the party to surrender any concealed pistol license issued by the State of Washington;
  • Prohibit the party from obtaining or possessing a firearm or other dangerous weapon;
  • Prohibit the party from obtaining or possessing a concealed pistol license.8

The court may also make such an order if it finds by a preponderance of the evidence that the party used, displayed, or threatened to use a firearm or other dangerous weapon in a felony or committed any offense that renders him or her ineligible to possess a firearm.9 If the court makes this finding upon a showing by clear and convincing evidence, then it is required to make such an order.10

The court may order the temporary surrender of a firearm or other dangerous weapon without notice to the other party if it finds that irreparable injury could result if an order is not issued until the time for a response has elapsed.11 These requirements may be for a period of time less than the duration of the order.12 The court may require the party to surrender any firearm or dangerous weapon in his or her immediate possession or control or subject to his or her immediate possession or control to local law enforcement, his or her counsel, or to any person designated by the court.13 These provisions apply to:14

Domestic violence protective orders are available to family and household members as defined above, plus domestic partners and former domestic partners.15

For general information on the background check process and categories of prohibited purchasers/possessors, see the Washington Background Checks and Washington Prohibited Purchasers Generally sections.

See our Domestic Violence and Firearms policy summary for a comprehensive discussion of this issue.

  1. Wash. Rev. Code Ann. § 9.41.040(2)(a)(i). []
  2. See Wash. Rev. Code Ann. §§ 9.41.010(5) and 10.99.020(3). []
  3. Wash. Rev. Code Ann. § 9.41.040(2)(a). []
  4. Id. []
  5. Wash. Rev. Code Ann. § 9.41.800. []
  6. Id. []
  7. Wash. Rev. Code Ann. § 9.41.804. []
  8. Wash. Rev. Code Ann. § 9.41.800(5). []
  9. Wash. Rev. Code Ann. § 9.41.800(2). []
  10. Wash. Rev. Code Ann. § 9.41.800(1). []
  11. Wash. Rev. Code Ann. § 9.41.800(4). []
  12. Wash. Rev. Code Ann. § 9.41.800(6). []
  13. Wash. Rev. Code Ann. § 9.41.800(7). []
  14. Wash. Rev. Code Ann. § 9.41.800(1). []
  15. Wash. Rev. Code Ann. §§ 26.50.010(1), (2), 26.50.060. []

Locking Devices in Delaware

Posted on Monday, August 31st, 2015

Delaware prohibits a parent, guardian or other person legally charged with the care or custody of a child less than 18 years old from knowingly, intentionally or with criminal negligence contributing to or failing to prevent the unlawful possession or purchase of a firearm by a juvenile.1 A defendant may raise as an “absolute” defense to charges for violation of this provision that he or she: 1) had a lock on the trigger of the firearm and did not tell or show the juvenile where the key to the trigger lock was kept; or 2) locked the firearm in a key or combination locked container and did not tell or show the juvenile where the key was kept or what the combination was.2

Delaware does not require a locking device to accompany the sale of a firearm, although federal law applies, and no state statutes require firearm owners to affirmatively lock their weapons.

See our Locking Devices policy summary for a comprehensive discussion of this issue.

  1. Del. Code Ann. tit. 11, § 603. A juvenile is a person less than 18 years of age. Del. Code Ann. Del. Code Ann. tit. 1, § 701. []
  2. Del. Code Ann. tit. 11, § 603. []

Trafficking in Delaware

Posted on Monday, August 31st, 2015

Delaware prohibits any person from purchasing or obtaining a firearm on behalf of a person not qualified to legally purchase, own or possess a gun, or for the purpose of selling, giving or otherwise transferring a firearm to a person not legally qualified to purchase, own or possess a firearm.1

Delaware imposes a felony upon any person who, in connection with the purchase, transfer, or attempted purchase or transfer of a firearm, willfully and intentionally makes any materially false oral or written statement, or willfully and intentionally furnishes or exhibits any false identification intended or likely to deceive the dealer.2

Finally, Delaware provides that a licensed firearms dealer may not sell, transfer, or deliver any firearm to another person (without a dealer’s license) until the dealer has conducted a background check in accordance with federal law.3

See our Firearms Trafficking policy summary for a comprehensive discussion of this issue.

  1. Del. Code Ann. tit. 11, § 1455. []
  2. Del. Code Ann. tit. 11, § 1448A(f). []
  3. Del. Code Ann. tit. 11, §1448A(a), (g). []

Reporting Lost or Stolen Firearms in West Virginia

Posted on Monday, August 31st, 2015

West Virginia does not require firearms owners to report the loss or theft of a firearm.

See our Reporting Lost or Stolen Firearms policy summary for a comprehensive discussion of this issue.

Registration of Firearms in West Virginia

Posted on Monday, August 31st, 2015

West Virginia has no law requiring gun owners or possessors to register their firearms.

See our Registration of Firearms policy summary for a comprehensive discussion of this issue.

Licensing of Gun Owners & Purchasers in West Virginia

Posted on Monday, August 31st, 2015

West Virginia has no law requiring gun owners or purchasers to obtain a license.

See our Licensing of Gun Owners or Purchasers policy summary for a comprehensive discussion of this issue.

Waiting Periods in Delaware

Posted on Monday, August 31st, 2015

Delaware has no law imposing a waiting period prior to purchase of a firearm.

See our Waiting Periods policy summary for a comprehensive discussion of this issue.