Delaware joins permit-to-purchase states, faces legal challenge

Gun Rights

While Delaware became the 11th state to enact a permit-to-purchase law by a stroke of Gov. John Carney’s pen Thursday, a legal challenge by gun owners will determine whether it will last.

Flanked by Democratic legislators and gun control advocates at a Legislative Hall signing of Senate Bill 2, Carney said the bill that requires a handgun purchaser to complete a safety training and undergo a background check before taking ownership of a weapon could make real progress in making communities safer statewide.

“Good things happen to those who wait, I know this has been a while coming,” he said of the bill that has been worked in the legislature for six years. “It’s beyond my comprehension that somebody can pick up a gun and shoot somebody with it, but it happens – often times for no real apparent reason. And it’s sad. But if we prevent him from picking up the gun in the first place, we’ve got a chance.”

Less than 24 hours after the governor’s approval though, the state affiliate for the National Rifle Association filed a federal lawsuit seeking to prevent the law from taking effect.

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“This legislation is a politically-motivated, ill-advised and unrealistic attempt to address the rising violent crime in Delaware,” the Delaware State Sportsmen’s Association wrote in a statement. “[We] don’t believe in any way that legislation such as this will impact criminal behavior. It will only deprive those law-abiding citizens and law enforcement of the right to defend and protect themselves.”

What’s in the bill

SB 2 will require purchasers of handguns in the state to apply for a permit before they can obtain a weapon. To obtain a permit, an applicant must complete a firearm safety course and live fire training identical to those required for concealed carry permits, be fingerprinted and submit to a background check.

Delaware State Police’s State Bureau of Identification will be required to review applications within 30 days. If approved, permits are good for two years from issuance. If denied, applicants can appeal the decision to a Justice of the Peace Court.

Active or retired law enforcement officers, as well as holders of concealed carry permits, would not be required to obtain a permit.

State police are required to begin the process of writing the regulations, building the technical framework and hiring necessary staff to complete the reviews, with a starting date no later than 18 months from signing.

Why do advocates want it?

States with permit-to-purchase laws have seen homicide rates drop 25%, suicide rates using firearms drop 50% and gun trafficking reduce by 75%, according to studies compiled by the Johns Hopkins Center for Gun Violence Solutions.

Without such laws, prospective firearm purchasers would still be subject to the federal maximum three-day waiting period, but can take ownership of a gun after that point even if his or her background check was not complete.

Delaware Attorney General Kathy Jennings, who has supported a package of gun control reforms in recent years including an assault weapon ban and red flag law, said that a large percentage of guns used in crimes in Delaware have originated in the state – an uncommon occurrence nationwide – which shows straw purchases, or guns bought by an eligible person who sells or gives them to an ineligible person, are a significant problem here.

“By cutting down on straw purchases, we’re going to eliminate a lot of problems in the state,” she said.

A coalition of gun safety organizations, including Moms Demand Action, Everytown for Gun Safety, United Against Gun Violence, March for Our Lives, and many more worked for more than six years to secure the necessary votes for passage of a permit-to-purchase law.

“We can have the safest state if we commit to it and we build this right,” said Traci Manza Murphy, the executive director of the Delaware Coalition Against Gun Violence.

Delaware joins neighboring states Maryland and New Jersey with permit-to-purchase laws along with New York, Connecticut and Washington, D.C.

Is it constitutional?

The DSSA argued that SB 2 is “unquestionably unconstitutional under both Delaware’s Constitution and the federal Second Amendment,” because a “right delayed is a right denied.”

The gun rights advocates have also argued that the bill’s removal of a provision to provide income-based vouchers for the training “discriminates against economically disadvantaged Delawareans.” The requirement to obtain a permit before purchasing a gun also hearkens to the “ugly racist history of gun-control laws,” according to the DSSA lawsuit, referring to 19th century laws that required Black gun owners to pay a fee.

The suit, filed in the U.S. District Court of Delaware, relies upon relatively new conditions on gun control established under the 2022 Supreme Court decision NYSRPA v. Bruen, which said that “historical tradition” on gun control should be considered in deciding regulation.

A panel of the Fourth Circuit Court of Appeals recently agreed with that argument when hearing a challenge to a very similar permit-to-purchase law in Maryland, and the full circuit court has agreed to hear the case now.

Attorney General Jennings emphasized that Delaware, as a member of the Third Circuit, is unaffected by anything the Fourth Circuit may rule. Only a subsequent Supreme Court ruling could affect Delaware outside of the Third Circuit.

With a sufficiently broad requirement of requiring all handgun purchasers to obtain a permit, her office argues SB 2 is not prejudicial.

“Everybody has to go through this process and if you are not otherwise prohibited, because of a felony, then you absolutely have a right to possess that gun. We just want you to possess it safely,” she said. “We will have, and already have had, challenges to every gun safety law passed by this General Assembly and signed by the governor. I welcome those challenges. We have not lost one yet.”

What’s next?

While advocates are celebrating the passage of the latest piece of gun control legislation, they don’t plan to rest on their accomplishments long.

Murphy, of the Delaware Coalition Against Gun Violence, said they would gear up to pursue a bill next year that would create a database for purchased firearms.

“If you look at the most impactful permit bills, they also have some sort of component of a database,” she said, noting that access to that information could be limited to law enforcement. “We have to do a better job of tracing guns and we can’t do that without records.”

Such a proposal is widely controversial with gun owners, and SB 2 actually includes a clause that expressly prohibits the establishment of a system to track guns, gun owners or gun sales. Passage of such a bill in a future General Assembly could prove to be an uphill fight and would surely spark another lawsuit.

In the meantime, Murphy said that she expects a wave of new gun sales prior to the start of the permit-to-purchase system – a common ramification to new gun control laws.

“In the next 18 months, we will sell more handguns in our state than we really want to because there are people who know that they can’t get a permit,” she said.

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