Appeals court weighs Del. laws banning certain semiautomatic guns, large-capacity magazines

Lawyers for gun rights groups urged a federal appeals court on Monday to overturn a judge’s refusal to halt enforcement of Delaware laws banning certain semiautomatic firearms and restricting the size of firearm magazines.

Delaware’s Democrat-controlled General Assembly enacted laws in 2022 that ban the sale of several types of semiautomatic firearms and shotguns, and limit magazine capacity to 17 rounds.

U.S. District Court Judge Richard Andrews denied a request by opponents for a preliminary injunction halting enforcement of the laws until a court decides whether they are unconstitutional. The Delaware State Sportsmen’s Association, joined by other gun rights advocates, argues that the laws violate Delawareans' constitutional right to keep and bear arms.

Andrews ruled last year that the firearms and large-capacity magazines targeted by the laws are presumptively protected by the Second Amendment. Nevertheless, he refused to issue an injunction, saying the state had sufficiently established that the weapons and magazines “implicate dramatic technological change and unprecedented societal concerns for public safety.”

The gun restrictions are consistent with the historical tradition of firearm regulation in the United States, and opponents failed to demonstrate a likelihood of winning their lawsuit, Andrews concluded. He also said opponents had failed to show that they can’t adequately defend themselves with other firearms.

Delaware is one of nine states, along with the District of Columbia, that ban certain semiautomatic firearms labeled “assault weapons” by gun-control advocates. Delaware is one of 14 states, along with the District of Columbia, that restrict the size of ammunition magazines for semiautomatic weapons. The legal fight has drawn “friend-of-the court” briefs on both sides of the issue from several states.

“Every second of every day that Delaware’s law is enforced, it is preventing my plaintiffs from exercising their Second Amendment rights,” John Ohlendorf, an attorney representing the Firearms Policy Coalition and other appellants, told a three-judge panel in Philadelphia.

David Ross, an attorney hired by Delaware officials, said Andrews was correct in denying a preliminary injunction because the plaintiffs failed to demonstrate that the laws subjected them to irreparable harm.

Ross and other supporters of the laws also dismissed arguments that they should be declared unconstitutional because they target weapons and high-capacity magazines that are in common use and owned by millions of Americans.

“Common use is not and cannot be the exclusive criterion for Second Amendment analysis,” New Jersey Solicitor General Jeremy Feigenbaum argued.

Instead, according to supporters of the laws, a key question is whether the firearms in question are commonly used for self-defense. The answer, they contend, is “no.”

“Your prototypical hunting rifle is going to be useful in self-defense, in sharp contrast to the large capacity magazines or the assault weapons,” Feigenbaum said.

Judge Jane Roth seized on the self-defense issue, suggesting that it’s not enough for opponents of the law to say only that the banned firearms are capable of being used for self-defense, instead of showing that they are commonly used for that purpose.

“I’m not sure about these automatic assault weapons, whether they are being used in self-defense,” Roth said, incorrectly characterizing the firearms at issue as fully automatic machine guns.

Erin Murphy, an attorney representing the Delaware State Sportsmen’s Association and National Shooting Sports Foundation, quickly corrected Roth.

Murphy said arguments that the weapons can be banned because they are not typically used for self-defense are contrary to U.S. Supreme Court rulings. The court has rejected the idea that possession of semiautomatic handguns for self-defense can be banned as long as possession of other firearms is allowed, she said. Murphy also argued that any “bearable arm” that can be carried and can be used for self-defense is protected by the Second Amendment.

“There’s just not any argument to be made that a firearm ceases to be an arm simply because it has features like semiautomatic functionality and a detachable magazine,” she said.

Restrictions on gun ownership have come under increasing legal scrutiny following a U.S. Supreme Court decision in 2022 that established new standards for courts to evaluate such limitations. The court said judges should no longer consider whether a law restricting gun ownership serves public interests such as enhancing public safety. Instead, government officials must demonstrate that a proposed restriction is consistent with the country’s “historical tradition of firearm regulation.”

The ruling has led courts to overturn laws designed to keep guns away from domestic abusers, felony defendants and marijuana users. Earlier this year, the Third Circuit court ruled that that nonviolent offenders should not be subject to lifetime gun bans. That ruling came in the case of a man barred from buying a gun because he had pleaded guilty to misstating his income to receive food stamps for his family in 1995.