The matter of Doe v. Wilmington Housing Authority, Del. Supr., No. 403, 2013 (March 18, 2014), is a procedurally and factually interesting case that presents questions regarding the right to bear arms in public housing. Specifically, the case presents the question of whether provisions in a lease for public house that restrict when residents, members of the household and their guests may carry and possess firearms in common areas violate the constitutionally protected right to bear arms. Doe, which began in the Court of Chancery, was removed to the United States District Court for the District of Delaware (“District Court”). The decision of the District Court was appealed to the United States Court of Appeals for the Third Circuit (“Third Circuit”). The District Court and Third Circuit both concluded that the restrictions imposed by the Wilmington Housing Authority (“WHA”) do not violate the Second Amendment of the United States Constitution or the Delaware Constitution.
However, that did not conclude the inquiry. The Third Circuit certified questions regarding Article I, § 20 of the Delaware Constitution to the Delaware Supreme Court. Article I, § 20 provides, “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.” With regard to that Section, the Third Circuit presented two questions,
1. Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may adopt a policy prohibiting its residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense.
2. Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may require its residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon, as required by Del. Code Ann. tit. 11, §1441, on request, when there is reasonable cause to believe that the law or policies have been violated.
The Delaware Supreme Court answered both questions in the negative. The case, which is well worth reading, may be found here. In addition, you may view the oral argument here.
LeslieSpoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or firstname.lastname@example.org.