Delaware faces federal lawsuit over large capacity magazine ban

Suit alleges the state's new gun restrictions violate the Second and Fourteenth Amendments by preventing them from "exercising their fundamental right to keep and bear arms."

Updated: January 14, 2023 - 6:10am

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Delaware is facing a legal challenge over its ban on large capacity magazines from a group which claims it violates the constitutional right to bear arms.

A lawsuit filed Thursday in U.S. District Court by the Second Amendment Foundation on behalf of two gun owners, alleges the state's new gun restrictions violate the Second and Fourteenth Amendments by preventing them from "exercising their fundamental right to keep and bear arms.

The lawsuit asks a federal judge to grant preliminary and permanent injunctions preventing the state from enforcing the restrictions on large capacity magazines.

"Delaware arbitrarily labels standard capacity magazines capable of holding more than 17 rounds as “large capacity magazines” and bans them despite the fact that they, along with the firearms with which they are compatible, are in common use for lawful purposes," lawyers for the plaintiffs wrote in a 25 page complaint. "There is no historical tradition of this sort of firearm regulation in the United States."

Last June, Gov. John Carney signed a package of gun control measures that included a ban on the sale of assault-style weapons, an increase in the age to purchase most firearms from 18 to 21, strengthened background checks and limits on large capacity magazines. It also banned the use of devices that convert handguns into fully automatic weapons.

The proposals were pushed through the Democratic-controlled General Assembly in the wake of several mass shootings, including the massacre of 21 at an elementary school in Uvalde, Texas.

"We have an obligation to do everything we can to prevent tragedies like we’ve seen around the country from happening here in Delaware," Carney said in a statement at the time.

But Alan M. Gottlieb, the foundation's executive vice president, said the large capacity magazine ban "literally criminalizes one of the most common and important means by which Delaware citizens can exercise their right of self-defense." He said the restrictions "make self-defense a potential criminal act, and that must not be allowed to stand."

The group cited the U.S. Supreme Court's decision in the N.Y. State Rifle and Pistol Association v. Bruen case, which struck down a New York law requiring applicants to show “proper cause” to obtain a permit to carry a firearm. The high court's conservative majority affirmed the constitutional right to carry firearms in public places for self-defense.

Adam Kraut, the foundation's executive director, said reduced police manpower in many communities means "there is no guarantee that emergency calls to law enforcement will bring anything resembling a swift response."

"In the meantime, citizens must be able to rely on their fundamental rights, including the right to keep and bear arms for self-defense, and those rights must be protected," he said.