Federal vs. State vs. Federal

Now a case with a long procedural history is heading into a very interesting phase that might provide some insight into what happens when a state government affords broader rights to its citizens than might be conferred by the federal government.

In the case of Jane Doe and Charles Boone vs. Wilmington Housing Authority, the Third Circuit Court of Appeals has certified questions of law to the Delaware Supreme Court.  Specifically, the Third Circuit has asked for a construction and interpretation of a section of the Delaware Declaration of Rights in its state constitution.

The facts of the case involve a question of whether it is reasonable and necessary that tenants of a public housing project should be restricted from carrying or displaying a firearm or other weapon in a public common area, except when being transmitted to/from a residence or used in self-defense.

Counsel for the WHA tenants has argued that the restrictions might satisfy federal standards, but might simultaneously violate the Delaware state constitution.

This question of either broader constitutional protections or broader legal protections at the state level is not unique to this case or this state.  We’ve highlighted this tension in previous blogs, particularly as it relates to manufacturing of firearms or ammunition.  The context in which we pay particular attention relates to permissions conferred by states upon companies to manufacture firearms intra-state that might otherwise be unlawful in the inter-state marketplace.

The Third Circuit in its decision referenced two prior decisions that recognized that the Declaration of Rights in the Delaware Constitution is not a mirror image of the U.S. Constitution Bill of Rights.  The pertinent Delaware text is that “

[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 this level of express deference from the federal interim appellate court, we could be heading for an interesting response from the Delaware Supreme Court, which will feed into the ultimate decision by the Third Circuit in the WHA case.

The Third Circuit “Certification of Questions of Law” (dated July 18, 2013) can be found in the Orchid Advisors on-line research library on the US Courts page.