Delaware Reaffirms Bridgeville Intermediate Scrutiny for Article I, § 20 and Declines Bruen’s History-and-Tradition Test

I. Introduction

Case: Delaware Department of Safety and Homeland Security v. Gavin J. Birney
Court: Supreme Court of Delaware (en banc)
Date: September 8, 2026
Disposition: Superior Court reversed; H.B. 451 upheld under the Delaware Constitution.

The General Assembly enacted House Bill 451 (“H.B. 451”) to raise from 18 to 21 the minimum age to purchase, own, or possess most firearms and ammunition (excluding shotguns and muzzle-loading rifles), while creating exemptions for military, law enforcement, concealed-carry permit holders, and supervised hunting/sporting/recreational activities. Plaintiffs (an individual and two organizations) mounted a Delaware-constitutional challenge under Article I, Section 20 (“Section 20”), urging the courts to apply the U.S. Supreme Court’s “history and tradition” approach from New York State & Rifle Association, Inc. v. Bruen.

The Superior Court accepted the State’s asserted governmental objective and substantial relationship, but invalidated core portions of H.B. 451 on the third step of Delaware’s Section 20 intermediate-scrutiny framework, concluding the law overburdened self-defense by effectively barring handguns for 18–20-year-olds. The Delaware Supreme Court reversed, reaffirming Delaware’s established “means-scrutiny” approach for Section 20 and rejecting adoption of Bruen for state constitutional analysis.

II. Summary of the Opinion

  • Standard of review: The Court declined to adopt Bruen for Section 20 and reaffirmed Delaware’s intermediate-scrutiny “means-end” test as articulated in Doe v. Wilm. Hous. Auth. and Bridgeville Rifle & Pistol Club, Ltd. v. Small.
  • Standing: Although the State argued plaintiffs lacked standing, it conceded it did not raise standing below or in its opening brief. The Court held standing is prudential (not jurisdictional) in Delaware and therefore waivable; the State waived standing objections.
  • Facial posture: The Court treated the case as a facial challenge (not as-applied), emphasizing the presumption of constitutionality and the rule that a facial challenge fails if the statute has any constitutional applications.
  • Merits under intermediate scrutiny: The Superior Court correctly found (i) an important objective and (ii) a substantial relationship, but erred on (iii) burden. The Supreme Court held H.B. 451 does not burden self-defense more than reasonably necessary because it includes meaningful alternative pathways, particularly the concealed-carry exemption, and the trial court improperly discounted that exemption based on recordless assumptions about discretion, vagueness, and lack of review.

III. Analysis

A. Precedents Cited

1. Delaware’s Section 20 framework

The Court’s controlling Section 20 methodology comes from Doe v. Wilm. Hous. Auth. and Bridgeville Rifle & Pistol Club, Ltd. v. Small. In Doe, the Court emphasized Section 20 is “not a mirror image” of the Second Amendment and that Delaware’s doctrine is “not dependent upon federal interpretations.” It also adopted intermediate scrutiny for Section 20 challenges, reasoning that the 1987 constitutional amendment coexisted with longstanding firearms regulation.

Bridgeville articulated the familiar three-part intermediate scrutiny inquiry used here: (i) an important governmental objective that is more than a “general safety concern,” (ii) a substantial relationship between the regulation and that objective, and (iii) a showing the law does “not burden[] the fundamental right to bear arms in self-defense more than is reasonably necessary.”

2. Federal Second Amendment cases (declined as controlling for Section 20)

Plaintiffs urged the Court to adopt New York State & Rifle Association, Inc. v. Bruen, which replaced tiers-of-scrutiny analysis in Second Amendment cases with a “history and tradition” test. The opinion also discussed United States v. Rahimi (clarifying no “historical twin” is required but analogues must be “relevantly similar”) and United States v. Hemani (emphasizing similarity of “purpose and operation”).

The Delaware Supreme Court treated these federal decisions as important only for federal Second Amendment claims, not for determining the Delaware Constitution’s own analytic framework. The Court also relied on state-federal interpretive independence principles found in City of Mesquite v. Aladdin's Castle, Inc. and Florida v. Powell.

3. Third Circuit and the “18–20” circuit split

Plaintiffs leaned heavily on Lara v. Commissioner Pennsylvania State Police, a Third Circuit decision applying Bruen to invalidate a Pennsylvania emergency-period restriction on 18–20-year-olds’ public carry. The Delaware Supreme Court held Lara is not binding on Delaware’s Section 20 analysis and emphasized the instability of Bruen outcomes reflected in the federal split:

  • Worth v. Jacobson and Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives (striking down comparable age-based restrictions).
  • Nat'l Rifle Ass'n v. Bondi (en banc), McCoy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, and Rocky Mt. Gun Owners v. Polis (upholding age-based restrictions or purchase-age conditions).

This division reinforced the Court’s conclusion that importing Bruen into Delaware constitutional law would introduce uncertainty without offsetting doctrinal necessity.

4. Standing and waiver

The Court’s standing discussion relies on Delaware decisions describing standing as prudential self-restraint: Albence v. Higgin and Dover Hist. Soc'y. v. City of Dover Plan. Comm'n. It contrasted federal Article III standing principles (e.g., Lujan v. Defs. of Wildlife and Diamond Alt. Energy, LLC v. Env't. Prot. Agency) with Delaware’s lack of a constitutional “case or controversy” limitation, citing ASARCO Inc. v. Kadish.

Critically, the Court limited broad language in Employers Insurance Co. of Wausau v. First State Orthopaedics, P.A., clarifying that Delaware standing is waivable because it is not jurisdictional. The State’s failure to raise standing below or in its opening brief triggered waiver under Delaware Supreme Court Rule 14(b)(vi)(A)(3).

5. Facial challenge principles and deference

On the merits posture, the Court cited Delaware authority on facial challenges and deference to legislative enactments, including Justice v. Gatchell, Klein v. Nat'l Pressure Cooker Co., Town of Fenwick Island v. State, and Roberson v. State. It also applied the “any set of circumstances” rule through cases like Newark Prop. Ass'n (citing Del. Bd. of Med. Licensure & Discipline v. Grossinger) and its own decision in Johns v. State.

The Court further grounded its analysis in precedent recognizing regulated concealed carry as consistent with Section 20: Short v. State, Smith v. State, Dickerson v. State, and Griffin v. State (the latter applying a balancing approach derived from State v. Hamdan to concealed carry in the home context).

B. Legal Reasoning

1. The central doctrinal holding: Section 20 remains “means-end” intermediate scrutiny

The opinion’s key doctrinal contribution is explicit: Delaware will “continue to employ intermediate scrutiny to Section 20 challenges under the Delaware Constitution,” and will not adopt Bruen’s history-and-tradition test for state constitutional review. The Court offered three linked reasons:

  1. Textual and doctrinal independence: Section 20 is not the Second Amendment’s mirror, and Delaware courts need not be “in lock step” with federal interpretive methods.
  2. The “federal floor” is enforced through federal claims: Even if Bruen marks a federal minimum, it constrains Delaware through Second Amendment litigation—not by forcing Delaware to redefine how it analyzes its own constitution.
  3. Administrability concerns: The Court echoed the Superior Court’s and other jurists’ concern that Bruen is difficult to apply and yields divergent outcomes, especially in the under-21 context, which remains unsettled in the federal system.

2. Standing: prudential in Delaware and therefore waivable

The Court resolved an important procedural question: unlike federal standing, Delaware standing is not jurisdictional. This allowed the Court to hold that the State waived standing challenges by failing to raise them below or in its opening brief, despite later arguing standing cannot be waived. The decision thus tightens Delaware appellate practice: if a party intends to press standing as a defense in Delaware constitutional litigation, it must preserve it.

3. Framing the case as a facial challenge

Although plaintiffs attempted to characterize the case as both facial and as-applied, the Court treated it as facial because: (i) the only named individual (Birney) conceded he lacked standing due to age-out and concealed-carry licensure, and (ii) the organizational plaintiffs offered no member-specific record enabling fact-intensive as-applied review. This posture mattered because it elevated the presumption of constitutionality and invoked the decisive principle that a single constitutional application defeats a facial challenge.

4. Applying the Bridgeville third prong: “burden no more than reasonably necessary”

The Superior Court accepted H.B. 451’s objective and fit but held the law “overburdened” self-defense because it restricted handguns and, in the trial court’s view, the concealed-carry carveout was illusory (discretionary, vague, and lacking review). The Supreme Court reversed based on three main corrections:

  • Carveouts must be considered in burden analysis: The Court rejected the proposition that “a constitutionally-protected right cannot be reliant on a discretionary licensing procedure,” explaining intermediate scrutiny requires evaluating how exemptions mitigate burden.
  • The record did not support the trial court’s assumptions: The Superior Court’s critique of § 1441’s operation lacked factual development, and it incorrectly concluded there is no review mechanism; Superior Court rules provide a hearing process upon request.
  • Facial challenge fails if carveout is constitutionally available to some: Because H.B. 451 is constitutional as applied to individuals who can obtain concealed-carry permits, plaintiffs could not sustain a facial invalidation. The Court highlighted Birney’s own experience: he obtained a permit in 65 days, demonstrating at least one constitutional application.

The Court also underscored that Delaware’s permitting regime is widely approved in practice and was characterized by the U.S. Supreme Court as operating “like ‘shall issue’ jurisdictions” in New York State & Rifle Association, Inc. v. Bruen.

C. Impact

1. Delaware constitutional firearms litigation: Bruen is not the Section 20 rule

The most immediate impact is doctrinal clarity: Section 20 claims remain governed by Doe/Bridgeville intermediate scrutiny. Litigants seeking to invoke Bruen must bring a federal Second Amendment claim, not merely a Delaware constitutional claim, if they want the history-and-tradition methodology to control.

2. Litigation strategy: pleading and proof burdens increase for “as-applied” challenges

The Court’s insistence on a member-specific record for organizational “as-applied” arguments pressures plaintiffs to identify affected members, develop factual showings (e.g., permit denials, processing delays, inconsistent standards), and avoid abstract, class-wide assertions if they want more searching review of how exemptions function “in practice.”

3. Appellate practice: standing defenses must be preserved

By holding standing is waivable in Delaware, the Court signals that defendants—especially the State—must raise standing early or risk forfeiture. This is likely to influence how constitutional and public-law cases are litigated in Delaware trial courts and briefed on appeal.

4. Regulatory design: “alternative pathways” matter under the third prong

The opinion incentivizes legislators and regulators to build meaningful exceptions and licensure pathways when restricting firearms access. Under the Bridgeville third prong, broadly available, workable alternatives can be dispositive—particularly against facial challenges.

IV. Complex Concepts Simplified

  • Article I, § 20 (Delaware): Delaware’s explicit constitutional right to keep and bear arms for self-defense (and also hunting/recreation), which is textually different from the Second Amendment.
  • Intermediate scrutiny / “means-end” review: A structured balancing test asking whether the government has an important objective, whether the law substantially advances it, and whether the law burdens self-defense no more than reasonably necessary.
  • Bruen “history and tradition” test: A federal Second Amendment approach requiring government to justify modern gun regulations by showing they fit within America’s historical tradition of firearm regulation.
  • Facial vs. as-applied challenge: A facial challenge argues a law is invalid in all applications; it fails if the law is constitutional in even one real set of circumstances. An as-applied challenge targets the law’s effect on a particular person or situation and usually requires detailed facts.
  • Standing (Delaware vs. federal): In federal court, standing is jurisdictional and cannot be waived. In Delaware, standing is a prudential doctrine (self-restraint), and this case holds it can be waived if not timely raised.
  • “Carveout” / exemption: A statutory exception that reduces a law’s burden on constitutional rights; courts may consider carveouts when assessing how burdensome a restriction is.

V. Conclusion

Delaware Department of Safety and Homeland Security v. Gavin J. Birney establishes two especially significant guideposts for Delaware law: (1) Delaware will not constitutionalize Bruen into Section 20 analysis and will instead continue to apply the Doe/Bridgeville intermediate-scrutiny framework; and (2) standing in Delaware is prudential and waivable, placing a premium on issue preservation.

Substantively, the Court’s application of the Bridgeville third prong highlights that “alternative pathways” (notably, licensure-based exemptions) can be decisive in defeating facial challenges—particularly where plaintiffs do not build a record demonstrating that those pathways are practically unavailable or administered in a manner that creates unconstitutional burdens.