Bridgeville Rifle & Pistol Club, Ltd. v. Small

These amici also assert evidence-based arguments which this Court cannot consider given that there is no evidentiary record in the proceeding below. See Briefs for Law Enforcement Action Network; Law Enforcement Legal Defense Fund; Members of the Delaware General Assembly; Retired Delaware Police Officers Hosfelt, Smith, Deputy, Egolf, Monaghan, Briggs, Roe, Brode, Capitan, Konnick and Guittari; The National Rifle Association of America, Inc.; and The Pink Pistols as Amici Curiae Supporting Appellants. See also Brief for The Law Center to Prevent Gun Violence as Amicus Curiae Supporting Appellees.

Del. Const. art. I, § 20.

Doe v. Wilm. Hous. Auth. , 88 A.3d 654, 665 (Del. 2014). (emphasis added). Thus, "our interpretation of Section 20 is not constrained by ... federal precedent ...." Id.

Id. (emphasis in original).

7 Del. Admin. C. § 9201–21.1.

7 Del. Admin. C. § 9201–1.0; see Public Protected Lands , State of Delaware , https://data.delaware.gov/Recreation/Public-Protected-Lands/whe2-8n4h/data (last visited Nov. 27, 2017) [hereinafter Public Protected Lands Data].

7 Del. Admin. C. § 9201–21.3.

7 Del. C. § 4702(a) ; 7 Del. Admin. C. §§ 9201–21 (classification as an Environmental D Violation), –25.1.

3 Del. Admin. C. § 402–8.8.

See Public Protected Lands Data, supra note 6.

See 3 Del. Admin. C. §§ 402–8.2, –11.

Id. § 402–10.2.

Section 8.8 does not even allow possession with the written permission of the DOA's Agriculture Secretary. Id. § 402–8.8.

Bridgeville Rifle & Pistol Club, Ltd. v. Small , 2016 WL 7428412, at *5 (Del. Super. Ct. Dec. 23, 2016). As the parties cross-moved for judgment on the pleadings, the Superior Court decided the case based on the motions and the accompanying appendices. Id. at *1 (citing Super. Ct. Civ. R. 56(h) ).

Doe , 88 A.3d at 667.

Bridgeville , 2016 WL 7428412, at *5.

See, e.g. , Ezell v. City of Chicago , 651 F.3d 684, 708 (7th Cir. 2011) (striking down a firearms regulation that constituted a "serious encroachment on ... the meaningful exercise of the core right to possess firearms for self-defense.").

Doe , 88 A.3d at 665.

Id.

Id.

Doe , 88 A.3d at 667.

Id. at 664 (citing Short v. State , 586 A.2d 1203, 1991 WL 12101, at *1 (Del. Jan. 14, 1991) ).

Id. (citing Smith v. State, 882 A.2d 762, 2005 WL 2149410, *3 (Del. Aug. 17, 2005) ).

At oral argument, the State agreed that Agency power is limited by the Constitution—and in particular that the Regulations are subject to Section 20. See Oral Argument at 40:10, https://livestream.com/accounts/5969852/events/7714841/videos/162711371/player ("[T]he Regulations are clearly subject to examination as to whether they satisfy and do not violate that constitutional provision [Article I, Section 20 ].").

See, e.g. , 11 Del. C. § 602 (prohibiting display of a firearm with the intent to place another in fear of imminent physical injury); id. § 603 (prohibiting guardians from allowing possession or purchase of a firearm by a juvenile); id. § 1441 (allowing retired police officers to be specially licensed to carry a concealed weapon following retirement); id. §§ 1441A, 1441B (extending federal law regarding retired law enforcement officers' ability to carry concealed firearms); id. § 1442 (prohibiting a non-law enforcement officer to conceal any firearm without a license); id. § 1444 (prohibiting the possession of a firearm silencer, sawed-off shotgun, machine gun, or any other firearm or weapon adaptable for use as a machine gun); id. § 1445 (prohibiting the sale or transfer of a firearm to a minor); id. §§ 1447, 1447A (criminalizing possession of a firearm during the commission of a felony); id. § 1448 (prohibiting certain persons from owning, using or purchasing firearms); id. § 1448A (requiring a criminal background check prior to the purchase or sale of a firearm); id. §§ 1454, 1455 (criminalizing the act of giving a firearm to a prohibited person or engaging in a sale or purchase of a firearm on behalf of a person not legally allowed to sell or purchase firearms); id. § 1456 (criminalizing unlawfully permitting a minor access to a firearm); id. § 1459 (prohibiting the possession of a firearm with an obliterated serial number); id. § 1460 (prohibiting possession of a firearm in a public place while under the influence); see also 7 Del. C. § 1707 (prohibiting the training of hunting dogs while carrying a firearm); 9 Del. C. § 330 (prohibiting counties from regulating firearms); 10 Del. C. §§ 2703, 2806 (regulating the possession of firearms by constables); id. § 9224 (requiring drug testing for Justice of the Peace employees permitted to carry firearms); id. § 1045 (allowing court to order temporary relinquishment/ban on possession of firearms in connection with a protective order); 24 Del. C. §§ 901, 902, 903, 904, 905 (regulating the sale of firearms); id. § 1321 (prohibiting security guards from carrying firearms without proper licensing); 29 Del. C. § 9005(13) (requiring training for officers of Department of Services for Children, Youth and Their Families who carry firearms at work).

Doe , 88 A.3d at 661 (citing Sheehan v. Oblates of St. Francis de Sales , 15 A.3d 1247, 1258 (Del. 2011) ).

App. to Appellants' Opening Br. at A368 (State Park Commission of Delaware Apr. 10, 1962, Meeting Minutes); id. at A194 (letter dated Aug. 19, 2016, Agencies' Response to Superior Court's request that "counsel provide the language of the Regulations governing firearms through the years, and the dates of any changes"); id. at A448–49 (letter dated Sept. 2, 2016, concerning Defendants' Response to the Court's request). The dissent notes that DNREC was created in 1937, see Dissent at 675-76, but it cites no statewide ban on possession of firearms in State Parks until 1962. The dissenters therefore must concede that: (i) there was no continuous ban on possession of firearms in State Parks until 1977; and (ii) there was no continuous ban on possession in State Forests until 2003—after Section 20's passage.

Id. at A368 (State Park Commission of Delaware Apr. 10, 1962, Meeting Minutes).

Id. at A352 (State Park Commission of Delaware Rules and Regulations, Effective June 18, 1968, § 9.01).

Id. at A345 (State Park Commission of Delaware Rules and Regulations, Effective Apr. 26, 1969, § 9.01).

Id. § 9.01(b).

Id. § 9.01(a).

Id. at A325 (State of Delaware Park Rules and Regulations, DNREC Division of Parks & Recreation, Effective May 26, 1977, § 8.04).

No version of the Regulations outlines standards or criteria regarding such approval or the process for obtaining it. There is no evidence that the Director or his authorized agent has ever granted such approval. Nor is there any evidence or reason to believe that this exception is a remedy available to the ordinary park visitor.

Id. at A332 (State of Delaware Park Rules and Regulations, DNREC Division of Parks & Recreation, Effective May 26, 1977, § 10.01(f)).

Id.

7 Del. Reg. 1768, 1780 (June 2004), available at App. to Appellants' Opening Br. at A238, A250.

Id. The revision also added the word "by" to the clause "except those persons lawfully," so the provision reads "except by those persons lawfully." Id.

7 Del. Admin. C. § 9201–21, available at App. to Appellants' Opening Br. at A235.

App. to Appellants' Opening Br. at A428, A439 (State of Delaware Department of Agriculture State Forest Rules at ¶ 8); see id. at A198 (table of contents for Appendix B to letter dated Aug. 19, 2016, Agencies' response to Superior Court's request that "counsel provide the language of the Regulations governing firearms through the years, and the dates of any changes") (providing dates for the Department of Agriculture State Forest Regulations and listing 1979 as the earliest such regulation).

6 Del. Reg. 1201, 1204, § 7.9 (Mar. 1, 2003), available at App. to Appellants' Opening Br. at A399.

9 Del. Reg. 1425, 1429 at § 8.8 (Apr. 1, 2006), available at App. to Appellants' Opening Br. at A392; see 10 Del. Reg. 88, 89 (July 1, 2006) (adopting proposed regulation), available at App. to Appellants' Opening Br. at A387.

In re Request of Governor for an Advisory Opinion , 905 A.2d 106, 108 (Del. 2006). In District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the United States Supreme Court emphasized the importance of surveying the relevant history in addition to the text when analyzing the Second Amendment to the United States Constitution, the federal analogue to our Section 20. See also Wrenn v. District of Columbia , 864 F.3d 650, 658 (D.C. Cir. 2017) (noting that historical analysis is "essential for tracing the 'pre-existing right' embodied by the [Second] Amendment" (quoting Heller , 554 U.S. at 592, 128 S.Ct. 2783 ) (emphasis in Heller )). In Wrenn , the D.C. Circuit criticized courts that have "dispensed with the historical digging" that Heller "makes essential to locating the Amendment's edge, or at least its core." 864 F.3d at 661.

Doe , 88 A.3d at 665.

Doe , 88 A.3d at 665 (emphasis in original).

Peruta v. California , ––– U.S. ––––, ––––, 137 S.Ct. 1995, 198 L.Ed.2d 746, 2017 WL 176580, at *1 (2017) (denying writ of certiorari), discussed infra at note 100.

Randy J. Holland, State Jury Trials and Federalism: Constitutionalizing Common Law Concepts , 38 Val. U. L. Rev. 373, 375 (2004). In Dorsey v. State , this Court held that "Delaware judges cannot faithfully discharge the responsibilities of their office by simply holding that the Declaration of Rights in Article I of the Delaware Constitution is necessarily in 'lock step' with the United States Supreme Court's construction of the federal Bill of Rights." 761 A.2d 807, 814 (Del. 2000) ; see also Randy J. Holland, The Delaware State Constitution 36 (2d ed. 2017) ("The provisions in the federal Bill of Rights set only a minimum level of protection.").

See, e.g. , App. to Appellants' Opening Br. at A91 (Defs.' Reply Br. in Support of Defs.' Mot. for Summary Judgment on the Pleadings and Answering Br. on Pls.' Mot. for Judgment on the Pleadings) ("[T]he right extends beyond the home to a lesser degree.").

Del. Const. art. I (Reserve Clause). Our dissenting colleagues accuse us of giving Section 20 a "federal coat of paint." Dissent at 664. Yet they refuse to follow the recent unanimous, en banc decision of this Court in Doe : they say they "disagree" with it and find the case "problematic." Dissent at 698-99. It is troubling that the dissenters advocate ignoring the principles of stare decisis and, instead, would base decisions on their own views of which of our fundamental rights are worth protecting. Such an approach, were it to be followed, would undermine the stability of our law. In addition, the dissenters ignore the Reserve Clause altogether.

The 1792 convention delegates unanimously approved the Declaratory Clause subjoined to the first Article, which provided: "WE declare that every Thing in this Article is reserved out of the general Powers of Government herein after mentioned." Minutes of the Convention of the Delaware State 65 (Dover, Del., 1792 printed by Brynberg & Andrews), available at RG 1115.000 House of Assembly Minutes and Proceedings, 1776–1791 Box # 6 (Dover, Del. Public Archives).

Article 30 of the 1776 Constitution provided:

No article of the declaration of rights and fundamental rules of this state, agreed to by this convention, nor the first, second, fifth (except that part thereof that relates to the right of suffrage) twenty-sixth and twenty-ninth articles of this constitution, ought ever to be violated on any pretence whatever . No other part of this constitution shall be altered, changed or diminished, without the consent of five parts in seven of the Assembly, and seven Members of the Legislative Council.

293 A.2d 551 (Del. 1972).

Id. at 554.

Id. at 553.

See Del. Const. art. XVI, § 1.

293 A.2d at 554.

Doe , 88 A.3d at 663.

Id. In addition to historically being an open carry state, Delaware is one of the overwhelming majority of states that permits concealed carry with a license. See 11 Del. C. § 1441. By pointing to a thirty-year period in the 1800s when concealed carry was prohibited in Delaware, our dissenting colleagues suggest that regulations effecting a total ban are thus permissible. See Dissent at 677. The dissenters almost entirely ignore that Delaware has permitted open carry since its inception. They miss that Delaware has always permitted some meaningful avenue to exercise the right to bear arms, whether that avenue be through open carry or concealed. The crucial fact here is that the Regulations allow for neither. Further, the better reading of the historical precedents shows that states have had flexibility to favor either mode (open or concealed carry) or both, and have run afoul of constitutionally protected rights to bear arms when they have banned both—as the Regulations do here. See, e.g., Nunn v. State , 1 Ga. 243 (Ga. 1846), for example, where the Georgia Supreme Court upheld a concealed carry ban, that court also stated that a statute that banned both open and concealed carry "is in conflict with the Constitution, and void." Id. at 251 ; see also State v. Reid, 1 Ala. 612, 616–617 (1840) ("A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional."); Bliss v. Com. , 12 Ky. 90, 91 (1822) (suggesting that a regulation that "import[s] an entire destruction of the right of the citizens to bear arms in defense of themselves and the state" would be plainly unconstitutional). Moreover, the dissent's references to the Northampton statute (originating in 1328), see Dissent at 672, 673, are "neutralized" by Heller , as the Wrenn court concludes: "[e]arly commentators seem to confirm that whatever Northampton banned on the shores of England or colonial America, the right to bear arms by the time of the Founding was thought to protect carrying for self-defense generally." 864 F.3d at 660.

Doe , 88 A.3d at 663 (citing Heller , 554 U.S. at 595, 128 S.Ct. 2783 (quoting 1 Blackstone's Commentaries 145–46 n.42 (1803) (alteration in original))).

An Act for Establishing a Militia in this Government (passed Nov. 5, 1757) (italics supplied), microformed on RG 1111.000 Legislative Papers, 1731–1775 (Dover, Del. Public Archives); see also An Act for Establishing a Militia in this State (passed Feb. 22, 1777) (Wilm., Del., James Adams 1777) (emphasis added), available at IMP F161.31.A21 R28 M64 (Wilm., Del., Del. Historical Soc'y Archives):

WHEREAS Self–Preservation is the first Principle and Law of Nature, and a Duty that every Man indispensably owes not only to himself but to the Supreme Director and Governor of the Universe who gave him a Being:
AND WHEREAS in a State of Political Society and Government all Men by their original Compact and Agreement are obliged to unite in defending themselves, and those of the same Community, against such as shall attempt unlawfully to deprive them of their just Rights and Liberties; and it is apparent that without Defence no Government can possibly subsist:
...
FOR PREVENTION whereof, and that the Inhabitants of this State may be armed, trained and disciplined in the Art of War, whereby they may be enabled not only to assert their just Rights but also to defend themselves, their Lives and Properties, and preserve inviolate that Freedom they derived from their Ancestors and the Constitution, and transmit the fair Inheritance to their Posterity;

Doe , 88 A.3d at 663 (quoting Heller , 554 U.S. at 594, 128 S.Ct. 2783 ); see also, Samuel Adams, The Rights of the Colonists as Men (Nov. 20, 1772), reprinted in The Constitution of the United States of America and Selected Writings of the Founding Fathers (2012) at 19. ("Among the natural rights of the colonists are these: First, a right to life. Second, to liberty. Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.").

Del. Const. of 1776 art. 25 ("The common law of England, as well as much of the statute law as have been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, agreed to by this convention."). This Court has repeatedly held that Delaware law includes the English common law as it existed in 1776, except where it has been clearly modified by our statutory law. See Del. Const. of 1897, Schedule § 18; Quillen v. State , 110 A.2d 445, 450 (Del. 1955) ("Apart from statute[,] our law is in general the common law of England as it existed in 1776 ...."); Steele v. State , 151 A.2d 127, 130 (Del. 1959) ("Except as insofar as it has been found to be inconsistent with our statutory law, the common law of England is part of the law of this state. It was first adopted in the Constitution of 1776, Article 25. The same section was reenacted in each of the three succeeding constitutions: Constitution of 1792, Article VIII, Section 10 ; Constitution of 1831, Article VII, Section 9; and in our present Constitution of 1897, Schedule, § 18."). In contrast to Doe and Heller , the dissent ignores the English common law heritage at the time of our state's early history that was expressly incorporated into our laws and, puzzlingly, focuses on "the state of firearm regulation in England as of 1977." Dissent at 679. That discussion is irrelevant.

Heller , 554 U.S. at 593, 128 S.Ct. 2783 (citing Edward Dumbauld, The Bill of Rights and What It Means Today 51 (1957); William Rawle, A View of the Constitution of the United States of America 122 (1825)).

Heller , 554 U.S. at 593, 128 S.Ct. 2783 (quoting 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441).

Id. (emphasis added).

Id. at 599, 628, 128 S.Ct. 2783. Further, Chancellor James Kent wrote in his 1826 Commentaries on American Law :

The municipal law of our own ... country[ ] has likewise left with individuals the exercise of the natural right of self[-]defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence. [...] The right of self-defence in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society.

Votes and Proceedings of the House of Assembly of the Delaware State 21, 39 (Wilm., Del., 1790 printed by James Adams), microformed on RG 1115.000 House of Assembly Minutes and Proceedings, 1776–1791 (Dover, Del. Public Archives).

See Minutes of the Grand Committee of the Whole Convention of the Delaware State (Wilm., Del., 1792 printed by James Adams), reprinted in Proceedings of the House of Assembly of the Delaware State 1781–1792 and of the Constitutional Convention of 1792 , at 777; Claudia L. Bushman, Harold B. Hancock, & Elizabeth Moyne Homsey, Introduction to Proceedings of the House of Assembly of the Delaware State 1781–1792 and of the Constitutional Convention of 1792 , at 35.

Doe , 88 A.3d at 663.

See 3 Documentary History of the Ratification of the Constitution , 56 (Merrill Jensen, ed. State Historical Society of Wisconsin 1978). The first state elections under the 1776 Constitution "were characterized by violence, especially in Sussex County." Id. at 39. The Tories prevailed in Sussex County, possibly because "[a]rmed Tories had driven Whigs from the polls ...." Id. Whig leaders Caesar Rodney and Thomas McKean (two of three of Delaware's delegates to the Continental Congress who voted in favor of independence) lost their campaigns, "but the next year the Whigs retaliated in kind and won control" of the General Assembly, which then elected Rodney president, a role comparable to that of governor. Id. In 1778 "the Whig-controlled legislature adopted an act denying political rights to those who refused to take oaths of allegiance to the state, and an act confiscating Tory property." Id. By 1786 the Tories had regained control. Id.

Doe , 88 A.3d at 663.

See Documentary History of the Ratification of the Constitution , supra note 70, at 56; John A. Munroe, Delaware and the Constitution: An Overview of Events Leading to Ratification , 22 Del. Hist. 219–38 (1987–88), reprinted in The Philadelawareans and Other Essays Relating to Delaware 250, 261–64 (2004).

Petition (Oct. 20, 1787), reprinted in Documentary History of the Ratification of the Constitution , supra note at 70, at 64–65.

The legislature resolved the issue when it voided the election results and scheduled a new Sussex County election for November 26, 1787. The statewide election of delegates to the ratification convention (for the United States Constitution) was to occur the same day. The result was a "Tory victory" in Sussex County. The Whigs unsuccessfully petitioned the legislature to challenge the election results. Documentary History of the Ratification of the Constitution, supra note 70, at 41; see also id. at 92–93.

Doe , 88 A.3d at 663. The U.S. Supreme Court similarly explained that, during that time, rival parties agreed on at least one thing: "Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government." McDonald v. City of Chicago , 561 U.S. 742, 769, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ; see also Documentary History of the Ratification of the Constitution, supra note 70, at 39 ("The animosity among political leaders and the violence on election days were probably unmatched in any other state, but at the same time Delawareans seemed remarkably united in their attitude toward other states and the government of the United States.").

Del. Const. of 1792 pmbl.; Minutes of the Convention (Wilm. Del., 1792 printed by Peter Brynberg & Samuel Andrews), supra note 50, at 918.

Del. Const. of 1831 pmbl.; Del. Const. of 1897 pmbl. (current constitution). The dissenters' reference to a few laws from the 1800s prohibiting the discharge of firearms within town limits, see Dissent at 673–74, does not demonstrate a longstanding tradition of banning the possession of firearms. Commenting on similar laws, the majority in Heller noted such laws "provide no support for the severe restriction in the present case." 554 U.S. at 632, 128 S.Ct. 2783.

Doe , 88 A.3d at 663.

See House Debate on H.B. 554 at 1:26, 3:56, 133d Gen. Assem. (May 22, 1986); Sen. Debate on H.B. 30 at 35:30, 38:00, 41:15, 134th Gen. Assem. (Apr. 16, 1987). For example, in Hetherton v. Sears, Roebuck & Co. —a 1981 opinion alluded to in the Section 20 legislative debates—the Third Circuit suggested as dicta that the right to own a gun is not a "fundamental right" and that "Delaware could ban the sale of all deadly weapons" and that the State had the "power to effect a total ban" if it so chose. 652 F.2d 1152, 1157–58 (3d Cir. 1981). Further, several decisions had held that the Second Amendment did not apply to the states. See, e.g., Quilici v. Morton Grove , 695 F.2d 261, 270 (7th Cir. 1982). At oral argument, the State agreed that this uncertainty prompted the enactment of Section 20 :

STATE: [C]learly the Second Amendment was in existence, but there was some question—even in 1987—as to whether it conferred an individual right, and whether it could be applied to the states.
COURT: And wasn't that the impetus for Section 20?
STATE: That's right.

Del. H.B. 554 syn., 133d Gen. Assem. (1986) (emphases added).

Del. H.J., 133d Gen. Assem. 269 (1986).

Del. S.J., 133d Gen. Assem. 342 (1986) (recording eighteen yeas, one nay; one abstention; one absence).

Del. H.J., 134th Gen. Assem. 15 (1987); Del. H.B. 30 syn., 134th Gen. Assem. (1987) (emphases added).

House Administration Committee Meeting Minutes at 2 (Apr. 1, 1987).

See House Debate on H.B. 30 at 1:00, 134th Gen. Assem. (Apr. 2, 1987); Del. H.J., 134th Gen. Assem. 44 (1987) (recording that, with the exception of one absent member, the House unanimously voted in favor of H.B. 30); Sen. Debate on H.B. 30 beginning at 1:00, 134th Gen. Assem. (Apr. 16, 1987) (indicating that the Senate debated H.B. 30 for nearly an hour); Del. S.J., 134th Gen. Assem. 56 (1987) (recording seventeen yeas, one nay; one abstention; and two absences). The dissenters' citations to cherry-picked quotations of a few individual legislators do not undermine the clear text of Section 20 or detract from its stated purpose of explicitly protecting the traditional right to keep and bear arms. The dissent boldly purports to know the intentions of the members of the General Assembly, our governors, and representatives in Congress in asserting that a "bipartisan consensus" supports classifying parks as "sensitive places" where guns should be banned. See Dissent at 663–64, 664–66, 666–67, 706-07, 712. But, in addition to being contradicted by the actual legislative history from the time of Section 20's passage and Section 20's text, that assertion is belied by—among other things—the amicus brief filed on behalf of numerous members of the General Assembly who contend that the Agencies have "overstepped their mandate by issuing and enforcing regulations that state law preempts and that are outside the scope of the authority the General Assembly delegated to them." Amicus Br. at 2.

Doe , 88 A.3d at 664 n.37 ("A fundamental right has been defined as a right that is guaranteed either explicitly or implicitly by the constitution." (citing San Antonio Ind. Sch. Dist. v. Rodriguez , 411 U.S. 1, 33–34, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) )).

554 U.S. at 581, 583–84, 128 S.Ct. 2783 (finding that the phrase "right of the people" as used in the Second Amendment meant that the right "is exercised individually," as opposed to being a collective right belonging to a militia; " '[k]eep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else "; and "bear" meant "carry") (emphasis in original) (citations omitted).

Id. at 629, 128 S.Ct. 2783.Heller addressed a challenge to a District of Columbia statute that banned entirely the possession of handguns in the home and required that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. Id. at 574, 128 S.Ct. 2783.

See 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (In his majority opinion, at 758–59, Justice Alito observed that the Supreme Court had "never previously addressed the question whether the right to keep and bear arms applies to the States under [the Due Process Clause] theory").

Id. at 768, 130 S.Ct. 3020 (citation omitted) (internal quotation marks omitted).

Id. at 767, 130 S.Ct. 3020 (quoting Heller , 554 U.S. at 599, 128 S.Ct. 2783 ) (footnote omitted).

Heller , 554 U.S. at 592, 128 S.Ct. 2783 ("[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right" and observing that "[t]he very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' ") (emphasis in original); McDonald , 561 U.S. at 757, 130 S.Ct. 3020 ("[T]he right of bearing arms for a lawful purpose 'is not a right granted by the Constitution' and is not 'in any manner dependent upon that instrument for its existence.' " (quoting United States v. Cruikshank , 92 U.S. 542, 553, 23 L.Ed. 588 (1875) )). The Third Circuit now adheres to the post-Heller view that the "Second Amendment protects an individual's right to possess a firearm 'unconnected with militia service.' " Binderup v. Attorney Gen. United States of Am. , 836 F.3d 336, 343, 357 (3d Cir. 2016) (quoting Heller , 554 U.S. at 582, 128 S.Ct. 2783 ) (view expressed in two plurality opinions accounting for majority of the en banc Third Circuit), cert. denied sub nom. Sessions v. Binderup , ––– U.S. ––––, 137 S.Ct. 2323, 198 L.Ed.2d 746 (2017), and cert. denied sub nom. Binderup v. Sessions , ––– U.S. ––––, 137 S.Ct. 2323, 198 L.Ed.2d 746 (2017) ). The Third Circuit also noted that McDonald confirms that the Second Amendment applies to the states through the Fourteenth Amendment "because the right is 'fundamental' to 'our system of ordered liberty.' " Id. at 346 (quoting McDonald , 561 U.S. at 778, 791, 130 S.Ct. 3020 ).

Heller , 554 U.S. at 592, 128 S.Ct. 2783 ("This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed." (quoting United States v. Cruikshank , 92 U.S. 542, 553, 23 L.Ed. 588 (1875) )) (internal quotation marks omitted).

Id. at 599–600, 128 S.Ct. 2783 (quoting Robertson v. Baldwin , 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897) ).

Id. at 593, 128 S.Ct. 2783 (citation omitted). As with Doe , our dissenting colleagues refuse to accept Heller and McDonald as valid and binding law. Although they acknowledge that this Court in Doe embraced both Heller and McDonald and read them into the Delaware Constitution, see Dissent at ––––, the dissenters dispense with the "bare Heller majority" as "odd" in recognizing the pre-existing right to keep and bear arms. Dissent at 668 n.195. The dissenters argue that, "in the name of originalism," the Heller majority "has denuded the text of the Second Amendment of any meaning as to its most evident meaning ...." Id. The dissenters thus refuse to recognize the holdings in either Doe or Heller as having any real force and denigrate these decisions as the product of "novel principles of federal constitutional law favored by gun rights advocates ...." Id. at 713.

Heller , 554 U.S. at 593–94, 128 S.Ct. 2783.

Id. at 594, 128 S.Ct. 2783 (quoting 1 Blackstone's Commentaries 145, 145–46 n.42 (1803)). In The Second Amendment in the Nineteenth Century , David Kopel notes that "[t]he first scholarly analysis of the Second Amendment is found in St. George Tucker's American edition of Blackstone's Commentaries , published in 1803." David B. Kopel, The Second Amendment in the Nineteenth Century , 1998 B.Y.U.L. Rev. 1359, 1370 (1998) (citing William Blackstone, Commentaries (St. George Tucker ed., Lawbook Exchange, Ltd. 1996) (1803)). Tucker wrote of the Second Amendment that: "This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature ...." Id. at 1377 (footnote omitted).

An Act for Establishing a Militia in this Government (passed November 5, 1757), microformed on RG 1111.000 Legislative Papers, 1731–1775 (Dover, Del. Public Archives).

As the Court observed in Dorsey v. State , "[p]rior to the American Revolution, many aspiring colonial attorneys traveled to London to study law at the Middle Temple or one of the other English Inns of Court." 761 A.2d 807, 816 (Del. 2000). Following their legal studies, they returned to practice law in colonial America. Id. Further, "[t]he President of the 1792 Delaware Constitutional Convention was John Dickinson, who had studied the common law of England at the Middle Temple in London with Thomas McKean and, thus, was also a contemporary of William Blackstone." Id. at 817.

Peruta v. California , ––– U.S. ––––, 137 S.Ct. 1995, 1999, 198 L.Ed.2d 746 (2017) (denying writ of certiorari) (Thomas, J., dissenting); see also Wrenn , 864 F.3d at 657 ("[T]he [Second] Amendment's 'core lawful purpose' is self-defense, and the need for that might arise beyond as well as within the home." (quoting Heller , 554 U.S. at 630, 128 S.Ct. 2783 )). Heller suggests that the Second Amendment protects the right to bear arms outside the home. First, Heller determined that "keep arms" and "bear arms" have distinct meanings. To "bear arms" means to "wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person," suggesting that the right is exercised in transit so one may be ready at all times, and not merely at home. Drake v. Filko , 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) (quoting Heller , 554 U.S. at 584, 128 S.Ct. 2783 ) (alterations omitted) (internal quotation marks and citation omitted). Second, Heller determined that the Second Amendment protects an inherent right to self-defense. Id. (citing Heller , 554 U.S. at 599, 628, 128 S.Ct. 2783 ); see also supra note 60. Conflicts obviously can arise outside of the home, and in some circumstances, a person may be more vulnerable in a public place than at home. Third, the Heller Court's statement that "the need for defense of self, family, and property" is "most acute" in the home, 554 U.S. at 628, 128 S.Ct. 2783 (emphasis added), suggests that the need must be less acute elsewhere—but nonetheless present. Drake , 724 F.3d at 444. Fourth, the Heller Court acknowledged that "[i]t was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down."554 U.S. at 599, 128 S.Ct. 2783. Finally, "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting." Id. Hunting and serving in a militia both involve activities outside the home. Accordingly, Heller suggests that the Second Amendment right extends beyond the confines of one's home and is thus part of the "baseline" protection afforded to the citizens of Delaware; see also Wrenn , 864 F.3d at 659 ("[T]he [Second] Amendment's core generally covers carrying in public for self-defense.").

See Doe , 88 A.3d at 665.

Griffin v. State , 47 A.3d 487, 488 (Del. 2012).

11 Del. C. § 1444.

10 Del. C. § 1045(a)(8).

11 Del. C. § 1460.

See Hazout v. Tsang Mun Ting , 134 A.3d 274, 287 (Del. 2016) ("[B]lanket judicial invalidation of a statute's words should not ensue if the statute can be applied constitutionally in a wide class of cases, but might operate overbroadly in some more limited class of cases.").

See Doe , 88 A.3d at 668 ("We recognize that where the government is a proprietor or employer, it has a legitimate interest in controlling unsafe or disruptive behavior on its property. But [the State] has conceded that after McDonald , as a landlord it may not adopt a total ban of firearms."); Bailey v. Philadelphia, W. & B.R. Co. , 4 Del. 389, 389 (1846) ("The State has the right of a proprietor over navigable streams entirely within its borders; and may obstruct, or (unless where restricted by the Constitution of the United States ,) may close up, such streams at pleasure.") (emphasis added); Int'l Soc'y for Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 687, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) ( "The Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints.") (internal citations and quotation marks omitted); id. at 696, 112 S.Ct. 2701 (Kennedy, J., concurring) (joined by Blackmun, Stevens, and Souter, JJ.) ("A fundamental tenet of our Constitution is that the government is subject to constraints which private persons are not.").

Case law does not support the dissenters' novel position, not even argued by the State, that the government may "regulate firearm possession and use on its own property, like any other proprietor may." Dissent at 667 (emphasis added). We do not disagree that the government may regulate firearms. But the distinction missed throughout the dissent is that, unlike private proprietors who are given more flexibility in certain circumstances, the State must comply with the Constitution when enacting laws and regulations that interfere with the exercise of fundamental rights on its property. See supra note 107; Marsh v. Alabama , 326 U.S. 501, 506, 66 S.Ct. 276, 90 L.Ed. 265 (1946) ("Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."). Further, Light v. United States , 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911), cited in the dissent, see Dissent at 673-74, stands for the unremarkable proposition that the government may forbid cattle from grazing on its land without a permit; no fundamental constitutional rights were at issue. See id. at 537, 31 S.Ct. 485. Davis v. Massachusetts , 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71 (1897), another case relied on by the dissenters for their novel theory, has been expressly rejected by the United States Supreme Court and, thus, is no longer good law. See Jamison v. State of Tex. , 318 U.S. 413, 415–16, 63 S.Ct. 669, 87 L.Ed. 869 (1943) (noting that the argument based on Davis that the state "has the power absolutely to prohibit the use of the streets for the communication of ideas" has been "directly rejected by this Court"). In its briefs and at oral argument, the State's counsel agreed that the Regulations must comply with Section 20 and should be subject to intermediate scrutiny.

See Heller , 554 U.S. at 629, 128 S.Ct. 2783.

864 F.3d 650, 665 (D.C. Cir. 2017) (quoting Heller , 554 U.S. at 629, 128 S.Ct. 2783 ).

Id.

Id. at 655, 128 S.Ct. 2783 (quoting D.C. Code § 22–4506(a) -(b) ) (citing D.C. Code § 22–4504.01 )).

Id. at 665, 128 S.Ct. 2783.

See Ezell v. City of Chicago , 651 F.3d 684, 703 (7th Cir. 2011) ; Peruta v. Cty. of San Diego , 742 F.3d 1144, 1170 (9th Cir. 2014) ("[T]he rare law that 'destroys' the [core Second Amendment] right" necessitates "Heller -style per se invalidation."), rev'd on reh'g en banc , 824 F.3d 919 (9th Cir. 2016).

See Doe , 88 A.3d at 666–67 ("The General Assembly's careful and nuanced approach [of leaving in place a series of statutes affecting the right to keep and bear arms in Delaware] supports an intermediate-scrutiny analysis that allows a court to consider public safety and other important governmental interests.").

Id. at 657–58.

U.S. Census Bureau, District of Columbia: 2010—Population and Housing Unit Counts , U.S. Dep't of Commerce 13 (June 2012), https://www.census.gov/prod/cen2010/cph-2-10.pdf (listing the District of Columbia's total area as 68.34 square miles, which is 43,737.6 acres).

See U.S. Census Bureau, 2017 Gazetteer Files , U.S. Dep't of Commerce , https://www2.census.gov/geo/docs/maps-data/data/gazetteer/2017_Gazetteer/2017_gaz_place_10.txt (listing Wilmington's total land area as 10.90 square miles, which is 6,976 acres, and total water area as 6.04 square miles, which is 3,866 acres) [hereinafter Gazetteer].

See Binderup v. Attorney Gen. United States of Am. , 836 F.3d 336, 346 (3d Cir. 2016) (collecting cases).

614 F.3d 85 (3d Cir. 2010).

Id. at 89.

Id. For example, in Marzarella , the Third Circuit was evaluating the prohibition of possession of a firearm with a destroyed serial number under 18 U.S.C. § 922(k). Id. at 92. Given that "[t]he burden imposed by the law does not severely limit the possession of firearms," the court applied intermediate scrutiny and found the law survived because, "even if it burden[ed] protected conduct," § 922(k) reasonably served an important "law enforcement interest in enabling the tracing of weapons via their serial numbers." Id. at 95, 97–98.

Ezell , 651 F.3d at 703 ; Tyler v. Hillsdale Cty. Sheriff's Dep't , 837 F.3d 678, 690 (6th Cir. 2016) ("Given Heller 's focus on 'core' Second Amendment activity, our choice of scrutiny level should be informed by (1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on the right." (quoting United States v. Chovan , 735 F.3d 1127, 1138 (9th Cir. 2013) ) (internal quotation marks and citation omitted); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives , 700 F.3d 185, 195 (5th Cir. 2012) ("A less severe regulation—a regulation that does not encroach on the core of the Second Amendment—requires a less demanding means-ends showing.").

Heller v. District of Columbia , 670 F.3d 1244, 1257 (D.C. Cir. 2011) ("[A] regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify.").

United States v. Chester , 628 F.3d 673, 682–83 (4th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9), barring convicted felons from possessing firearms, because the Second Amendment's core protects "the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense") (emphasis in original); United States v. Skoien , 614 F.3d 638, 642 (7th Cir. 2010) (observing that "[b]oth logic and data establish a substantial relation between § 922(g)(9)" and its important governmental objective of "preventing armed mayhem," so the court "need not get more deeply into the 'levels of scrutiny' quagmire"); United States v. Reese , 627 F.3d 792, 802 (10th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(8), which bans possession of firearms by those who "based on their past behavior, are more likely to engage in domestic violence"); United States v. Mahin , 668 F.3d 119, 124 (4th Cir. 2012) (same); Tyler v. Hillsdale Cty. Sheriff's Dep't , 837 F.3d 678, 691 (6th Cir. 2016) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(4) because it "does not burden the public at large; it burdens only a narrow class of individuals who are not at the core of the Second Amendment—those previously adjudicated mentally defective or previously involuntarily committed"); Nat'l Rifle Ass'n of Am., Inc. , 700 F.3d at 205 (applying intermediate scrutiny to ban on firearm sales under 18 U.S.C. § 922(b)(1) and (c)(1) because the statutes "do [ ] not disarm an entire community, but instead prohibits commercial handgun sales to 18–to–20–year–olds—a discrete category").

See Doe , 88 A.3d at 666–67.

Id. at 667.

App. to Appellants' Opening Br. at A45 (Defs.' Opening Brief in Support of Mot. for Judgment on the Pleadings); see also id. at A40, A42 ("The Defendants have undertaken an obligation, pursuant to authority delegated by the legislature, to provide security and to punish any violators. A critical component of that public safety obligation has been the regulation of firearms, with the explicit authority and implicit blessing of the General Assembly.").

Id. at A47.

Id. at A76.

Doe , 88 A.3d at 668. The dissent repeatedly and mistakenly assigns the burden of proof to Appellants. See, e.g. , Dissent at 667, 701–02, 705–06. This is yet another example of the dissenters' refusal to follow this Court's precedent.

11 Del. C. § 1256 ; see id. § 1258(1) (defining "[c]ontraband").

11 Del. C. § 1457(a) provides:

(a) Any person who commits any of the offenses described in subsection (b) of this section) [listing independent criminal offenses such as carrying a concealed deadly weapon without a license], or any juvenile who possesses a firearm or other deadly weapon, and does so while in or on a "Safe School and Recreation Zone" shall be guilty of the crime of possession of a weapon in a Safe School and Recreation Zone.

See 9 Del. C. § 330(c) -(d) ; 22 Del. C. § 111(a) -(b).

See 9 Del. C. § 330(d)(6) ("An ordinance adopted by the county government shall not prevent the following in county buildings or police stations: ... (6) Carrying firearms and ammunition by persons who hold a valid license pursuant to either § 1441 or § 1441A of Title 11 so long as the firearm remains concealed except for inadvertent display or for self-defense or defense of others ...."); 22 Del. C. § 111(b)(6) (providing the same restriction as 9 Del. C. § 330(d)(6) for municipalities).

Redden State Forest is over 12,400 acres, see Forest Service, Delaware State Forests , Del. Dep't of Agriculture , http://dda.delaware.gov/forestry/forest.shtml, whereas the City of New Castle is 2,630.4 acres, see Gazetteer, supra note 118. To put this point into further perspective, Cape Henlopen State Park is 5,195 acres. See Cape Henlopen State Park , Del. State Parks , http://www.destateparks.com/park/cape-henlopen/history.asp. Delaware Seashore State Park (2,825 acres) is about the size of Bridgeville (2,964 acres). See Delaware Seashore State Park , Del. State Parks , http://www.destateparks.com/park/delaware-seashore/; Gazetteer, supra note 118. Brandywine Creek State Park (933 acres) is roughly triple the size of South Bethany (332 acres). See Brandywine Creek State Park , Del. State Parks , http://www.destateparks.com/park/brandywine-creek/; Gazeteer, supra . Several other parks dwarf, in size, many small towns such as the Town of Magnolia (125 acres). See Gazetteer, supra note 118.

Moore v. Madigan , 702 F.3d 933, 940 (7th Cir. 2012).

At oral argument, the State said, "[T]he State is not seeking to take anyone's guns away by banning guns in most circumstances from Parks and Forests. Rather, this ... case is about asking folks to leave their guns at home when they go to those places, with the exception of hunting season and recreational shooting." Oral Argument at 23:49, https://livestream.com/accounts/5969852/events/7714841/videos/162711371/player.

Doe , 88 A.3d at 665.

Heller , 554 U.S. at 626–27, 128 S.Ct. 2783 ("[N]othing in our opinion should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings[.]"); Doe , 88 A.3d at 668 (recognizing that firearm possession might be restricted at "a state office building, courthouse, school, college, or university").

The federal approach recognizes sensitive areas within its parks and does not protect possession of firearms in visitors' centers or rangers' offices because possession of firearms in federal buildings is prohibited by statute. See 18 U.S.C. § 930 ; cf. United States v. Bundy , 2016 WL 3156309, at *4 n.3 (D. Or. June 3, 2016) (citing Heller , 554 U.S. at 626 n.26, 128 S.Ct. 2783 ) (holding that 18 U.S.C. § 930 does not violate the Second Amendment); see also 54 U.S.C. § 104906(b) (barring the Secretary of the Interior from promulgating any regulation that restricts Second Amendment rights beyond other state and federal laws). Thus, the federal scheme appears to contemplate "sensitive areas" within National Parks—but not the entirety of the parks. Although our State is certainly free to reach different conclusions than the Federal Government on various matters, including this one, we find the State's "public safety" justification for a total ban particularly dubious on this sparse record—especially given that Congress has taken the opposite approach. Congress barred the Secretary of the Interior, whose jurisdiction includes the National Parks, from creating or enforcing any regulations that might restrict an individual's right to possess firearms to a greater extent than other federal laws or the laws of the state in which each park sits. See 54 U.S.C. § 104906(b). In passing this legislation in 2009, Congress expressly stated that its purpose was "to ensure that unelected bureaucrats and judges cannot again override the Second Amendment rights of law-abiding citizens on 83,600,000 acres of National Park System land and 90,790,000 acres of land under the jurisdiction of the United States Fish and Wildlife Service." Credit Card Accountability Responsibility and Disclosure Act of 2009, PL 111–24 § 512(a)(7), May 22, 2009, 123 Stat. 1734, 1765; 123 Stat. at 1765. It also stated that "[t]he Federal laws should make it clear that the second amendment rights of an individual" in such parks "should not be infringed." Id. at § 512(a)(8). Notably, our First State National Historical Park land, which now includes 1,100 acres in New Castle County, permits lawful firearms as a result of this legislation. See First State—Frequently Asked Questions , Nat'l Park Serv. (last updated Mar. 15, 2017), https://www.nps.gov/frst/faqs.htm.

The State confirmed that the Agencies believe that every acre of State Parks and State Forests should count as a "sensitive place" because it would be hard to draw a line between what should be "sensitive" and what should not be. Oral Argument at 47:26, https://livestream.com/accounts/5969852/events/7714841/videos/162711371/player. That argument itself seems to admit that there are some places that should not otherwise count as sensitive places. If the Federal Government is able to undertake this sort of line drawing in its parks, there is no reason why the State's Agencies cannot do the same to comply with Section 20 and the Second Amendment.

Appellants claim that, as of 2010, there were only 21 park rangers for the entirety of Delaware Park lands. Appellants' Opening Br. at 28 n.22.

7 Del. Admin. C. § 9201–7.5; App. to Appellants' Opening Br. at A372.

Doe , 88 A.3d at 668.

See, e.g. , Wrenn , 864 F.3d at 671 n.5 ("As we've noted, text and history and precedent urge that the Second Amendment requires governments to leave responsible citizens ample means for self-defense at home and outside.").

In Wrenn , the D.C. Circuit court rejected the proposition that "densely populated or urban areas" such as Washington, D.C., might count as sensitive places that would justify restricting the right to carry. Id. at 660 ; see id. at 668 (granting preliminary injunction enjoining enforcement of the so-called "good reason" law because plaintiffs were likely to succeed on the merits of their argument that the law violated the Second Amendment on its face).

Del. S.B. 45 syn., 148th Gen. Assem. (2015). See also Senate Debate on S.B. 45, 148th Gen. Assem. (May 7, 2015); House Debate on S.B. 45 at 1:15, 148th Gen. Assem. (July 1, 2015). Nor is there any evidence that the reclassification—or declassification—of penalties in 2016 was intended to ratify the Regulations implicitly. See Dissent at 701 n.243 and accompanying text. The General Assembly authorized the "declassification" of "minor violations associated with state parks" from unclassified misdemeanors to class D environmental violations so that the first of such infractions would not be reported on criminal history records and run the risk of impacting the job prospects of one-time offenders. Del. S.B. 114 syn., 148th Gen. Assem. (2015); Minutes of Sen. Nat. Res. and Envtl. Control Comm. Meeting , 148th Gen. Assem. (June 17, 2015), at 3–4. At the House Natural Resources Committee Meeting to consider the bill, the Deputy Director of DNREC responded to one member's inquiry about the types of violations that were to be declassified: "[s]he cited a number of specific examples including failure to purchase a surf fishing permit and failure to pay an entrance fee." Minutes of House Nat. Res. Comm. Meeting , 148th Gen. Assem. (June 25, 2015), at 1.

As Heller observed, "[t]he very enumeration of the right takes it out of the hands of government ... the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all." 554 U.S. at 634, 128 S.Ct. 2783.

29 Del. C. § 10141(e).

Office of the Comm'r, Del. Alcoholic Beverage Control v. Appeals Comm'n, Del. Alcoholic Beverage Control , 116 A.3d 1221, 1226 (Del. 2015) (citing Wilm. Vitamin & Cosmetic Corp. v. Tigue , 183 A.2d 731, 740 (Del. Super. Ct. 1962) ).

New Castle Cty. Council v. BC Dev. Assocs. , 567 A.2d 1271, 1275 (Del. 1989).

Atlantis I Condo. Ass'n v. Bryson , 403 A.2d 711, 713 (Del. 1979) (emphasis added).

7 Del. C. § 4701(a)(4).

29 Del. C. § 8003(7) (emphasis added).

3 Del. C. § 1011.

Id. § 101(3). Although the Regulations are also challenged on the basis of preemption, we question whether that doctrine is directly applicable here. " 'Preemption' refers to circumstances where the law of a superior sovereign takes precedence over the laws of a lesser sovereign; for example, a federal law preempting a state law or a state law preempting a city or county ordinance." A.W. Fin. Servs., S.A. v. Empire Res., Inc. , 981 A.2d 1114, 1121 (Del. 2009). Instead, this appears to be a clear case of an agency exceeding its authority by violating its directive to comply with the State's laws—which necessarily includes the Constitution.

DNREC has recognized the narrow scope of its power. See 7 Del. Admin. C. § 9201–2.1 (DNREC may "adopt only those minimal Rules and Regulations that are essential to the protection of Park resources and improvements thereto and to the safety, protection, and general welfare of the visitors and personnel on properties under its jurisdiction.").

As to our dissenting colleagues, we ignore many of their comments suggesting that any law, constitutional provision, or decision announcing or upholding the rights to keep and bear arms—including Section 20, Doe , and Heller —must be discounted as the product of a politically motivated, NRA-driven agenda. But we do pause to observe that the dissent's approach—were it to have been the law—would have troubling implications beyond this case. If, as they posit, agency regulations (such as those eviscerating fundamental Section 20 rights) are immune from any constitutional scrutiny, what principles could the Court then invoke if an agency were to ban the press from open meetings, or limit political or other speech in such areas?

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 8.04 (1977); Del. Dep't Agric., State Forest Regulations § 7.9 (2003).

3 Del. Admin. C. § 402–3.2 ("In special circumstances, events, or emergencies, the Secretary or Forestry Administrator may, when it is deemed to be in the public interest, waive a specific regulation or fee.").

See, e.g. , How to Plan a State Park Field Trip , Del. State Parks , http://www.destateparks.com/school/plan.asp (last visited Sept. 8, 2017).

See, e.g. , Summer Camps at Delaware State Parks , Del. State Parks , http://www.destateparks.com/programs/summer-camps/index.asp (last visited Sept. 8, 2017) ("Half-day camps for four– to six-year-olds are offered in summer, as well as full-day camps for six– to seventeen-year-olds. Many camps offer before and after care.... Single– or multi-day school break camps keep kids interested, active and learning when school is closed during the school year.").

See, e.g. , Activities in Delaware State Parks , Del. State Parks , http://www.destateparks.com/activities/index.asp (last visited Sept. 8, 2017) (activities offered in Parks include adventure racing, biking, mountain biking, birding, camping, disc golf, fishing, geocaching, golf, hayrides, hiking, horseback riding, hunting, music and arts, paddling, picnicking, rock climbing, rappelling, stargazing, summer camps, summer concerts, swimming, and tennis); Delaware State Forests , Del. Forest Serv. , http://dda.delaware.gov/forestry/forest.shtml (last visited Sept. 9, 2017) (activities offered in Forests include hiking, horseback riding, hunting, running, bicycling, cross-country skiing, primitive camping, picnicking, and fishing).

See, e.g. , R.E.E.C.H. at Cape Henlopen , Del. State Parks , http://www.destateparks.com/School/REECH/ (last visited Sept. 8, 2017) (overnight program for seventh and eighth graders in operation since 1998 and school programs run by the Nature Center since the 1970s).

See, e.g. , Kickball , Del. Sports League , https://www.delawaresportsleague.com/leagues/kickball (last visited Nov. 20, 2017) (adult kickball league competing at Alapocas Run State Park); Schedule Entrance Fees & User Charges , Div. Parks & Recreation 29 (2017), http://www.destateparks.com/downloads/fees/2017RatesFees Charges.pdf (setting the fee to rent football or soccer fields for youth athletics); Dewey Beach , Beach 5 Sand Soccer Series , http://www.beach5sandsoccerseries.com/locations5.php (last visited Nov. 20, 2017) ("best beach soccer tournament on the east coast" with both "youth and adult divisions"); Boys' Soccer—Varsity Schedule , Hawks Sports , https://www.hawkssports.com/page9435 (last visited Nov. 20, 2017) (high school boys' varsity soccer practice held at Cape Henlopen State Park).

Verified Compl. for Declaratory and Injunctive Relief, Bridgeville Rifle & Pistol Club v. Small , C.A. No. 11832–VCG, 2016 WL 184665 (Del. Ch. Dec. 21, 2015).

Wilm. C. (Charter) § 6 (1887).

16 Del. Laws ch. 165, § 8 (1911).

7 Del. C. § 704(d) ("No person shall shoot at, or kill any bird or animal protected by the laws of this State with any device, swivel or punt gun, or with any gun other than such as is habitually raised at arm's length and fired from the shoulder. Possession of such illegal device or gun while hunting shall be prima facie evidence of an offense under this subsection.").

Governor Michael Newbold Castle , Nat'l Governors Ass'n , https://www.nga.org/cms/michael-castle (last visited Nov. 21, 2017).

See generally Audio tape: Del. H.B. 554, 133d Gen. Assem. (1986); Audio tape: Del. S.B. 30, 134th Gen. Assem. (1987).

554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Doe v. Wilmington Hous. Auth. , 88 A.3d 654 (Del. 2014).

Wilm. C. (Charter) § 6 (1887).

36 C.F.R. § 2.2 (1938).

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations (1977).

Majority Op. 636("Appellants challenge two regulations adopted by two different State agencies that result in a near total ban of firearms in Delaware's state parks and forests.").

District of Columbia v. Heller , 554 U.S. 570, 574, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ("[The Court of Appeals for the District of Columbia Circuit] held that the Second Amendment protects an individual right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.") (citing Parker v. District of Columbia , 478 F.3d 370, 395, 399–401 (D.C. Cir. 2007) ).

Id. ; McDonald v. City of Chicago , 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

DNREC's Park Regulation only governs "the use of all applicable lands [etc.] ... administered by the Division of Parks and Recreation." Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 2.2 (2016). And DOA's Forest Regulation only governs forests. Del. Dep't Agric., State Forest Regulations § 2 (2007). The Division of Parks and Recreation within DNREC manages 23,309 acres of land, and the DOA manages 17,762 acres of land. Public Protected Lands , State of Del. , https://data.delaware.gov/Recreation/Public-Protected-Lands/whe2-8n4h/data (last visited Nov. 21, 2017). Given that Delaware comprises 1.3 million acres of land, only three percent of Delaware's acreage is managed by DNREC and DOA as Parks and Forests. Delaware Geography , State of Del. , https://delaware.gov/topics/facts/geo.shtml (last visited Nov. 21, 2017). Another 58,269 acres are managed by DNREC's Division of Fish and Wildlife, but these acres are not subject to the Park Regulation. Public Protected Lands , State of Del. , https://data.delaware.gov/Recreation/Public-Protected-Lands/whe2-8n4h/data (last visited Nov. 21, 2017).

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 8.04 (1977); Del. Dep't Agric., State Forest Regulations § 7.9 (2003); 3 Del. Admin. C. § 402–3.2.

Alcohol use is permitted at times in certain parks in areas such as campgrounds. See Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 20.6 (2016). In other areas, it is restricted. E.g. , 7 Del. Admin. C. § 9201–3.1 (limits or prohibitions are imposed "when such action is deemed necessary for property management, protection of flora, faunas and their habitats or when it is in the best interest of the health, safety, and the general welfare of the visitors"); id. § 9201–20.6 (banning alcohol in Brandywine Creek State Park, Fort Delaware State Park, Wilmington State Parks, and Fox Point State Park); id. § 9201–20.7 (banning alcohol in rented vessels); id. § 9201–20.8 (banning possession of kegs without permission); id. § 9201–21.5 (prohibiting alcohol consumption while hunting).

See, e.g. , Del. Dep't Nat. Res. & Envtl. Control, Delaware State Parks Fall Guide , 13, 35, 38 (2017), http://www.destateparks.com/programs/DSPGuide.asp.

E.g. , 74 Del. Laws ch. 360 (1994) (unlawful to allow a minor to access a firearm by "intentionally or recklessly stor[ing] or leav[ing] a loaded firearm within the reach or easy access of a minor and where the minor obtains the firearm and uses it to inflict serious physical injury or death upon himself or any other person," but the firearm being stored in a locked container is an affirmative defense).

See, e.g. , Appellants' Amend. Opening Br. 27 ("The need for self-defense certainly exists in State Parks and Forests where individuals and their families may stay and sleep in expensive cabins, or camp, hike, and hunt in the presence of undomesticated animals and, potentially, criminals.").

Correction Statistics By State: Delaware , Nat'l Inst. Corrections , https://nicic.gov/statestats/?st=de (last visited Nov. 21, 2017) ("The [2015] crime rate in Delaware is about thirteen percent higher than the national average rate.").

Table 8: Offenses Known to Law Enforcement by State by City, FBI Uniform Crime Reporting (2015), https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-8/table_8_offenses_known_to_law_enforcement_by_state_by_city_2015.xls/view (violent crime rates, defined as the number of violent crimes per 100,000 people, are: 634.8 for Los Angeles, 585.7 for New York City, and 1,707.8 for Wilmington).

Brittany Horn et al., Wilmington: Most Dangerous Place in America for Youth , News J. (Sept. 8, 2017).

Amicus Curiae Br. of Law Enforcement Legal Defense Fund et al. 18, Bridgeville Rifle & Pistol Club, Ltd. v. Small , C.A. No. S16C-06-018 THG, 2016 WL 7428412 (Del. Super. Dec. 23, 2016) ; see generally Jane Prichard , New Castle County Del. , http://www.nccde.org/1308/Jane-Prichard (last visited Nov. 6, 2017).

Doe v. Wilmington Hous. Auth. , 88 A.3d 654 (Del. 2014).

Proceedings of the Convention of the Delaware State Held at New–Castle on Tuesday the Twenty–Seventh of August , 1776 26 (2d ed. 1927).

Del. Const. , art. 24 (1776) ("All acts of Assembly in force in this state on the fifteenth day of May last (and not hereby altered, or contrary to the resolutions of Congress, or of the late House of Assembly of this state) shall so continue until altered or repealed by the Legislature of this state, unless where they are temporary, in which case they shall expire at the times respectively limited for their duration.").

1 Del. Laws ch. 4 (1700) ("That who[s]oever [s]hall threaten the per[s]on of another to wound, kill or de[s]troy him, or do him any harm in per[s]on or e[s]tate; and the per[s]on [s]o threatened [s]hall appear before a ju[s]tice of the peace, and atte[s]t, that he believes that by [s]uch threatening he is in danger to be hurt in body or e[s]tate; [s]uch per[s]on [s]o threatening as aforefaid, [s]hall be bound over, with one [s]ufficient [s]urety, to appear at the next [s]e[s][s]ions or county court, to be holden for the county where [s]uch offence was committed, to be proceeded again[s]t according to law; and, in the mean time, to be of his good behaviour, and keep peace towards all the king's [s]ubjects."); Id. ch. 93 ("That if any per[s]on within this government [s]hall challenge any other per[s]on to fight With [s]word, pi[s]tol, rapier, or any other dangerous and de[s]tructive weapon, every [s]uch per[s]on [s]o challenging, being legally convicted thereof, by bill, plaint, or information, in any Court, of Quarter Salons within this government, [s]hall forfeit and pay the [s]um of Twenty Pounds, or [s]uffer three, months impri[s]onment in the common gaol of the [s]aid county."); id. ch. 51 ("[A]ny per[s]ons, to the number of three, or upwards, meet together within this government, with clubs, [s]taves, or other hurtful weapons, to the terror of any of the peaceable people or inhabitants of the [s]ame, and shall commit, or attempt to commit, violence or injury upon the per[s]on or goods of any of the [s]aid inhabitants ... shall be adjudged and puni[s]hed according to the laws and [s]tatutes of Great Britain again[s]t riots and unlawful a[s] [s]emblies.").

Del. Const. , art. 25 (1776).

See, e.g. , State v. Huntly , 25 N.C. 418, 420–21 (1843) (citing 4 Bl. Com. 149) (internal citation omitted) (when "a man arms himself with dangerous and unusual weapons in such a manner, as will naturally cause a terror to the people," this offense "is said to have been always an offence at common law and strictly prohibited by many statutes").

Del. Const. , art. 27–28 (1776) ("To prevent any violence or force being used at the said elections, no persons shall come armed to any of them; and no muster of the militia shall be made on that day ....").

Majority Op. 644–46.

Del. Const. , art. 25 (1776).

Del. Const. (1776).

Randy J. Holland, The Delaware State Constitution 76 (2d ed. 2017) ("Article XXV of the 1776 Constitution ... provided that the common law of England would remain in force in Delaware until altered by the newly formed General Assembly.").

Compare Del. Const. (1776) with Del. Const. (1792); see also id. at 13.

Del. Const. , art. 25 (1776) (English Common Laws "shall remain in force, unless they shall be altered by a future law of the Legislature."). The following three constitutions repeated this sentiment, incorporating existing Delaware laws unless inconsistent or altered. Del. Const. , art. 8, § 10 (1776) (laws existing at the time of the constitution's enactment remained in force if "not inconsistent" with the constitution and "unless ... altered by future laws"); Del. Const. , art. 7, § 9 (1831) (same); Del. Const. , Sched. § 18 (1897) (same). In Quillen v. State , the Supreme Court noted that our law is "in general" the common law of England, "[a]part from statute." 110 A.2d 445, 450 (Del. 1955). Addressing Delaware's homicide laws, the court applied English common law because "no important changes in the law of homicide have been made by our legislature." Id. ; see also Delaware Optometric Corp. v. Sherwood , 128 A.2d 812, 816 (1957) (applying the English common law granting courts the duty of maintaining the standards of the legal profession, because there had not been "any attempt on the part of the General Assembly to control it").

Holland , supra note 42, at 76. John Dickinson was President of the 1792 Convention and no stranger to English and Pennsylvania Law, having studied in England as a contemporary of William Blackstone and having served as Governor of Pennsylvania from 1782 to 1785. Id. at 12, 34. Many provisions of the 1792 Bill of Rights were identical to the 1790 Pennsylvania Constitution, and the similarities are frequently attributed to Dickinson's influence. Id. The only rights found in the Pennsylvania Bill of Rights that Delaware did not adopt, aside from the right to bear arms, were ex post facto laws, impairment of contract laws, and free speech. Id. at 13. The General Assembly also removed the right to form a militia from the 1776 Constitution. Id.

Id. at 88. There is no evidence that the drafters rejected the right to bear arms because the English law already covered the topic—if so, there would have been no need to adopt any of the amendments that duplicated English law. On the contrary, in Claudio v. State , 585 A.2d 1278, 1296 (Del. 1991), the Supreme Court explained that Delawareans, including the drafters, "were acutely aware of the need to set forth an intention to perpetuate fundamental rights, as they had existed at common law, in unambiguous language." But the drafters did not include the right to bear arms as one of the fundamental common law rights to be perpetuated; considering and rejecting it instead.

PA. Const. , art. 1, § 21 (1790). See also PA. Declaration of Rights , cl. XIII ("That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.").

Proceedings of the House of Assembly of the Delaware State 1781–1792 and of the Constitutional Convention of 1792 785 (Claudia L. Bushman et al. eds., 1988).

Id.

Doe v. Wilmington Hous. Auth. , 88 A.3d 654, 663–64 (Del. 2014).

Id. (quoting District of Columbia v. Heller , 554 U.S. 570, 594–95, 598–99, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ).

Id.

Justice Antonin Scalia, Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation, Address at the Catholic University of America (Oct. 18, 1996) ("You will never hear me refer to original intent, because I am first of all a textualist, and secondly, an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.").

Majority Op. 650–51.

Consistent with this reality, by 1792, England had long restricted where guns could be possessed, enacting in 1328 the Statute of Northampton, which stated that no person shall "go nor ride armed by Night nor by Day in Fairs, Markets" as a means of prohibiting the private use of arms to promote individual justice and preventing armed overthrow of the government. Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review , 60 Clev. St. L. Rev. 1, 8, 13 (2012). Later laws prohibited shooting within a quarter-mile of a city or market and traveling on a highway with a loaded gun, as well as carrying small handguns within the court or a three-mile radius of it. Lois G. Schwoerer, Gun Culture in Early Modern England 59, 61 (2016) (citing 3 Statutes of the Realm 832–35 (Alexander Luders et al. eds., 1963)). And laws setting the length of a lawful handgun to no less than "one whole yarde" had the effect of preventing concealed carry. Id. at 59. These length restrictions were meant to address "little shorte handguns and little hagbuttes" responsible for "detestable and shameful murders, robberies, felonies, riot and route." Id.

Heller , 554 U.S. at 593, 128 S.Ct. 2783 (the English Bill of Rights, "long understood to be the predecessor to our Second Amendment," was "like all written English rights ... held only against the Crown, not Parliament") (internal citations omitted); id. at 665, 128 S.Ct. 2783 (Stevens, J., dissenting) (the right to bear arms in the English Bill of Rights "was only available subject to regulation by Parliament ('as allowed by Law').") (internal citation omitted).

See, e.g. , Barron v. Mayor of Baltimore , 7 Pet. 243, 248–49, 32 U.S. 243, 8 L.Ed. 672 (1833) (holding that the first eight Amendments to the Federal Constitution only applied to the federal government and did not extend to the states); Akhil R. Amar, The Bill of Rights: Creation and Reconstruction 128 (1998) (the consensus that the Bill of Rights did not "b [i]nd state governments," "epitomized by Barron v. Baltimore ," "survived well into [the twentieth] century.").

See Joseph Blocher, Firearm Localism , 132 Yale L.J. 82, 119 (2013) (citing An Act to Prevent the Discharging of Fire–Arms Within the Towns and Villages, and Other Places Within this State, and for Other Purposes, 4 Del. Laws ch. 329 (1812)); see also Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment , 25 Law & Hist. Rev. 139, 163 (2007) (citing An Act to Prevent the Discharge of Firearms Within Towns and Villages, Del. Sess. Laws 1812). The Act provided for exceptions for "days of public rejoicing," where authorization was provided by state law, or where deemed necessary. Id.

Revised StatuTes of the State of Delaware, to the Year of Our Lord One Thousand Eight Hundred and Fifty–Two 333 (Dover, W.B. Keen 1852).

42 Del. Laws ch. 180, § 2 (1939).

Wilm. C. (Charter) § 6 (1856).

19 Del. Laws ch. 266 (1891).

Farrow v. Hoffecker , 79 A. 920, 921 (Del. Super. 1906).

E.g. Davis v. Commonwealth of Mass. , 167 U.S. 43, 47, 17 S.Ct. 731, 42 L.Ed. 71 (1897), distinguished by Hague v. Comm. for Indus. Org. , 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) ("As representative of the public, [the legislature] may and does exercise control over the use which the public may make of such places, and it may and does delegate more of less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes."); Light v. United States , 220 U.S. 523, 536, 31 S.Ct. 485, 55 L.Ed. 570 (1911) ("[T]he nation is an owner, and has made Congress the principal agent to dispose of its property.... Congress is the body to which is given the power to determine the conditions upon which the public lands shall be disposed of. The government has, with respect to its own lands, the rights of an ordinary proprietor to maintain its possession and to prosecute trespassers.... All the public lands of the nation are held in trust for the people of the whole country. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine. The courts cannot compel it to set aside the lands for settlement, or to suffer them to be used for agricultural or grazing purposes, nor interfere when, in the exercise of its discretion, Congress establishes a forest reserve for what it decides to be national and public purposes. In the same way and in the exercise of the same trust it may disestablish a reserve, and devote the property to some other national and public purpose. These are rights incident to proprietorship, to say nothing of the power of the United States as a sovereign over the property belonging to it. Even a private owner would be entitled to protection against willful trespasses ....") (internal citations omitted); see also Restatement (First) of Property , § 521 (1936) ("The fact that one has that relationship to land which is called possession is sufficient in and of itself to induce the law to give him protection as having a property interest against the world at large. To receive protection as the owner of a possessory interest one must have, in general, such a physical relation to the land as to give him a certain degree of physical control over it, and an intent to so exercise such control as to exclude other members of society, in general, from any present occupation of it.").

David v. State , 89 A. 214, 214 (Del. Super. 1913) (citing Del. Rev. Code ch. 128, § 21). Furthermore, property owners owed no duty of care to trespassers. Villani v. Wilmington Hous. Auth. , 106 A.2d 211, 213 (Del. Super. 1954) ("The law is well settled that an owner or person in charge of property has no duty to a trespasser, except to refrain from injuring him intentionally, wilfully, or wantonly.").

An Act to Prevent Trespasses Being Committed on the Lands on the North East Side of Lewis–Creek, Called the Cape, in the County of Sussex, Revised StatuTes of the State of Delaware, to the Year of Our Lord One Thousand Eight Hundred and Fifty–Two 124 (Dover, W.B. Keen 1852).

Paul Dolan, Organization of Delaware State Administration 13 (1951).

Id. at 58 ("No inherent power of appointment or removal resides in the Delaware governor.") (citing Collison v. State , 39 Del. 460, 2 A.2d 97 (1938) and State v. Wise , 200 A. 418, 421 (1938) ).

Carol E. Hoffecker, Wilmington, Delaware: Portrait of an Industrial City , 1830–1910 74 (1974).

17 Del. Laws ch. 204, § 1 (1883).

Susan Mulchahey Chase, David L. Ames , & Rebecca J. Siders, Suburbanization in the Vicinity of Wilmington, Delaware , 1880–1950+/-: A Historic Context 16.

17 Del. Laws ch. 204, §§ 6, 7 (1883) (prohibiting alcohol, political gatherings, and meetings assembled through advertising). "[F]or the better preservation of the public peace and order," the General Assembly extended all laws and regulations of the City of Wilmington to the city parks. Id. § 6.

Id. (Board of Parks Commissioners can develop rules and regulations "not inconsistent with the laws and constitution of the United States or of the State of Delaware or with the ordinances of the City of Wilmington").

Wilm. C. (Charter) § 6 (1887).

Report of the Board of Park Commissioners 25 (1898). The 1898 rule remained in effect through 1910. Report of the Board of Park Commissioners 25 (1910). And the "Condensed Park Rules" published in the Board of Park Commissioners' 1912 annual report stated: "Firearms not permitted in parks." Report of the Board of Park Commissioners 10 (1912).

See, e.g. , 16 U.S.C. § 26 (in Yellowstone National Park, "[a]ll guns, traps, teams, horses, or means of transportation of every nature or description used by any person or persons within said park limits when engaged in killing, trapping, ensnaring, or capturing such wild beasts, birds, or wild animals shall be forfeited to the United States ... and may be seized by the officers in said park and held pending the prosecution of any person or persons arrested under charge of violating the provisions of this section").

36 C.F.R. § 2.2 (1938).

41 Del. Laws ch. 259, § 1 (1937) (authorizing the State Park Commission to "preserve and protect the scenic, historic, scientific, prehistoric and wildlife resources of the State, and to make them available for public use and enjoyment").

Id. §§ 2, 3.

Id. § 2 ("All state parks and other areas acquired primarily for recreational use shall, from the date of their establishment as such, come under the jurisdiction of the State Park Commission of Delaware and be closed to hunting.").

Editorial, Gunning in the Park , Journal–Every Evening (Oct. 24, 1951) (calling for an overturning of a "blanket ban on shooting in state parkland").

State Park Commission of Delaware, Rules and Regulations for Use of State Parks § 10 (1962).

56 Del. Laws ch. 407 (1968) ("All State Parks and other areas acquired primarily for recreational use shall, from the date of their establishment as such, come under the jurisdiction of the State Park Commission of Delaware and shall be closed to hunting, except in areas designated by the Commission for such purpose.").

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 9.01(b) (1969) ("The display or discharging of firearms upon the lands and waters administered by the Commission is prohibited without prior written permission, except in those areas designated for hunting and trapping by the State Park Commission.").

57 Del. Laws ch. 302, § 1 (1969) (DNREC assumed the responsibilities of various State-created commissions, including the Board of Game and Fish Commissioners, the State Park Commission, and the State Forestry Department). In this period of transition, existing agency regulations were left in place until revoked or changed by DNREC. Id. In 1970, references to the State Park Commission and references to the State Forestry Department were replaced with references to DNREC. 57 Del. Laws ch. 739 (1970).

25 Del. Laws ch. 71, § 1 (1909).

Id. § 6 (the State Forester and forest wardens had the duty to "enforce all forest laws of this State; to protect all public lands or State forest reserves and see that all rules, regulations and laws are enforced"); see generally W.D. Sterrett, Report on Forest Conditions in Delaware and a Forest Policy for the State 47 (1907) (suggesting that the General Assembly create a State Forestry Department, acquire non-productive land to be used as Forests, and protect trees with aesthetic and commercial value, in recognition of the fact that the concentrated effort necessary "to put an end to forest destruction, lies within the State—its government and private land owners."). Responsibility for the conservation, management, and promulgation of rules and regulations for Forests moved to the State Board of Agriculture in 1921, the State Forestry Department in 1927, and DNREC's Division of Parks, Recreation, and Forestry in 1969, before moving to DOA in 1974. 32 Del. Laws ch. 39, § 1 (1921); 35 Del. Laws ch. 50, §§ 1, 4 (1927) ; 57 Del. Laws ch. 302, § 1 (1969); 59 Del. Laws ch. 372, § 1 (1974).

16 Del. Laws ch. 165, § 8 (1911).

16 Del. Laws ch. 548, § 1 (1881); State v. Costen , 39 A. 456, 456 (1897).

16 Del. Laws ch. 548, § 3 (1881). This prohibition, "a most excellent and necessary one," recognized that "the reckless use of firearms is entirely too common with very many people" and

was enacted for the two-fold purpose of preventing loss of life by the acts of irresponsible people who are prone to jest with deadly weapons, and to punish others who endanger life by the use of such weapons, not jestingly but seriously, yet in a manner to escape indictment for assault with intent to commit murder.

Eligibility to be licensed required the applicant to: (1) submit the certificate of five persons within the same election district attesting to the applicant's age, sobriety, and good moral character, reputation for peace and good order in the community, and the necessity of carrying a concealed deadly weapon; (2) publish the applicant's name and address in a daily newspaper before the application was to be considered; and (3) obtain approval by the Court of General Sessions, after an evidentiary hearing. 26 Del. Laws ch. 275 (1911).

Id. (citing State v. Ingram , 26 Del. 439, 84 A. 1027 (Ct. Gen. Sess. 1912) ).

State v. Iannucci , 55 A. 336, 336 (Ct. Gen. Sess. 1903). This understanding of the right to use a firearm in self-defense was consistent with the development of self-defense as a justification:

Where one is assaulted upon a sudden affray and reasonably believes himself to be in imminent danger of being killed or of receiving great bodily harm, he may use a deadly weapon in self-defense. But in exercising such right of defense, he must be closely pressed, and must have retreated as far as he conveniently and safely could, in good faith, with the honest intent to avoid the violence and peril of the assault upon him.

16 Del. Laws ch. 155, §§ 1, 8 (1879) ("[T]ramps," i.e., "[a]ny person without a home in the town or hundred in which he may be found wandering about without employment, and the regular and visible means of living," were guilty of a misdemeanor if found carrying a firearm.).

26 Del. Laws ch. 164 (1911) (any "unnaturalized foreigner" hunting while in possession of a firearm without the required hunting license was guilty of a misdemeanor); 30 Del. Laws ch. 176, § 7 (1919) (minors under the age of fifteen prohibited from hunting anywhere in the State with any kind of rifle or shotgun unless accompanied by an adult who is lawfully hunting).

56 Del. Laws ch. 384, § 1 (1968).

17 Del. Laws ch. 507, § 5 (1885); 16 Del. Laws ch. 165, § 8 (1911).

41 Del. Laws ch. 212 (1937).

The two earliest cases considering whether the first eight Amendments applied to the states found that they did not. Barron v. Mayor of Baltimore , 7 Pet. 243, 248–49, 32 U.S. 243, 8 L.Ed. 672 (1833) ; Slaughter–House Cases , 83 U.S. (16 Wall.) 36, 79, 21 L.Ed. 394 (1872).

United States v. Cruikshank , 92 U.S. 542, 552, 23 L.Ed. 588 (1875).

Presser v. Illinois , 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886).

153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894).

307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) ( "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.").

See, e.g. , Majority Op. 645–46, 650–52. In particular, the Majority cites to Article VII of the 1689 English Bill of Rights, which provided that Protestant subjects: "may have Arms for their Defence suitable to their Conditions, and as allowed by Law ." Id. at 645–46 (citing District of Columbia v. Heller , 554 U.S. 570, 593, 128 S.Ct. 2783, 171 L.Ed.2d 637 ; 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441) (emphasis added). But support in the English tradition for a broad unwritten state constitutional right to bear arms is inconsistent with that Article's explicit limitation of the right as existing only "as allowed by law." Peter Buck Feller & Karl L. Gotting, The Second Amendment, A Second Look , 61 Nw. U. L. Rev. 46, 48 (1966).

See supra note 55.

Seizure of Arms Act, 1 Geo. 4, ch. 2 (1820) (Eng.).

The Gun License Act, 33 & 34 Vict., ch. 57 (1870) (Eng.).

Pistols Act, 3 Edw. 7, ch. 18 (1903) (Eng.) (prohibiting drunk persons and those "not of sound mind" from owning guns).

Firearms Act, 10 & 11 Geo. 5, ch. 43, s. 1, 1(2), 1(2)(a) (1920) (Eng.) (firearm certificates were only to be granted for "good reason[s]" and never to anyone "of intemperate habits or unsound mind" or "for any reason unfitted to be trusted with firearms").

See Firearms (Amend.) Act of 1997, ch. 27, s. 5(1), 5(3), 5(A), 12(2) (Eng.) ("[A]ny firearm which either has a barrel less than 30 centimeters in length or is less than 60 centimeters in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signaling apparatus" is a "weapon[ ] subject to general prohibition." It is a crime to possess such a weapon without authority "given in writing by the Secretary of State (in or as in regards England and Wales), or the Scottish Ministers (in or as regards Scotland)" unless the gun is being used in a theatrical performance approved by the Defence Council to showcase the prohibited weapon, or the gun is being "kept or exhibited as a part of a collection."); HM Government, Ending Gang and Youth Violence: A Cross–Government Report 45 (2011) ("The last 20 years have seen a significant toughening of the laws on weapons possession and supply including a ban on all hand-guns ...."); Firearms (Amend.) Act of 1988, ch. 45 (Eng.) (banning "semi-automatic and pump-action rifles; weapons which fire explosive ammunition; short shotguns with magazines; and elevated pump-action and self-loading rifles").

See, e.g. , Firearms (Amend.) Act of 1988, ch. 45 (Eng.) (mandating registration for shotguns, "which were required to be kept in secure storage").

An applicant must demonstrate they use their firearm on a "regular, legitimate basis for work, sport or leisure (including collections and research)" to be granted a firearm certificate. Firearms (Amend.) Act of 1997, ch. 27, s. 27(b), s. 28(1A)(b) (Eng.). The chief of police may subject any certificate to individualized restrictions. Id. s. 27(1A)(2), s. 28(1C)(b).

For example, in a city with less than one percent of the United Kingdom's population, Wilmington has already this year suffered forty-eight percent of the homicides by firearm that entire country expects in any given year. Adam Duvernay, Total Shooting Victims in Wilmington Surpasses 2013 , News J. (Sept. 25, 2017) (twenty-five people in Wilmington had been killed by gunfire as of September 25, 2017); Interactive Maps and Charts of Armed Violence Indicators , Small Arms Survey , http://www.smallarmssurvey.org/tools/interactive-map-charts-on-armed-violence.html (last visited Nov. 21, 2017) (on average, fifty-two people in the United Kingdom died of homicide by firearm per year between 2010–2015); Population, Total , World Bank , https://data.worldbank.org/indicator/SP.POP.TOTL (last visited Nov. 21, 2017) (sixty-five million people live in the United Kingdom); Quick Facts: Wilmington City, Delaware , U.S. Census Bureau , https://www.census.gov/quickfacts/fact/table/wilmingtoncitydelaware,DE/PST045216 (last visited Nov. 21, 2017) (about 71,000 people live in the city of Wilmington).

Homicide by firearm is thirty-one times more common in the United States than in England and Wales. Homicide Statistics: Homicide by Firearm , United Nations Off. on Drugs & Crime , https://www.unodc.org/documents/data-and-analysis/statistics/Homicide/Homicides_by_firearms.xls (last visited Nov. 21, 2017) (the United States' homicide by firearm rate per 100,000 people in 2009 was 3.3, compared to 0.1 in England and Wales). In fact, being killed by a gun in England is about as likely as dying of contact with agricultural machinery here in the United States. Kevin Quealy & Margot Sanger–Katz, Comparing Gun Deaths by Country: The U.S. Is in a Different World , N.Y. Times (June 13, 2016).

See, e.g. , Research and Surveys: Common pheasant Phasianus colchicus, Game & Wildlife Conservation Tr. , https://www.gwct.org.uk/research/long-term-monitoring/national-gamebag-census/bird-bags-summary-trends/common-pheasant/ (last visited Nov. 21, 2017) (the number of pheasants shot during recorded hunting activities in the United Kingdom was two and a half times greater in 2010 than in 1961). At the iconic Rules, its "Famous Grouse" is touted with the fair warning that "game birds may contain lead shot." Menu , Rules , http://www.rules.co.uk/wp-content/uploads/2013/11/Menu-food.pdf (last visited Nov. 21, 2017).

See supra notes 48–55 and accompanying text.

See supra notes 102–103 and accompanying text.

See supra Part IV, Sections A–D.

Id.

See supra notes 16–17, 82.

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 8.04 (1977).

Id. § 10.01(f).

Del. Dep't Agric., Forest Rules and Regulations § 8 (1979).

56 Del. Laws ch. 85, § 1 (1967).

For example, DNREC set the hours parks were open to the public, limited the number of consecutive days people could camp in state parks, prohibited alcohol within organized youth group camps, and charged an entrance fee for certain parks, as permitted by the General Assembly. Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations §§ 1, 2.16, 3.04(a), 11 (1977). And DOA's regulation of Forests mirrored DNREC's regulation of Parks. DOA prohibited the building of a fire except in certain designated areas, restricted camping to one day except with a written permit, and prohibited the cutting of its standing trees and shrubs. Del. Dep't Agric., Forest Rules and Regulations §§ 1, 2 (1979).

60 Del. Laws ch. 585 (1976) (codified at 29 Del C. § 6441(d)); Baker v. Del. Dep't of Nat. Res. & Envtl. Control , 2015 WL 5971784, at *12 (Del. Super. Oct. 15, 2015) (citing 29 Del. C. § 10161(b) ) ("DNREC, as an agency, is subject to subchapter I (Policy and Definitions, consisting of §§ 10101 and 10102 of Title 29) and subchapter II (Agency Regulations, consisting of §§ 10111–19 of Title 29) of the APA as well as § 10141 (review of regulations), § 10144 (stay pending review) and § 10145 (commencement of review). If DNREC promulgates regulations, those regulations must comply with the APA.").

We also note that, in the time period between 1977 and 1987, the General Assembly continued to restrict the possession and use of firearms in the State. See, e.g. , 61 Del. Laws ch. 372, § 1 (1978) (prohibiting the discharge of a firearm within fifteen yards of a public road or right-of-way unless it is a road or right-of-way within an area controlled by the agencies charged with management of certain state or federal land and designated as open to hunting or trapping); 64 Del. Laws ch. 373, § 1 (1984) (same); id. ch. 653, § 1 (establishing Safety Zones and making it unlawful for any "person, except the owner or occupant, [to] discharge a firearm within 100 yards of an occupied dwelling, house or residence or any barn, stable or any other building used in connection therewith, while hunting or trapping of wild birds [or] wild animals of any kind."); id. ("[I]t shall be unlawful to shoot at any wild bird or wild animal while it is within such safety zone without the specific advance permission of the owner or tenant.").

36 C.F.R. § 2.2 (1938).

Although the Department of the Interior in 1983 established limited exceptions permitting travelers and those living within national parks to carry unloaded arms, it did so not because of a recognition that its existing policy violated an individual right to bear arms, but rather, because enforcing the prohibition was infeasible from an administrative perspective, and required horseback riders and those traveling on foot to secure a permit to carry a firearm. Id.

Kent Cty. C. § 168–35 (1981); see also Kent County Dep't Cmty. Servs., General Park Rules § 1 (2013), http://www.co.kent.de.us/media/766210/General-park-rules-2013.pdf.

United States v. Miller , 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); see also Lewis v. United States , 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) ("These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties."); United States v. Casson , 288 F.Supp. 86, 88 (D. Del. 1968) ("In the absence of some showing that the possession or use of the shotgun bears some reasonable relationship to the preservation or efficiency of a well regulated Militia, the Second Amendment does not guarantee defendant the right to keep and bear such a firearm.").

James Podgers, First Legal Shots Fired over Handgun Ordinance , 67 Am. Bar Ass'n J. 969, 969 (1981) (NRA general counsel James Featherstone said that "Despite Miller , the Second Amendment does protect the right to possess handguns."); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 224–25 (2008) ( "Even though the number of law review articles on the right to bear arms increased in the 1980s, at least nineteen of the twenty-seven articles written between 1970 and 1989 espousing the view that the Second Amendment protected an individual right to bear arms were 'written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author's footnote.' ") (quoting Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer , in The Second Amendment in Law and History 1, 4 (Carl T. Bogus ed., 2000)).

Patrick J. Charles, The Faces of the Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters , 64 Clev. St. L. Rev. 373, 471 (2016) (citing David Conover, To Keep and Bear Arms , Am. Rifleman , Sept. 1985, at 40–41); Darrell A.H. Miller, Institutions and the Second Amendment , 66 Duke L.J. 69, 115–16 (2016) ("[T]he NRA has translated its vision of the Second Amendment into gun-rights legislation and 'strict scrutiny' protections in state constitutions.").

In the late 1980s, the NRA switched its attention from the national stage to state firearm regulations, lobbying simultaneously for state constitutional amendments and local preemption laws. Harry S. Wilson, Gun Politics in America: Historical and Modern Documents in Context 408 (2016) ("[T]he NRA became more active in state politics when it was evident that the national-level pendulum might be swinging toward gun control advocates."). The NRA argues preemption laws are necessary because varying local laws create confusion. Firearm Preemption Laws , NRA, https://www.nraila.org/issues/preemption-laws/ (last visited Nov. 20, 2017). But most believe the true reason behind the preemption push was the NRA's desire to "avoid having to fight the issue of gun control in thousands of city and town halls across the country." William S. Harwood, Gun Control: State Versus Federal Regulation of Firearms , 11 Me. Pol'y Rev. 58, 65 (2002). The NRA succeeded on its preemption campaign, increasing the number of states with laws preempting local regulation from seven to forty-five. Joe Palazzolo, Gun Rights Groups Target Local Rules , Wall St. J. (Feb. 6, 2013 9:23 AM), https://blogs.wsj.com/law/2013/02/06/how-gun-rights-groups-suppressed-local-firearm-regulations/; Rebecca Leber, City Falls to NRA Campaign to Repeal Local Laws Preventing Gun Violence , ThinkProgress (June 3, 2013, 9:20 PM), https://thinkprogress.org/city-falls-to-nra-campaign-to-repeal-local-laws preventing-gun-violence-83ed9f761f66.

Nev. Const. , art. I, § 11 (1) (1982) ("Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes."); N.H. Const. , pt. 1, art. 2–a (1982) ("All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."); N.D. Const. , art. I, § 1 (1984) ("All individuals ... have certain inalienable rights, among which are ... to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes."); Utah Const. , art. I, § 6 (1984) ("The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms."); N.M. Const. , art. II, § 6 (1986) ("No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms."); W. Va. Const. , art. III, § 22 (1986) ( "A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use."). Maine adopted its version, which looks like the 1776 Pennsylvania Constitution's, in November 1987. Me. Const. , art. I, § 16 (1987) ( "Every citizen has a right to keep and bear arms and this right shall never be questioned.").

Audio tape: Del. S.B. 30, 134th Gen. Assem. 19:15 (1987); Appellants' Amend. Opening Br. 2 n.4 ("Plaintiff Below/Appellant Delaware State Sportsmen's Association has been Delaware's affiliate of the National Rifle Association since 1968."); see also Patrick J. Charles, supra note 133, at 433–75 (2016) (describing the NRA's campaign to amend state constitutions); J. Warren Cassidy, United We Stand , Am. Rifleman , Feb. 1989, at 7 ("Through preemption bills, right to keep and bear arms amendments in the state constitutions, and the reform of onerous permit to carry concealed laws, we are attempting, with good success, to restore citizens' Second Amendment rights wherever these have been abridged.").

Del. H.B. 66, 133d Gen. Assem. (1985) (codified at 22 Del. C. § 835(a)(6) and 9 Del. C. § 330(c) ).

Id.

Del. Const. , art. 16, § 1.

Id.

Id.

See supra note 134.

Del. H.B. 66, 133d Gen. Assem. (1985) (codified at 22 Del. C. § 835(a)(6) and 9 Del. C. § 330(c) ).

Eileen Gilligan, Ban on Local Gun Laws Sent to Governor , Morning News (Wilmington, Del.), May 28, 1986, at 13 (describing legislation proposed by Wilmington City Councilwoman Loretta Walsh that she pushed "after she claimed to have found a loophole in a similar law that prohibits municipalities from banning guns through charter changes").

Del. H.B. 430, 133d Gen. Assem. (1986) (codified at 22 Del. C. § 838).

Del. H.B. 554 syn., 133d Gen. Assem. (1986) (codified at 22 Del. C. § 838).

Del. Const. , art. I, § 20 (1987).

Audio tape: Del. H.B. 554, 133d Gen. Assem. 2:00 (1986).

Id. at 2:38.

Id. at 3:55.

Under the Doctrine of Selective Incorporation, certain rights in the Bill of Rights are made applicable to the states "because a denial of them would be a denial of Due Process of law." Malloy v. Hogan , 378 U.S. 1, 5, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ; see also Thomas J. Walsh, The Limits and Possibilities of Gun Control , 23 Cap. U. L. Rev. 639, 656–57 (1994).

Audio tape: Del. S.B. 30, 134th Gen. Assem. 16:30 (1987); see id. at 19:30 ("[I]n order to confirm what most Delawareans believe, we have proposed this [Amendment] ... to protect our right to keep and bear arms as an individual matter.").

See Quilici v. Vill. of Morton Grove , 695 F.2d 261, 271 (7th Cir. 1982).

Tom Greer, NRA Pushes Amendment , Morning News (Wilmington, Del.), Apr. 15, 1987, at 27 (emphasis added).

Audio tape: Del. S.B. 30, 134th Gen. Assem. 19:30 (1987).

Id. at 44:50.

Senator McDowell questioned Thompson about whether any jurisdiction in the State of Delaware had banned the ownership of weapons, and Thompson conceded that none had. Id. at 29:45.

Id. at 35:15.

Id. at 16:25.

Greer, supra note 154, at 27.

66 Del. Laws ch. 10 (1987). Our friends in the Majority accuse us of "cherrypicking" statements by legislators in the debates. Majority Op. 649, n.85. But, they cite to nothing in the debates to support the notion that Section 20 was intended to be broader than the Second Amendment, because there is no mention of their interpretation. Doe 's interpretation is also inconsistent with how other states have interpreted the same or similar constitutional provisions. See infra note 236–239 and accompanying text.

See generally , Alonzo H. Garcelon, The President's Column , Am. Rifleman , Dec. 1985, at 47 ("Thanks to the efforts of the ILA [the NRA Institute for Legislative Action] and you, the NRA member, anti-gun proposals at all levels of government have been beaten back while laws strengthening the right to keep and bear arms have been enacted across the nation. Consider that 24 states now have firearm pre-emption laws that will prevent local towns and city governments from enacting handgun bans and other anti-gun laws; fourteen states have enacted hunter harassment laws; and 40 states have constitutional amendments to keep and bear arms. All of this is a direct result of efforts by ILA.").

See, e.g. , Mission , Del. State Sportsmen's Ass'n , http://dssa.us/mission/ (last visited Nov. 21, 2017) ("For over 20 years, the DSSA has stood ever vigilant in defense of the right to keep and bear arms. Through our efforts, with the support of the National Rifle Association, the rights of the people of[ ] Delaware have not been compromised."); Appellants' Amend. Opening Br. 2 n.4 ("Plaintiff Below/Appellant Delaware State Sportsmen's Association has been Delaware's affiliate of the National Rifle Association since 1968.") (internal citations omitted). For an example of the DSSA's continued involvement in the Delaware legislative process, see Governor Jack Markell Unveils Gun Control Plan to Leave You Defenseless , Del. State Sportsmen's Ass'n (Jan. 16, 2013), http://dssa.us/2013/01/16/governor-jack-markell-unveils-gun-control-planto-leave-you-defenseless/ (urging DSSA members to "[c]all and e-mail IMMEDIATELY and make [their] voice[s] be heard on" Governor Markell's "broad gun control plans" to ban semi– automatic firearms, restrict magazine capacity, mandate reporting of lost or stolen guns, require background checks for private firearm sales, and create a "gun free" zone around schools).

67 Del. Laws ch. 41 (1989).

Application of McIntyre , 552 A.2d 500, 501 n.1 (Del. Super. 1988) (reviewing the renewal of concealed carry permit and rejecting the Petitioner's argument that her position is enhanced by the adoption of Section 20, stating: "The Court notes that 'the right to keep and bear arms' does not of necessity require that such arms may be kept concealed.").

Application of Wolstenholme , No. 92M-04-006, 1992 WL 207245, at *1 (Del. Super. Aug. 20, 1992).

Id.

Smith v. State , 882 A.2d 762, 2005 WL 2149410 (Del. Aug. 16, 2005) (TABLE).

72 Del. Laws ch. 329 (1990).

Short v. State , 586 A.2d 1203, 1991 WL 12101, at *1 (Del. Jan. 14, 1991) (TABLE) ("Courts throughout the country in considering statutes similar to 11 [Del. C. ] § 1448 have uniformly ruled that the right to bear arms as guaranteed in various state constitutions and the federal constitution may be subject to reasonable restrictions for the public safety ....").

69 Del. Laws ch. 360 (1994). A person violated the statute if by "intentionally or recklessly stor[ing] or leav[ing] a loaded firearm within the reach or easy access of a minor and where the minor obtains the firearm and uses it to inflict serious physical injury or death upon himself or any other person," but could assert an affirmative defense when, among other possible factors, the firearm was stored in a locked container. Id.

70 Del. Laws ch. 159 (1995).

See Carson v. Springfield Coll. , C.A. No. 05C–10–002–PLA., 2006 WL 2242732, at *3 (Del. Super. Aug. 4, 2006) ("[A] fundamental element of private property is the right to regulate access to it.").

See Richard Epstein, Takings: Private Property and the Power of Eminent Domain 63 (1985) (stating that the "notion of exclusive possession" is "implicit in the basic conception of private property"); see also, e.g. , Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."); Dolan v. City of Tigard , 512 U.S. 374, 393, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (quoting Kaiser Aetna v. United States , 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) ) ("[T]his right to exclude others is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.' ").

See United States v. Curtis–Nevada Mines, Inc. , 611 F.2d 1277, 1283 (9th Cir. 1990) ("Historically the United States has managed the lands within the public domain as fee owner and trustee for the people of the United States. Also, in the management of public lands, the United States has historically allowed the general public to use the public domain for recreation and other purposes, and often without a specific, formal permit. Such access has been described as an implied license."); Armuchee Alliance v. King , 922 F.Supp. 1541, 1548–49 (N.D. Ga. 1996) (noting that "[b]ecause Congress's power over public lands 'is without limitations,' any right to use and occupy national forests is strictly a statutory benefit" and that there is no liberty or property interest in using or occupying the forest, but rather, use of the forest "is a privilege, not a right"); United States v. Patzer , 15 F.3d 934, 941 (10th Cir. 1993) (holding that a two-year prohibition on recreational activity on any U.S. Forest Land or national park in Wyoming or the United States is reasonable for a conviction of engaging in a commercial service, outfitting, and filming of movies on U.S. Forest Land without the required special use authorization).

New Castle Cty. C. § 24.01.014.

See infra notes 252–258.

See, e.g. , School Tours , New Castle County Del. , http://de-newcastlecounty.civicplus.com/911/School-Tours (last visited Nov. 15, 2017) (school field trips hosted at Rockwood Park, a historic nineteenth century estate); Rockwood History , New Castle County Del. , http://de-newcastlecounty.civicplus.com/1198/Rockwood-History (last visited Nov. 15, 2017) ("The mission of the site—owned, maintained and operated by New Castle County—is to serve residents and visitors through education and recreation, while preserving and maintaining the historic 19th Century mansion, its collections and grounds. The county advances that mission by presenting an ongoing variety of youth– and family-friendly public programming in the historic buildings and on the grounds, as well as hosting signature annual events and offering facility rental. The county is committed to [the] past owners' intention for the unique site to benefit the public."); Carousel Park Equestrian Center , New Castle County Del. , http://de-newcastlecounty.civicplus.com/425/Carousel-Park-Equestrian-Center (last visited Nov. 15, 2017); About Us , New Castle County Del. , http://de-newcastlecounty.civicplus.com/966/About-Us (last visited Nov. 15, 2017) (riding lessons available at a 217–acre equestrian center).

Delcastle Recreational Facility , New Castle County Del. , http://www.nccde.org/Facilities/Facility/Details/Delcastle-Recreational-Park-66 (last visited Nov. 15, 2017). To take one example, soccer leagues play at Banning Regional Park, Bonsall Park, Delcastle Recreational Park, Hann Park, Rogers Manor Park, River Road Park, Talley Day Park, and Weiss Park. Soccer Field Directions and Comments , New Castle County Dep't Cmty. Servs. , http://de-newcastlecounty.civicplus.com/DocumentCenter/Home/View/1540 (last visited Nov. 20, 2017); Facilities , New Castle County Del., http://www.nccde.org/Facilities?clear=False (last visited Nov. 20, 2017).

Tara Lynn Johnson, Sleep Under the Stars at Carousel's Weekend Camporee , News J. (Wilmington, Del.), May 12, 2000 (Take the Kids), at 16 (describing events offered at the inaugural Spring Camporee).

News Release, New Castle County Exec. Office, County Executive Invites Public to Fall Sleep Under the Stars at Carousel Park (Oct. 21, 2015) ("At last year's Fall Sleep Under the Stars over 5,000 people including families, community and youth groups such as Boy and Girl Scout Troops enjoyed the crafts, entertainment and activities in the great outdoors."); Fall Sleep Under the Stars: Carousel Park Equestrian Center , In Wilmington , http://inwilmingtonde.com/events/fall-sleep-under-stars-0 (last visited Nov. 15, 2017).

New Castle Cty. C. § 24.01.014.

E.g. , Christina River Riparian Corridor Guide , New Castle County Del. , http://www.nccde.org/DocumentCenter/View/19167 (last visited Nov. 15, 2017) ("No one shall carry any knife having a blade three (3) inches or longer on the grounds. The possession or discharge of BB guns, air guns, firearms, bows and arrows, or any lethal weapon is prohibited."); Iron Hill Park Trail Guide , New Castle County Del. , http://www.nccde.org/DocumentCenter/View/1250 (last visited Nov. 15, 2017) (same).

E.g. , Fall Sleep Under the Stars: Carousel Park Equestrian Center , In Wilmington , http://inwilmingtonde.com/events/fall-sleep-under-stars-0 (last visited Nov. 15, 2017) ("Our goal is to make Sleep Under the Stars a safe and fun event for everyone. To make this possible we ask that you follow these simple rules.... The possession of weapons and firearms are prohibited in New Castle County parks.").

Kent Cty. C. § 168–35 (1981); see also General Park Rules , Kent County Dep't Cmty. Servs. , http://www.co.kent.de.us/media/766210/General-park-rules-2013.pdf (last visited Nov. 20, 2017). Sussex County opened its first county park, Woodland Park, in 2016. Sussex County Comprehensive Plan: County Planning and Zoning Commission , Sussex County 17 (June 16, 2017), https://sussexplan.com/app/uploads/2017/06/Sussex-County-Comp-Plan-PZ-workshop-616-17.pdf. The other parks in Sussex County are state-owned Parks subject to the Regulations. State Parks , Sussex County , https://sussexcountyde.gov/state-parks (last visited Nov. 20, 2017).

See supra note 143.

District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Heller , 554 U.S. at 574–75, 128 S.Ct. 2783.

Id. at 574–75, 128 S.Ct. 2783.

Id. at 575–76, 128 S.Ct. 2783.

Id. at 595, 128 S.Ct. 2783.

See United States v. Miller , 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (holding that the Second Amendment only protected the right to raise a militia); Lewis v. United States , 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (same).

See, e.g. , Cody v. United States , 460 F.2d 34, 37 (8th Cir. 1972) (the guarantee of the Second Amendment extends only to use related to the preservation of the militia); United States v. Johnson , 497 F.2d 548, 550 (4th Cir. 1974) (the Second Amendment provides only a collective right to bear arms that is related to the preservation of the militia); United States v. Warin , 530 F.2d 103, 106 (6th Cir. 1976) (the Second Amendment applies only to the states' right to maintain a militia).

Heller , 554 U.S. at 635, 128 S.Ct. 2783.

Id. at 599, 128 S.Ct. 2783 (emphasis added). The bare Heller Majority had no doubt that the Second Amendment that referred in plain terms to having the purpose of protecting from federal overreaching the ability of states to raise militias was understood by "most Americans" to be more important as a federal right to be free from state regulation of gun possession and use for personal self-defense. Id. To us, this makes little sense as a textual-focused approach. That is even more the case when the founding generation understood that the English tradition was that any right to bear arms for personal self-defense was subject to Parliamentary restriction. Thus, it made sense for the founding generation to protect the states from federal action impeding them from raising militias, while leaving to state legislatures, who the founders assumed would be closer to and more representative of state-level sentiment, the authority, as Parliament had, to regulate possession and use of firearms at the state level. We admit, of course, that whenever law-trained judges, including ourselves, use history in a time-pressured way, based on partisan input, to resolve cases, there is a serious risk of error. But that is why doubts should be resolved in favor of judicial restraint. The most dangerous course of action would seem to be when judges far distant from events discern that they now know much better about what text meant than the preceding generations, who were, by conventional standards of epistemology, closer in time and thus better positioned to understand what the prevailing meaning of the text was when it was adopted. Heller is odd in this and other respects, such as its decision to give the militia purpose no weight and to imply that states and the federal government may ban the sale and ownership of the weapons that would be most useful to the member of any twenty-first century militia (such as a national guard unit). Heller , 554 U.S. at 599, 128 S.Ct. 2783. In other words, the Heller Majority, in the name of originalism, has denuded the text of the Second Amendment of any meaning as to its most evident meaning, while employing its own judgment about evolving social policy to make the Second Amendment a tool to restrict state legislatures from playing their historical role in regulating gun possession and use.

Id. at 628–29, 128 S.Ct. 2783 (internal citations omitted).

Id. at 626–27, 128 S.Ct. 2783 (emphasis added).

See Barron v. Mayor of Baltimore , 7 Pet. 243, 248–49, 32 U.S. 243, 8 L.Ed. 672 (1833) (holding that the first eight Amendments to the Federal Constitution only applied to the federal government and did not extend to the states); Slaughter–House Cases , 83 U.S. 16 Wall. 36, 79, 21 L.Ed. 394 (1872) (Second Amendment does not restrict the states); United States v. Cruikshank , 92 U.S. 542, 552, 23 L.Ed. 588 (1875) (same).

McDonald v. City of Chicago , 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Id.

Id. at 767–68, 130 S.Ct. 3020.

Id. at 778, 130 S.Ct. 3020.

Id. at 786, 130 S.Ct. 3020 (quoting Heller , 554 U.S. at 626–27, 128 S.Ct. 2783 ).

We acknowledge that, in 2008, the Department of the Interior revised its rules on the carrying of firearms in national parks to reflect state laws authorizing the possession of loaded concealed firearms, allowing possession for individuals with authority to do so from the state in which the national park is located. But this change to the federal national park regulations was prompted by a desire to "make every effort to give the greatest respect to the democratic judgments of State legislatures with respect to concealed firearms," not Heller . 73 Fed. Reg. 74966–02 (Dec. 10, 2008) (to be codified at 36 C.F.R. pt. 2 and 50 C.F.R. pt. 27) ("During the pendency of our public comment period, the Supreme Court announced its decision in District of Columbia v. Heller , which held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a government militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. Several individuals, including two members of Congress, wrote the Department suggesting that the Court's decision in this case is of significance to the proposal, and that the Department should extend the public comment period to allow citizens to comment on the potential impacts of this case on the proposed rule. In our view, the Supreme Court's decision in Heller does not directly impact our proposal to revise existing Federal regulations to more closely conform our regulations to appropriate state laws.").

Doe v. Wilmington Hous. Auth. , 88 A.3d 654 (Del. 2014).

Id. at 659.

Doe v. Wilmington Hous. Auth. , 880 F.Supp.2d 513, 528 (D. Del. 2012).

Id. at 528.

Doe v. Wilmington Hous. Auth. , 88 A.3d at 659.

Doe v. Wilmington Hous. Auth. , 880 F.Supp.2d at 531.

Id. at 518.

Id. at 539 (citing Novosel v. Nationwide Ins. Co ., 721 F.2d 894, 897 (3d Cir. 1983) ).

Id. at 535.

Id.
at 536–37.

Id. at 537–38.

Id.

Doe v. Wilmington Hous. Auth. , 88 A.3d 654, 661 (Del. 2014).

Doe v. Wilmington Hous. Auth. , 568 Fed.Appx. 128, 128–29 (3d Cir. 2014).

Doe v. Wilmington Hous. Auth. , 88 A.3d at 667.

Id. at 668.

Id.

Id. at 668–69.

Id. at 665 n.47.

Id. at 665.

Id. at 661.

Id. at 668.

Id.

Id.

Id. at 667.

Id. at 668 (acknowledging that the common areas, described as the laundry rooms and TV rooms, are similar to the spaces within a private residence, but not considering the effect of the lease provisions on spaces where children might gather, such as the computer rooms where residents' children complete their homework).

Heller , 554 U.S. 570, 628–29, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (internal citations omitted).

Doe v. Wilmington Hous. Auth. , 88 A.3d at 667–68 ("In Griffin v. State we explained that an individual's interest in the right to keep and bear arms is strongest when 'the weapon is in one's home or business and is being used for security.' Residents have a possessory interest in both their apartments and the common areas. And although Residents cannot exclude other residents or the public from the common areas, their need for security in those areas is just as high for purposes of Section 20 as it would be inside their apartment or business.") (internal citations omitted).

Del. Const. , art. I, § 20 (1987).

11 Del. C. § 466 ("The use of deadly force for the protection of property is justifiable only if the defendant believes that: (1) The person against whom the force is used is attempting to dispossess the defendant of the defendant's dwelling otherwise than under a claim of right to its possession; or (2) The person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either: a. Had employed or threatened deadly force against or in the presence of the defendant; or b. Under the circumstances existing at the time, the defendant believed the use of force other than deadly force would expose the defendant, or another person in the defendant's presence, to the reasonable likelihood of serious physical injury.").

See, e.g. , "Castle Doctrine" Self–Defense Law , NRA Institute for Legislative Action (Apr. 26, 2005), https://www.nraila.org/articles/20050426/castle-doctrine-self-defense-law (quoting former NRA president Marion Hammer "This law is about affirming that your home is your castle and, in Florida, you have a right to be absolutely safe inside its walls.").

Compare Del. Const. , art. I, § 13 (1987) ("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 W.V. Const. , art. III, § 22 (1986) ("A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.") and Kan. Const. , Bill of Rights § 4 (2010) ("A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.").

Cf. Colo. Const. , art. I, § 15 (1876) ("The right of no person to keep and bear arms in defense of his home, person, and property or in aid of the civil power when thereto legally summoned, shall be called in question ...."); Miss. Const. , art. III, § 12 (1890) ("The right of every citizen to keep and bear arms in defense of his home, person, or property or in aid of the civil power when thereto legally summoned, shall not be called into question ...."); Mo. Const. , art. I, § 23 (1945) ( "That the right of every citizen to keep and bear arms ... in defense of his home, person family and property, or when lawfully summoned in the aid of the civil power, shall not be questioned."); Mont. Const. , art. II, § 12 (1889) ("The right of any person to keep or bear arms in defense of his home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called into question ...."); Neb. Const. , art. I, § 1 (1988) ("All persons ... have certain inherent and inalienable rights; among these are ... the right to keep and bear arms for security and defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes ...."); Okla. Const. , art. I, § 4 (1907) ("The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited ....").

Cf. N.H. Const. , pt. 1, art. 2–a (1982) ("All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."); N.D. Const. , art. I, § 1 (1984) ("All individuals ... have certain inalienable rights, among which are ... to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed."); Utah Const. , art. I, § 6 (1984) ("The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.").

Doe v. Wilmington Hous. Auth. , 88 A.3d 654, 665 (Del. 2014).

Majority Op. 639 n.25; 11 Del. C. § 1441.

18 U.S.C. §§ 926c –926b (2015).

18 U.S.C. §§ 926c –926b ; 11 Del. C. §§ 1441A –1441B (emphasis added).

80 Del. Laws ch. 161 (2016); Sec. Order No. 2016–P–0006 (Feb. 15, 2016).

See supra note 8.

Appellants' Amend. Opening Br. 12 ("But for the Regulations adopted by the Agencies, the Sportsmen would exercise their State constitutional rights to keep and bear firearms within Delaware State Parks and State Forests.").

Id. at 1–2.

Id. at 1 n.3 ("This ban covers expensive cabins that can be rented at State Parks for weeks at a time to house families."); id. at 9–10, 26.

Id. at 12.

Id. at 6.

Id.

Id. at 15.

See Programs at Delaware State Parks , Del. State Parks , http://www.destateparks.com/programs/index.asp (last visited Sept. 8, 2017) (overview of public programs, school group programs, scout programs summer camps, and school break day camps offered in state parks); see also Annual Report 2016, Del. Forest Serv. 21–22 (2016), http://delawaretrees.com/dfs_fy16_annualreport.pdf (description of school groups and community organizations making use of state forests in 2016).

See How to Plan a State Park Field Trip , Del. State Parks , http://www.destateparks.com/school/plan.asp (last visited Sept. 8, 2017).

See Summer Camps at Delaware State Parks , Del. State Parks , http://www.destateparks.com/programs/summer-camps/index.asp (last visited Sept. 8, 2017) ("Half-day camps for four– to six-year-olds with various nature themes are offered in summer, as well as full-day camps for six– to seventeen-year-olds. Many camps offer before and after care. Summer camp information is posted in January. Single– or multi-day school break camps keep kids interested, active and learning when school is closed during the school year.").

Delaware State Parks 2016 Annual Report 11, 13 (2016), http://destateparks.com/FY2016/AnnualReport.pdf; Kickball , Del. Sports League , https://www.delawaresportsleague.com/leagues/kickball (adult kickball league competes at Alapocas Run State Park); Schedule Entrance Fees & User Charges , Div. Parks & Recreation (2017), http://www.destateparks.com/downloads/fees/2017RatesFeesCharges.pdf (fee to rent football or soccer fields for youth athletics); Registration , Beach 5 Sand Soccer Series , http://www.beach5sandsoccerseries.com/registration5.php (last visited Nov. 21, 2017) ("best beach soccer tournament on the east coast" with both "youth and adult divisions" at Dewey Beach, Delaware, among other locations); Boys' Soccer—Varsity Schedule , St. Georges Tech. High Sch. , https://www.hawkssports.com/page9435 (last visited Nov. 21, 2017) (listing Cape Henlopen State Park as one of the team's scheduled practice locations).

See Delaware State Parks: Historic Elegance, Rustic Charm, Seaside Romance (2016), http://pubs.hawthorncreative.com/delawarestateparks/ (state park sites available for weddings); Annual Report 2016, Del. Forest Serv. 21–22 (2016), http://delawaretrees.com/dfs_fy16_annualreport.pdf (events held by community organizations in Forests).

See generally Activities in Delaware State Parks , Del. State Parks , http://www.destateparks.com/activities/index.asp (last visited Sept. 8, 2017) (activities offered in Parks include adventure racing, biking, mountain biking, birding, camping, disc golf, fishing, geocaching, golf, hayrides, hiking, horseback riding, hunting, music and arts, paddling, picnicking, rock climbing, rappelling, stargazing, summer camps, summer concerts, swimming, and tennis); Delaware State Forests , Del. Forest Serv. , http://dda.delaware.gov/forestry/forest.shtml (last visited Sept. 9, 2017) (activities offered in Forests include hiking, horseback riding, hunting, running, bicycling, cross-country skiing, primitive camping, picnicking, and fishing).

In 2016, the Forests welcomed "an estimated 26,565 visitors [who] logged 26,238 user-days with such popular activities as hunting, wildlife observation, hiking, and horseback riding" and the state forests reported 97,479 participants to state park nature centers and historic buildings and 47, 414 participants in the state park summer concerts. Annual Report 2016, Del. Forest Serv. 2 (2016), http://delawaretrees.com/dfs_fy16_annualreport.pdf; Delaware State Parks 2016 Annual Report 11, 13 (2016), http://destateparks.com/FY2016/AnnualReport.pdf.

Appellants' Amend. Opening Br. 6–7, 43; see Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 450–51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ("Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of 'premature interpretation of statutes on the basis of factually barebones records.' Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither 'anticipate a question of constitutional law in advance of the necessity of deciding it' nor 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that '[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.' ") (internal citations omitted).

Reno v. Flores , 507 U.S. 292, 315, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (quoting Schall v. Martin , 467 U.S. 253, 281, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) ).

Id. at 301, 104 S.Ct. 2403 (citing United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ); Salerno , 481 U.S. at 745, 107 S.Ct. 2095 ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.").

Hazout v. Tsang Mun Ting , 134 A.3d 274, 287 n.43 (Del. 2016) (gathering authorities showing the great caution that must be used in addressing a facial challenge); Boilermakers Local 154 Ret. Fund v. Chevron Corp. , 73 A.3d 934, 948–49 (Del. Ch. 2013) ("[T]he plaintiffs' burden on this motion challenging the facial statutory and contractual validity of the bylaws is a difficult one: they must show that the bylaws cannot operate lawfully or equitably under any circumstances .... The plaintiffs voluntarily assumed this burden by making a facial validity challenge, and cannot satisfy it by pointing to some future hypothetical application of the bylaws that might be impermissible.").

Justice v. Gatchell , 325 A.2d 97, 102 (Del. 1974) (citing State Highway Dep't v. Del. Power & Light Co. , 167 A.2d 27 (Del. 1961) ).

E.g. , Ringler v. Paintin , 1980 WL 332988, at *2–3 (Del. Super. July 24, 1980) ("As rules and regulations enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of laws, the traditional test provides the applicable framework for our analysis.") (internal citations omitted).

Stevenson v. Del. Dep't of Nat. Res. & Envtl Control , 2014 WL 4937023, at *7 (Del. Super. Sept. 22, 2014) (citing 29 Del. C. § 10141 )). "Agency action" includes an agency's regulation, defined as "any statement of law, procedure, policy, right, requirement or prohibition formulated and promulgated by an agency as a rule or standard, or as a guide for the decision of cases thereafter by it or by any other agency, authority or court." 29 Del. C. §§ 10102(2), (7).

Council 81, Am. Fed'n of State, Cty. & Mun. Emps., AFL–CIO v. State of Del., Dep't of Fin. , 293 A.2d 567, 571 (Del. 1972) (In interpreting an ambiguous statute, the Court will "give due weight to the practices and policies existing at the time [Section] 2713 was enacted and which continued thereafter for 17 years. A long-standing, practical, and plausible administrative interpretation of a statute of doubtful meaning will be accepted by this Court as indicative of legislative intent.") (citations omitted); Harvey v. City of Newark , No. 5023-VCS, 2010 WL 4240625, at *6 (Del. Ch. Oct. 20, 2010) ("Similarly, when a statute has been applied by the relevant government organ in a consistent way for a period of years, that is strong evidence in favor of interpreting the statute in accordance with that practical application.").

Giuricich v. Emtrol Corp. , 449 A.2d 232, 239 n.13 (Del. 1982).

Jackson v. Danberg , C.A. No. 07M–09–141 RRC, 2008 WL 1850585, at *4 (Del. Super. Apr. 25, 2008).

Watson v. Burgan , 610 A.2d 1364, 1367 (Del. 1992) ("[T]he original regulation adopted by the Department remained in effect for fourteen years without interference by the General Assembly. Such inaction may well constitute acquiescence and be indicative of legislative intent. More importantly, the Department's parole eligibility regulation was implicitly adopted by prosecutors, defense lawyers and judges throughout the State in the negotiation of guilty pleas.").

State v. Blount , 472 A.2d 1340, 1346 (Del. Super. 1984) ("Furthermore, the Court must, and should, keep in mind the principal of statutory construction which has been followed by courts from time immemorial: that a statute will be presumed to be constitutionally firm unless the evidence is clearly to the contrary. Thus, a party asserting the unconstitutionality of a statute must show that the question of the constitutionality of the statute is fairly debatable. Moreover, once a party has established that the constitutionality of the statute is fairly debatable, he must, in order to overcome the presumption of constitutionality, establish clearly and convincingly the lack of constitutionality of the statute.") (internal citations omitted); see generally City of Chicago v. Morales , 527 U.S. 41, 77–81, 119 S.Ct. 1849, 144 L.Ed.2d 67 (Scalia, J., dissenting) ("[B]efore declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish that the statute was unconstitutional in all its applications.").

The Majority points to some arguable inconsistencies in the General Assembly's regulation of firearms to support its conclusion that the Regulations "are grossly out of step with the types of 'place'-based restrictions adopted by our General Assembly." Majority Op. 657. That our General Assembly has not been consistent in all respects in the regulation of weapons does not distinguish this subject form most others. Legislating is complex, and arguable or genuine inconsistencies can crop up in many areas. The Judiciary is not charged with writing judicial decisions that correct that. As we show, if anything, the General Assembly's action acknowledges the validity and existence of the Regulations.

Public Protected Lands , Del. Open Data , https://data.delaware.gov/Recreation/PublicProtected-Lands/whe2-8n4h/data (last visited Oct. 28, 2017) (mapping Delaware's Outdoor Recreation Inventory of state owned lands).

Ezell v. City of Chicago , 651 F.3d 684, 702 (2011) ( "Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.").

Doe v. Wilmington Hous. Auth. , 88 A.3d 654, 668 (Del. 2014).

In Heller , the word "longstanding" only qualified one set of restrictions, and not those involving sensitive places. 554 U.S. at 626–27, 128 S.Ct. 2783 ("Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."); id. at 626, 128 S.Ct. 2783 n.26 ("We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."). McDonald reaffirmed this part of Heller , but moved the term "longstanding" to the front of a list including regulation of sensitive places. McDonald v. City of Chicago , 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ("We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' ") (internal citations omitted).

80 Del. Laws ch. 161 (2016); Dep't of Nat. Res. & Envtl. Control, Approving Final Regulations to Amend 7 DE Admin. Code § 9201: Regulations Governing State Parks , Secretary's Order No.: 2016–P–0006 2 (Feb. 15, 2016) ("The primary purpose of this proposed regulatory promulgation is to adopt as final the aforementioned proposed revised Amendments to 7 DE Admin. Code § 9201, Regulations Governing State Parks ... to mirror the recent changes made to Delaware law as a result of the passing of Senate Bill 114 ... by the 148th General Assembly in 2015. This bill declassifies a number of minor violations associated with state parks by changing some violations from an unclassified misdemeanor to a Class 'D' " environmental violation."). The Park Regulation is now a Class D environmental violation. Id. at 28.

Doe , 88 A.3d at 666–67.

7 Del. C. § 4701(a)(4) (authorizing DNREC to "[m]ake and enforce regulations relating to the protection, care and use of the areas it administers"); 3 Del. C. § 1011 (authorizing DOA to "execute all matters pertaining to forestry within the jurisdiction of the State; devise and promulgate rules and regulations for the enforcement of the state forestry laws and for the protection of forest lands, and impose fines in furtherance thereof").

It is not unusual to say that places where children play and firearms do not mix. See Tingle v. Ellis , No. Civ.A 97C-11-020, 1999 WL 743651, at *4 (Del. Super. Aug. 10, 1999) ("The goal of [Section 1456 of Title 11, which criminalizes unlawfully allowing a minor access to a firearm] is to keep firearms from minors who might injure themselves or others in operating or handling a firearm."); People v. Heber , 745 N.Y.S.2d 835, 839 (2002) ("Because of a growing public concern regarding the accidental shootings of children in the homes of gun owners, 18 states have enacted safe storage laws for firearms. Known as Child Access Prevention ('CAP') laws, most of the statutes generally make it a crime for a gun owner to store a loaded firearm in a manner in which he knows or reasonably should know a child may gain access to the weapon[.] If a child does gain access to the gun and uses it to inflict injury or death upon him/herself or another person, the gun owner is held criminally liable."). That firearms can be dangerous, or at least perceived as such, is also understood. See generally Embody v. Ward , 695 F.3d 577, 579 (6th Cir. 2012) (noting that Embody, carrying an AK–47 in a Tennessee state park, "anticipated his appearance at the park would attract attention" and confirming that park visitors reported his presence to park rangers); Dep't of Nat. Res. & Envtl. Control, Approving Final Regulations to Amend 7 DE Admin. Code § 9201: Regulations Governing State Parks , supra note 276 (classifying mechanical bait casters as firearms and stating, "beaches are frequently at capacity, and anglers are in close proximity of each other. The Department has safety concerns for other users groups in such areas, such as kayakers, walker, body surfers and swimmers, when a device such as this is being operated within such close proximity. Moreover, operator error with such a device draws additional safety concerns when used on Division-managed lands. The Department notes that just one individual improperly using such a device could severely injur[e] or kill other recreational users of the park.").

Majority Op. 636 ("Appellants challenge two regulations adopted by two different State agencies that result in a near total ban of firearms in Delaware's state parks and forests.").

See supra note 22; see also United States v. Marzzarella , 614 F.3d 85, 91 (3d Cir. 2010) ("The District of Columbia's handgun ban is an example of a law at the far end of the spectrum of infringement on Second Amendment rights. It did not regulate possession of handguns: it prohibited it, even for the stated fundamental interest protected by the right—the defense of hearth and home.") (internal citations omitted).

See, e.g. , Calguns Found., Inc. v. Cty. of San Mateo , 218 Cal.App.4th 661, 678, 160 Cal.Rptr.3d 698 (2013) (finding an ordinance prohibiting the possession and use of guns in county parks was not a total ban because, unlike a citywide or countywide prohibition on handgun possession in San Francisco, this ordinance "merely regulate[d] the possession or use of firearms on county property.") (discussing Fiscal v. City & Cty. of S.F. , 158 Cal.App.4th 895, 70 Cal.Rptr.3d 324, 338–39 (2008) ).

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 8.04 (1977); Del. Dep't Agric. § 7.9 (2003); 3 Del. Admin. C. § 402–3.2.

Appellants' Amend. Opening Br. 19–20.

Doe v. Wilmington Hous. Auth. , 88 A.3d 654, 667 (Del. 2014).

Id. at 668 (emphasis added).

McDonald v. City of Chicago , 561 U.S. 742, 744, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (quoting District of Columbia v. Heller , 554 U.S. 570, 628, 128 S.Ct. 2783 (2008) ) (internal citations omitted).

See, e.g. , Hall v. Garcia , No. C 10-03799 RS, 2011 WL 995933, at *2 (N.D. Cal. Mar. 17, 2011) (upholding a prohibition on firearms near school property, explaining "[i]t is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling,' " and reiterating that that the United States Supreme Court has "sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights") (quoting New York v. Ferber , 458 U.S. 747, 756–57, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ); United States v. Masciandaro , 638 F.3d 458, 473 (4th Cir. 2011) (finding that "the government has a substantial interest in providing for the safety of individuals who visit and make use of the national parks" and noting that "large numbers of people, including children, congregat[ing] for recreation, ... justif[ies] reasonable measures to secure public safety"); GeorgiaCarry.org, Inc. v. U.S. Army Corps of Engineers , 212 F.Supp.3d 1348, 1369 (N.D. Ga. 2016) (finding that the "Army Corps undoubtedly has a substantial interest in 'providing the public with safe and healthful recreational opportunities while protecting and enhancing [its] resources' ") (quoting 36 C.F.R. § 327.2 )); Bonidy v. U.S. Postal Service , 790 F.3d 1121, 1125–26 (10th Cir. 2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1486, 194 L.Ed.2d 550 (2016) (finding that USPS's desire to "creat[e] a safe environment for its patrons and employees" was an important governmental interest). In fact, it appears no other courts have objected to general safety concerns when analyzing important government interests under intermediate scrutiny.

Appellants' Amend. Opening Br. 27–28; Appellants' Corrected Reply Br. 12.

Appellants' Amend. Opening Br. 19–20 (citing Moore v. Madigan , 702 F.3d 933, 938–39 (7th Cir. 2012) ).

Majority Op. 649 ("More than two decades later, the United States Supreme Court's decisions in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), finally settled the questions that had served as an impetus for Section 20.").

Distinguished scholars have reviewed the arguments of pro-gun advocates that firearm regulation in the United States and elsewhere has not been associated with lower rates of violence and homicide. Their comprehensive analysis contradicts that assertion and provides evidence that governmental regulation of firearm possession and use can be effective in reducing violence. See, e.g. , John Donohue & Ian Ayres, Shooting Down the More Guns, Less Crime Hypothesis , 55 Stan. L. Rev. 1193 (2003) ; see also John J. Donohue III et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State–Level Synthetic Controls Analysis , (Stanford Law and Economics Olin Working Paper No. 508, Columbia Business School Research Paper No. 17–67, Stanford Public Law Working Paper), https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3034416_code445373.pdf?abstractid=2990220&type=2. This is despite the fact that states and localities with gun control legislation in the United States must deal with the reality that if their neighboring jurisdictions do not enact gun control legislation, guns can find their way to the mentally ill and those with criminal records in jurisdictions that do not limit their access. In addition, guns (for example, those that can act like a machine gun) that are not legal in their jurisdictions can travel in from neighboring jurisdictions that allow that type of weapon. On a comparative basis, compelling evidence exists that the higher prevalence of firearms in the United States results in a level of gun violence far exceeding similar nations. The United States has far more guns per capita than the nations we consider similar to our own. German Lopez, Ted Cruz Accidentally Explained America's Gun Problem in One Sentence , Vox (Nov. 7, 2017), https://www.vox.com/policy-and-politics/2017/11/6/16615218/ted-cruz-gun-control-sutherland-springs-texas-shooting (reporting that in the United States, there are an average of eighty-nine guns per one hundred people, as compared to, for example, thirty-one guns per one hundred people in Canada, fifteen guns per one hundred people in Australia, six guns per one hundred people in England and Wales, and six-tenths of a gun per one hundred people in Japan). Consistent with the greater prevalence of guns, Americans suffer far more deaths by gun per capita than our friends in ally nations. Id. (in the United States, there are an average of 2.97 gun-related homicides per one hundred thousand people, as compared to, for example, 0.51 gun-related homicides per one hundred thousand people in Canada, 0.14 gun-related homicides per one hundred thousand people in Australia, 0.07 gun-related homicides per one hundred thousand people in England and Wales, and 0.01 gun-related homicides per one hundred thousand people in Japan). The explanation that the prevalence of firearms explains those differences is more savory than assuming that Americans are just more violent and murderous than Europeans, Asians, Canadians, or Australians.

We also note that the penalties associated with a violation of the Regulations are modest. For example, a Park Regulation violation is classified as an environmental misdemeanor that subjects a first-time violator to a fine between fifty and one hundred dollars, and a Forest Regulation violation, an unclassified misdemeanor, subjects a first time violator to a fine between twenty-five and two hundred and fifty dollars. 7 Del. Admin. C. § 9201–25.0; 3 Del. Admin. C. § 402.10.0.

Del. Dep't Nat. Res. & Envtl. Control, Park Rules and Regulations § 8.04 (1977); Del. Dep't Agric., State Forest Regulations § 7.9 (2003); 3 Del. Admin. C. § 402–3.2.

Majority Op. 658-59 ("Although there certainly could be some 'sensitive' areas in State Parks and State Forests where the carrying of firearms may be restricted, as is done in certain areas of National Parks, there is no record here that the State has undertaken any effort to delineate such areas so as not to infringe on Section 20 rights.") (internal citations omitted).

The Majority argues that the Agencies lack the authority to adopt the Regulations. But, they do not deny that the Agencies have the authority to regulate when visitors can enter the Parks and Forests, to limit activities such as the use of liquor, or to require visitors to pay entry and license fees. The Majority even admits that the Agencies can regulate firearm possession and use in the Parks and Forests, but just must do so more narrowly. In other words, all the Majority contends is that no agency may adopt a regulation that violates our Constitution. We agree with that, but do not agree that these Regulations run afoul of Section 20.

See, e.g , Warden v. Nickels , 697 F.Supp.2d 1221, 1229 (W.D. Wash. 2010) (upholding a prohibition on firearms at certain parks and facilities, finding the prohibition was valid because parks "where children and youth recreate" were sensitive areas, and explaining that, just as the government does not want weapons in courthouses and government buildings, "the City does not want those with firearms entering certain parks where children and youth are likely present"); United States v. Masciandaro , 638 F.3d 458, 473 (4th Cir. 2011) (applying intermediate scrutiny, upholding a ban prohibiting loaded guns in vehicles within a national park area, finding that "the government has a substantial interest in providing for the safety of individuals who visit and make use of the national parks," and explaining that the national parks are an "area where large numbers of people, including children, congregate for recreation," which justified implementing "reasonable measures to secure public safety"); GeorgiaCarry.org, Inc. v. U.S. Army Corps of Engineers , 212 F.Supp.3d 1348, 1372–73 (N.D. Ga. 2016) (applying intermediate scrutiny and finding the "high density of visitors, use of recreational facilities, the various potential sources of conflict among visitors, and limitations on the Corps' ability to police its own properties, restricting visitors' authority to carry loaded firearms helps Defendant Army Corps maintain public safety and the security of infrastructure on those properties"); Bonidy v. U.S. Postal Service , 790 F.3d 1121, 1125–26 (10th Cir. 2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1486, 194 L.Ed.2d 550 (2016) (explaining that "the fact that the government is acting in a proprietary capacity, analogous to that of a person managing a private business" was relevant because the government has "more flexibility to regulate when it is acting as a proprietor" and finding that the ban is was substantially "relevant to the USPS's business objectives, which include[d] providing a safe environment for its patrons and employees"); Hall v. Garcia , No. C 10-03799 RS, 2011 WL 995933, at *2 (N.D. Cal. Mar. 17, 2011) (upholding a prohibition on carrying weapons within one thousand feet of school property and finding that it was "beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling," and thus survived intermediate scrutiny"); see also Embody v. Ward , 695 F.3d 577, 581 (6th Cir. 2012) ("No court has held that the Second Amendment encompasses a right to bear arms within state parks.").

Our colleagues in the Majority take issue with our dissent in several ways. We will not endeavor an extensive response to each, but suffice with this footnote. For example, the Majority argues that we focus on the state of English law only in 1977, not as of the time of Delaware's founding. But we show that, as of our founding, any English right to bear arms was subject to restriction and regulation by Parliament, the equivalent of our General Assembly, and we show how by 1977, Parliament had used that power to regulate the ownership and possession of firearms. See supra Part IV, Section F.
The Majority also suggests that our view that our government may create havens for recreation and family time that are weapons-free somehow portends its ability to restrict freedom of speech, and even engage in viewpoint discrimination. Nothing, of course, in our opinion suggests such a thing, and the reality is that even as to free speech, the government as a proprietor has the right to limit where and when speech may be exercised, and that government operates all kinds of properties (schools, courthouses and judicial chambers, museums, libraries, police stations) where no one has the right to come and just give a speech. When lethal force is present, an increased danger to others always exists, as recent events show. See, e.g. , Marwa Eltagouri, Man Accidentally Shoots Himself and His Wife at a Church, Shortly After a Discussion on Shootings , Wash. Post (Nov. 17, 2017), https://www.washingtonpost.com/news/acts-of-faith/wp/2017/11/17/a-man-accidentally-shot-himself-and-his-wife-at-a-church-shortly-after-a-discussion-on-shootings/; Marwa Eltagouri, He Thought He Saw a Deer and Fired His Pistol. Now His Neighbor is Dead , Wash. Post (Nov. 24, 2017), https://www.washingtonpost.com/news/animalia/wp/2017/11/24/he-thought-he-saw-a-deer-and-fired-his-pistol-now-his-neighbor-is-dead/?utm_term=.bd2afbb0af29. That is not true of an expression of an opinion. But, even in our Parks and Forests, you cannot just hold a rally on the softball field or in the trout stream. On this point, another reality exists. It was long understood that government could restrict gun possession on its property or even near it, supra note 56 (citing Lois G. Schwoerer, Gun Culture in Early Modern England 59, 61 (2016) (identifying laws prohibiting the carrying of small handguns within the royal court or a three-mile radius of it)), because of the obvious dangers lethal force presents, and as we show, Section 20 was adopted on the basis of accepting traditional restrictions on firearm possession and use, which included those that allowed the government to restrict firearm possession and use on its own lands. To this, even McDonald went out of it way to disclaim any "doomsday" reading of its reasoning, and to assure that it "does not imperil" all regulations of firearms, including longstanding regulations on the possession and ownership of guns, like the ones at issue here. McDonald v. City of Chicago , 561 U.S. 742, 787, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
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