Federal Judge Partially Blocks Delaware ‘Ghost Gun’ Law

A new federal ruling casts doubt on a government’s ability to restrict the self-manufacture of firearms for personal use.

U.S. District Court Judge Maryellen Noreika issued a preliminary injunction on Friday blocking the state of Delaware from enforcing provisions of its recently-passed law outlawing the manufacture and possession of unserialized firearms and unfinished firearm components. The judge noted that the plaintiffs in the case were likely to succeed in proving the provisions that prohibit manufacturing unserialized firearms “are unconstitutional” at trial.

“These statutes burden constitutionally protected conduct because possession of firearms and firearm frames and receivers is within the scope of the Second Amendment’s right to ‘keep and bear Arms’ and Defendant has not shown that these firearms and components are not commonly owned by law-abiding citizens for lawful purposes,” Judge Noreika wrote in her opinion. “Further, Defendant has offered no evidence that these statutes are consistent with the nation’s history of firearm regulation.”

The decision is just the latest in a string of recent federal court decisions to put a cloud over modern gun-control regulations. Under the standard laid out in the Supreme Court’s New York State Pistol and Rifle Association v. Bruen, governments defending the legality of gun laws must show that they comport with the nation’s historical tradition of firearms regulation. The decision also arrives as government scrutiny of homebuilt guns reaches an apex. In recent months, dozens of states and localities have passed laws to crack down on homemade weapons, and President Joe Biden’s first-ever executive order related to guns was devoted to banning “ghost gun” building kits. That regulation went into effect last month.

Friday’s ruling could call those efforts into question in future legal proceedings.

Judge Noreika’s opinion marks the first-ever federal decision to recognize a Second Amendment right to self-manufacture firearms for personal use, according to the gun-rights group Firearms Policy Coalition (FPC).

“The self-manufacture of arms is deeply rooted in American history,” Joseph Greenlee, FPC’s Director of Constitutional Studies, said in a press release. “It has been a celebrated tradition since the earliest colonial days, it helped save America’s war for Independence, it was essential to western expansion, and it has led to many of the most innovative technological breakthroughs in our nation’s history.”

FPC, who were plaintiffs in the case, cheered the decision.

“We are pleased that the court recognized this essential element of the right to keep and bear arms and will continue to fiercely advocate for its protection,” Greenlee said.

Attorney General Kathleen Jennings (D.), the named defendant in the suit, did not respond to a request for comment.

The case stems from Delaware’s House Bill 125, which was signed into law by Governor John Carney (D.) last October. Like other “ghost gun” bans enacted in recent months, the bill criminalizes the manufacture, possession, or sale of any unfinished frame, receiver, or complete firearm without a serial number. However, Delaware’s law goes further and bans sharing instructions or code for making firearms.

Judge Noreika declined to block that latter provision on Friday, calling it “a valid, content-neutral regulation of speech.”

“The statute is concerned with the distribution of functional code that can build a firearm, firearm receiver, or major firearm component – a concern that aligns with the government’s substantial interest in restricting the distribution of untraceable firearms,” she wrote. “Given the narrow scope of the statute, the Court finds that it leaves ample alternative channels to communicate about how to use a 3D-printer to manufacture a firearm, firearm receiver, or major firearm component.”

Judge Noreika also declined to issue a permanent injunction against the law after cautioning that the issues at stake were of significant public interest.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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