Portions of a new Delaware law tamping down on build-at-home “ghost guns” that lack serial numbers and can’t be traced will be put on hold while a constitutional challenge makes its way through federal court.
The case challenges a set of laws enacted in 2021 that limit or prohibit the distribution, possession, and manufacture of unfinished firearm components and untraceable firearms. The laws are an effort to curb the increase in do-it-yourself kits that allow for firearms that lack serial numbers and other identifying information—an issue the Bureau of Alcohol, Tobacco, Firearms and Explosives tackled on the federal level earlier this year.
The plaintiffs, Delaware residents who own self-manufactured firearms or the components necessary to make them, won a preliminary injunction blocking several of the challenged laws from taking effect. The Sept. 23 order, issued by Judge Maryellen Noreika of the US District Court for the District of Delaware, also allowed them to move forward with all of their claims under the First, Second, and Fifth Amendments of the US Constitution.
Portions of the law restricting the possession and manufacture of these items likely violate the Second Amendment, Noreika said, because the right to keep and bear arms “implies a corresponding right to manufacture arms.”
“Thus, if possessing untraceable firearms is protected by the Second Amendment, then so too is manufacturing them,” she said.
Noreika temporarily blocked the state from enforcing these rules, but she declined—for now—to block rules regulating firearm distribution or a law prohibiting the distribution of computer code that could be used to make a firearm on a 3D printer. The latter rule, which the plaintiffs challenged under the First Amendment, appears to be a valid, content-neutral regulation of speech that’s supported by a substantial government interest in public safety, she said.
Gellert, Scali, Busenkell & Brown LLC represented the plaintiffs. The Delaware Department of Justice defended the laws.
The case is Rigby v. Jennings, 2022 BL 337814, D. Del., No. 1:21-cv-01523, 9/23/22.