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Archive for February, 2010

Delaware’s public housing authorities have requested an Attorney General’s opinion regarding their firearms bans, which Second Amendment legal experts say is unconstitutional.

By Lee Williams

Attorney General Beau Biden is being asked to decide whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applies to people living in public housing.

At a meeting of its board held Tuesday night, the Dover Housing Authority voted to request an Attorney General’s opinion regarding the constitutionality of its gun ban.

Dover Attorney R. Brandon Jones, who serves as counsel to the DHA board, said the DHA mistakenly believed most housing authorities banned their residents from owning firearms.

“This authority felt it had to include those provisions in the lease because we thought that all housing authorities across the country included them,” Jones said. “It came as quite the surprise that it was not the case. The bottom line: this authority wants to do what the law requires. Rather than for us to guess, we feel the appropriate thing to do is to forward this to the attorney general, and get an opinion from the AG.”

Jones said both the Wilmington Housing Authority and the Delaware State Housing Authority told him they too requested an opinion from Biden.

“I don’t know if it’s a fact, but they told me they were going to ask for one too,” Jones said.

At a meeting of the Wilmington Housing Authority board, held Monday evening, the Caesar Rodney Institute asked what, if anything, the WHA intended to do about its gun ban.

Bernadette Winston, who chairs the WHA board, said, “I’m going to tell you right now we don’t have an answer. The board, executive director and our attorney will be considering the issue. When we have an answer, you’ll be one of the first ones called.”

Delaware State Housing Authority spokesperson Christine Hardin would not confirm whether her agency had also asked Biden for a written opinion.

“We’re still reviewing and discussing policy,” Hardin said.

Biden did not return calls or e-mails seeking comment for this story.

The decision to seek an Attorney General’s opinion comes in response to an ongoing investigative series by the Caesar Rodney Institute, which revealed that every housing authority in Delaware banned their residents from owning firearms for self-defense.

After CRI’s series was published, the Newark Housing Authority withdrew its firearms ban. However, the three remaining housing authorities still prohibit their residents from owning firearms.

The National Rifle Association has announced it will sue the housing authorities if the bans are not withdrawn. Similar lawsuits by the NRA have forced housing authorities in California and Maine to drop gun bans.

Biden’s written opinion could ultimately prove costly to Delaware taxpayers, should he rule in favor of keeping the bans, because the NRA is not otherwise likely to drop plans for its suit. Two of the country’s foremost Second Amendment litigators have predicted the court costs; possible damages and attorneys fees associated with defending the gun bans could cost Delaware taxpayers millions of dollars.

Bans legally indefensible

At the DHA board meeting, Jones announced he has researched the legality and constitutionality of the gun bans and found several cases that showed the bans might not violate the rights of the public housing residents.

“There’s a mixed bag of what other jurisdictions have done,” he said.

Jones declined to cite the cases supporting the constitutionality of the bans, however another legal scholar has found quite the opposite.

Dover attorney John Sigler is a CRI board member and former president of the NRA.

“I am encouraged to hear that both the Wilmington Housing Authority and the Dover Housing Authority are seeking legal advice in this matter. That says to me that they recognize the seriousness of the situation and are at least attempting to deal with the situation in a rational and reasoned manner,” Sigler said. “I must caution, however, that every day that passes increases the risk that one of the law-abiding residents of public housing who have been unilaterally stripped of their constitutionally protected right to keep and bear arms for self protection will become the victim of a violent criminal act that might have been otherwise preventable had they been allowed the means to defend themselves, their homes and their families as promised by Article I Section 20 of our Delaware Constitution.”

Sigler is confident legal research conducted by the Attorney General will find the 1990 U.S. District Court case out of the Eastern District of Virginia known as Richmond Tenant’s Organization, Inc v. Richmond Redevelopment and Housing Authority.

“This case is no longer good law,” he said. “Those attorneys will find that the test applied by that court for the purposes of determining the constitutionality of such regulations was specifically rejected by the U.S. Supreme Court in District of Columbia v. Heller,” Sigler said. “Likewise, with the Heller Court’s specific rejection of the so-called “rational basis test” in Second Amendment analyses, all other cases arising in that context before Heller using the rational basis test must also be suspect as to their continued viability as reliable precedent.”

“I am also confident that the attorney general will find the Heller language concerning the God-given right of self defense being a part of the right to keep and bear arms to be instructive, and the recent decision of the Supreme Court of the State of Washington in the case of State v. Sieyes, wherein that Court ruled that the Second Amendment applied to the states to be a harbinger of things to come in the currently pending U.S. Supreme Court case of McDonald v. Chicago. Equally instructive will be the ‘friend of the court’ briefs filed in that case by 38 state Attorneys General, 251 members of the US House of Representatives, 58 members of the United States Senate and 891 state legislators and elected officials including two governors and 3 lieutenant governors – 21 of whom were from Delaware – in which they all agreed with the ultimate conclusion in Sieyes that the Second Amendment applies to the states.”

“Obviously,” Sigler said, the Attorney General need not even reach the conclusion of the Sieyes court or wait until the U.S. Supreme Court decides the McDonald case.

“On the contrary, all they have to do is pull their Delaware Codes off the shelf and read for themselves Article I Section 20 of the Delaware Constitution which states in clear and unequivocal terms; ‘A person has the right to keep and bear arms for protection of self, family, home and State, and for hunting and recreational use.’”

Sigler said the Attorney General will also discover the U.S. 3rd Circuit Court of Appeals case from 1981 called Heatherton v. Sears, Robuck & Company, in which the court held that granting and withholding rights based upon economic status violated the equal protection clause.

“Likewise, they are sure to find in their research three U.S Supreme Court cases, Lefkowitz v. Turley, Keyishian v. Board of Regents, and Sherbert v. Verner, all of which found that the government may not condition entitlement to a public benefit – such as public housing – upon the waiver of a constitutional right.”

“With the Heller Court holding that the D.C ban on the private ownership of handguns in the home for self protection would fail constitutional muster ‘under any of the standards of scrutiny that we have applied to enumerated constitutional rights;’ and Delaware’s Justice Holland writing in his treatise The Delaware State Constitution: A Reference Guide, that ‘The textual differences between this section (Article I Section 20) appear to afford greater protections under the Delaware Constitution than the protections of the Second Amendment to the United States Constitution,’ it would seem that the Attorney General will be left with little choice but to render an opinion that these bans on the private ownership of firearms by law-abiding citizens in public housing are, in fact, unconstitutional and must be rescinded.”

Said Sigler: “I sincerely hope that our Attorney General or other attorneys researching this issue will advise these authorities to do the right thing; avoid the waste of taxpayer dollars in defense of an indefensible position; and to rescind their bans on the otherwise lawful ownership of firearms by law-abiding citizens. It is also my hope that they will do so sooner rather than later because, quite frankly, it is only a matter of time before some innocent victim will be harmed as the direct and proximate result of the intransigence of these three entities in not rescinding this ban sooner.”

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

READ THE SPECIAL REPORT: “Disarmed by Decree”

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Read the entire series in CRI’s Special Reports section.

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The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Feb.24, 2010 by the Caesar Rodney Institute

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By Shaun Fink

The future of our state’s economy, and the standard of living for all Delawareans, will rise and fall upon our ability to encourage small business owners to invest and expand the size and scope of their enterprises; and our success at attracting new companies and corporations to relocate to Delaware.  The General Assembly and Governor Markell must recognize that a strong recovery and new hiring depends on the confidence businesses have in the future.

Uncertainty is a fact of life for all businesses, but when Dover adds materially to that uncertainty, businesses invest less and hire less. This is especially true following a deep recession, with so many producers still struggling with excess capacity. The most powerful strategy the General Assembly can adopt is to stop threatening those in a position to hire.  That means no more tax increases, less regulation and a serious look at whether we should be engaged in the Regional Greenhouse Gas Initiative (RGGI).

Last year, President Obama pushed through a massive $862 billion jobs bill emphasizing “shovel-ready” projects. Yet the 2009 stimulus did little to promote new private investment; unsurprisingly, it failed to create jobs. This failure was expected because government spending only shifts spending in the economy. It neither increases overall demand nor gives private businesses a reason to invest in new projects.  Nowhere was that felt more deeply than right here in Delaware.  The stimulus dollars spent here may have helped fix, repair and build some roads and bridges.  But it did nothing to spur confidence or create new jobs.

The General Assembly should jettison ideology and instead promote entrepreneurship and investment with proven ideas that have worked time and again in the past.  Presidents John F. Kennedy, and Ronald Reagan had at least one thing in common.  They both understood the long term effect of substantial tax reform on the spirit and psyche of the risk-taking entrepreneur.

Only when those who are creating jobs and wealth are convinced that their efforts will not be punished through excessive taxation and regulation, will they once again reinvest into their business specifically, and the economy in general.  Tax cuts do “cost” in the initial year, inasmuch as they reduce the expected revenue for that first fiscal year.  However, as history has shown, the reduction of taxes on profits actually has a net positive result on total revenue to the state.

This past budget cycle reveals that there is an interesting converse in that relationship between taxes and revenue, as well.  The General Assembly, in an attempt to close a huge budget deficit without properly dealing with the issue of overspending, raised taxes an unheard of $200 million.  And, as DEFAC has met since the institution of that budget, it has continued to decrease its projected revenue forecasts.

So, the net result of a tax increase is a decreased revenue forecast.  The plain explanation to this phenomenon is that businesses will not invest and take risks when the government punitively increases its share of the profits.  The Laffer Curve plainly shows the relationship between tax rates and revenue.  There is a point where taxes fail to increase a government’s take.  In other words, the government never took the negative effect of their tax hikes into consideration, but rather assumed businesses would continue to function as though they were not being punished through higher taxes.

It is apparent that the General Assembly should not have increased taxes last year and should seriously consider rescinding those increases to invigorate the business community.  This proves the point that priority one ought not to be balancing the budget for the sake of having a balanced budget.  The consequences of the actions necessary to balance a budget must be considered.  What good is a balanced budget if the anticipated revenue never materializes?  Certainly, this is not a recipe for a healthy and vibrant economy.  And the latter should be the state’s number one goal.

The governor has issued this year’s budget with claims to be balanced without raising taxes as was done last year.  The flip side is that the FY 2011 budget also lacks real substantial spending cuts other than the superficial reorganization of a few state departments.  Should the JFC have the courage to tackle the issue of government spending and find some ways to save a couple hundred million, the tax increase of last year could be eliminated.  The effect that action would have to our economy could be staggering.

If the governor and legislators are truly looking to bring companies and business to Delaware, there is no better way than to offer a low tax, low regulation environment friendly to innovation and creativity.  It is time for bold leadership; will anyone step up to the plate?

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Shaun Fink is Executive Vice President of the Caesar Rodney Institute.

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Feb. 22, 2010 by the Caesar Rodney Institute

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The bipartisan legislation would limit the authority of public bodies to regulate firearms, absent specific authorization from the General Assembly.

By Lee Williams

A bill that would stop the state’s public housing authorities from banning guns was introduced today, co-sponsored by a bipartisan group of more than two-dozen state lawmakers.

Millsboro Democrat Rep. John C. Atkins and Georgetown Republican Sen. Joseph Booth are the prime sponsors of HB 357.

Both have said their legislation comes in response to an ongoing investigative series by the Caesar Rodney Institute, which revealed that every housing authority in Delaware banned their residents from owning firearms for self-defense.

After CRI’s series was published, the Newark Housing Authority withdrew its firearms ban. However, the Delaware State Housing Authority, along with the Wilmington and Dover housing authorities, still prohibit their residents from owning firearms.

The National Rifle Association has announced it will sue the housing authorities if the bans are not withdrawn. Similar lawsuits by the NRA have forced housing authorities in California and Maine to drop their gun bans.

“I decided to file this bill after the issue was brought to my attention by the Caesar Rodney Institute and the NRA,” Atkins said. “In my opinion, and that of several courts, what these housing authorities are doing is a clear violation of the Constitution.”

Booth said the bill is needed because other than Newark, the three remaining housing authorities have not withdrawn their firearms prohibitions.

“If we put legislation out there, generally the controlling authority will yield or bend,” he said. “This is a legislative maneuver that has worked before.”

“We have to allow their boards, who often meet monthly, time to change,” Booth said. “But we haven’t heard anything from the Delaware State Housing Authority. That concerns me.”

Booth said the bill is garnering support from lawmakers on both sides of the aisle.

“I will be interested in seeing how the administration will respond,” Booth said.

Dover attorney John Sigler, a CRI board member and former NRA President, said the bill will prevent housing authorities or other government agencies from unilaterally deciding to establish their own weapons bans in the future.

“The importance of this bill cannot be over-emphasized. Even if the remaining three Housing Authorities were to rescind their bans today, this is a much needed and very important measure that will ensure that such constitutional violations do not occur in the future,” Sigler said. “As Senator Booth said in an earlier interview: ‘This is a stand up and be counted thing.’”

Sigler hopes the bipartisan support continues.

“I congratulate each and every one of the current sponsors of HB 357, especially the prime sponsors, Rep. Atkins and Sen. Booth, for stepping to the plate to be counted on this measure,” he said. “Additionally, I encourage every member of both parties in both Houses of our General Assembly to step to the plate and do the right thing by becoming co-sponsors on HB 357, and by voting for its quick passage upon their return to Legislative Hall in March.”

John J. Thompson, president of the Delaware State Sportsmen’s Association, the state NRA affiliate, like Sigler, said the bill should prevent future gun bans from being established.

“It will also eliminate the concept of second-class citizenship for people who live in public housing,” Thompson said. “As a matter of policy and principal, that’s critically important.”

Senate Minority Leader Sen. F. Gary Simpson, R-Milford, said he decided to co-sponsor the legislation because “to deny those who are elderly, disabled or low-income their guaranteed gun rights is unfair and unconstitutional.”

Simpson said the bill is garnering good bipartisan support, and will likely pass both Houses.

“I don’t see how anyone could be against it,” he said. “We are all guaranteed Second Amendment rights. An arm of the state should not be denying those rights. Hopefully this won’t happen again.”

Laurel Democrat Sen. Robert L. Venables, Sr., said none of the housing authorities ever held public hearings before they enacted the gun bans.

“The bureaucrats made those decisions,” Venables said. “I’m not sure they should do that.”

“I am allowed to have a gun in my home to defend myself and my family,” he said. “It seems unfair that good, decent people in a poor economic situation can’t defend their property. I think our constitution should not only apply to people who own their own homes, but to people who live in public housing as well.”

HB 357 defined

According to its synopsis, HB 357 is intended to “address the banning of possession of firearms by certain governmental agencies and entities of the State. Currently, several housing agencies in this state have adopted policies of evicting or threatening to evict law-abiding tenants from their homes merely for the otherwise lawful possession of firearms for self-defense. This practice constitutes discrimination based on economic circumstances leaving these residents at the mercy of criminals.”

The legislation will amend Title 29 of the Delaware Code, which addresses the function of state government, by adding a new chapter that limits the authority of public bodies to regulate arms.

“No public body in this state shall have or exercise the authority to regulate, prohibit, restrict or license the ownership, transfer, possession or transportation of arms, firearms, components of firearms, ammunition or components of ammunition except as expressly and specifically authorized by act of the General Assembly,” the bill states. “Nothing contained herein shall be construed as negating or precluding standard security measures controlling physical access to governmental buildings, offices or institutions.”

It defines public bodies as “any regulatory, administrative, advisory, executive, appointive, or legislative agency or body of this State, or any political subdivision thereof, including, but not limited to, any, board, bureau, commission, department, authority, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, association, group, panel, council or governmental entity,” created by the General Assembly, or appointed by a public official, which receives government funds.

It specifically excludes the General Assembly from coverage, allowing lawmakers to retain the authority to regulate firearms.

READ THE SPECIAL REPORT: “Disarmed by Decree”

PDF Version: for printing, slower to download

HTML Version: loads faster, no photos

CRI Blog Version: story, photos and access to reader comments

Read the entire series in CRI’s Special Reports section.

Subscribe: to CRI to receive email updates about this story and other issues

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Feb.18, 2010 by the Caesar Rodney Institute

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The Technology Forum of Delaware and the Delaware BioScience Association

present a panel discussion on “The Social Media Revolution, from 5:30

to 8:30 pm today at Harry’s Savoy Grill, 2020 Naamans Rd

in North Wilmington.

Using tools like LinkedIn, Facebook, and Twitter can help you listen to your

customers, engage in the marketplace, and grow your business. Whether you

are using social media on a regular basis or have never tried using these tools,

you will want to know how people are communicating faster and more effectively

than ever before. The panel will start with the basics, get everyone up to speed

on how these tools are used and take a look at where this is going.

Scheduled speakers at this event are:

  • Gigi Peterkin, Associate Director of Interactive Media, AstraZeneca
  • Elizabeth Browning, Founder and CEO, Lluminari
  • Laurie Gelb, Senior Consultant, Marketing Strategy & Research, Trellist Marketing | Technology
  • Ken Grant, Sales and Marketing Director, Analtech
  • Whitney Hoffman, CEO, Hoffman Digital Media, LLC

Previous TechForum DE and Delaware BioScience Association events have attracted over 100 individuals providing for great networking.

WHAT: Social Media Training and Discussion for Technology and BioScience Companies

WHEN: Wednesday, Feb. 17, 5:30 – 8:30 PM

WHERE: Harry’s Savoy Grill, 2020 Naamans Road, Wilmington, DE

The Media is invited to attend and cover this event.

The Social Media Revolution is sponsored by Trellist Marketing | Technology, one of the Mid-Atlantic region’s leading marketing and technology professional services firms.

For more information or to register in advance, visit www.techforumde.org.

About Trellist Marketing | Technology

Trellist helps clients reach business goals by providing standalone and integrated marketing, design, technology and staffing services. Founded in 1995 with a growing staff of over 50, the firm serves a regional client base and national firms from the Wilmington, DE Riverfront. www.trellist.com

About the Technology Forum of Delaware

The Technology Forum of Delaware is the Delaware Valley’s premier organization for technology, business and entrepreneurial leaders. TechForum DE helps businesses and individuals acquire the knowledge, relationships and resources needed to succeed in a global economy. www.techforumde.org

About the Delaware BioScience Association

The Delaware BioScience Association is a non-profit trade association that serves its members and the State of Delaware by collaborating with other local businesses and organizations to advance the growth of the bioscience industry in Delaware and the region. www.delawarebio.org

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Green Jobs v. Red Tape

By Shaun Fink

As this year unfolds, we will hear a lot of talk about creating new “green” jobs to contribute to our state economy. In advance of the cacophony, let’s examine exactly what we are talking about when we use the term “green” before the word “jobs”. As neat and packaged as the phrase seems to be, there is quite a bit of ambiguity surrounding the definition of green jobs. Generally, jobs related to renewable energy sources, energy efficiency, battery-powered or other alternatively fueled vehicles, and public transportation comprise most of what are currently considered green jobs. Beyond that general scope, however, it starts to get blurry.

For example, should jobs in the nuclear industry count as “green”? After all, nuclear plants generate electricity with virtually no air pollution or greenhouse gas. And yet, these positions are rarely considered worthy of such a lofty title. To make matters worse, many so-called green jobs are only considered so occasionally. What about workers who produce steel or cement? Think about this for a moment. Delaware Congressional candidate John Carney was promoting his involvement in the green energy field through a company called DelaWind. What has this business proposed to do? The main product of Carney’s company is supposedly going to be the steel structures that the wind turbines would sit on 12 miles out to sea in our very own offshore wind farm. Steel fabrication now counts as “green”? Well, it does when it is beneficial to do so. Funny how this same industry is considered harmful to the environment when in the process of building a coal-fired power plant.

To further confuse the point, the definition of green can change over time. Remember when ethanol was in high demand? Remember when Governor Minner insisted this was the way of the future? It followed suit that every job associated with this industry was considered green, including the corn production. Now, our environmental friends are having second thoughts about the merits of ethanol as an alternative fuel source, and those jobs are not quite so green anymore.

The truth of the matter is the definition of green jobs is much more a function of political correctness and fads then it is a process of a substantial matrix of well established criteria. In the end, it is a political shell game designed to hide the exorbitant costs involved in re-inventing our economy and way of life to fit some pre-conceived and misguided notion of purity and conformity. And now that federal money is involved, states without a firm sense of economic direction and lacking in fiscal responsibility and accountability are clamoring to eat at the table of Government Subsidy. How do you effectively vie for the money? Simple, label every job possible as “green”. In doing so you increase your take from the federal dole and get to serendipitously claim that you are closing the massive state budget deficit, while all along the only real accomplishment is an ever-increasing dependence on a centralized government for your well-being and sustenance. In case anyone has missed the subtle nuance, Delaware is one of those states. Why are we banking our economic future on government subsidized industries? And why is it being sold to us as job creation?

If this administration was truly concerned with creating jobs, it would step aside and acknowledge that the government is not the solution and cannot be the source of our prosperity. Allow those who own businesses to expand by offering substantial tax incentives for capital expenditures and new job hires. Incentivize entrepreneurs to create new businesses by proposing a system of pro-rated taxation for the early years of a start-up company where the first two years are practically tax free and gradually rise to the standard over a five year period. Help to assuage some of the risk involved in business growth by increasing the positive effect that an economic loss has on a tax return. Exempt certain small businesses from the ballooning costs of workmen’s compensation and do not require short-term disability insurance. These initiatives, or any combination of them, will help stimulate job creation by establishing a more conducive entrepreneurial environment. This will encourage a expansion of the tax base through more and bigger businesses. More business means more tax revenue; and amazingly enough the converse is true, as well. If we want to increase revenue, then let’s encourage growth. Allow the market place to determine where jobs should be created and we will all once again thrive in our communities and the state as a whole. And this time, once jobs are being created and the economy is roaring again, we might want to think about curbing our spending appetites.

Subscribe to CRI to receive email updates about this story and other issues

Shaun Fink is Executive Vice President of the Caesar Rodney Institute.

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Feb. 16, 2010 by the Caesar Rodney Institute

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            Probably the last time in our history people thoughtfully considered the purpose of government was during its formation.  While forming the Declaration of Independence, the Articles of Confederation, and the Constitution ample time was spent determining the form of government.  The idea of limited federal government was considered critical to maintaining individual freedom and local control. 

            The Founders limited the scope of the federal government to the Departments of War and State for security, the Attorney General to maintain the Rule of Law, the Post Office, and the Treasury Department for funding.  The first budget in 1792 was $5.1 million, 2.4 % of estimated GDP.  Most of the budget, $3.2 million, went to pay interest on war debts.  When the last of the Presidential Founders, James Monroe, left office in 1825 the budget had been reduced to 2.1% of GDP.  The national debt had largely been paid off. 

            By 1916 the budget looked pretty much the same at 2% of GDP but a major change had come a few years before.  The 16th Amendment was ratified in 1913 allowing the federal government to tax income.  The initial rates ranged from 1% to 7%.  By 1918 the rates had increased to 6% to 77%!  Rates dropped in the twenties but spending never dropped below 3.5% of GDP. 

            The proposed 2011FY budget is $3800 billion, 27% of GDP, with revenue of $2600 billion.   How big would our budget be if the Founders wrote it.  One answer is to simply use 2.4% of GDP like the 1792 budget yielding a budget of about $370 billion, one tenth the actual budget.   

            Another way to look at this is to accept the Founders definition of the role of government but use FY2011 numbers.  The budget would be about $1300 billion, 8.8% of GDP.  That leaves $2500 billion in proposed spending the Founders never envisioned and only $1300 billion in revenues to pay for those items. 

            So called Progressives governments, both Democrat and Republican, have had legislative successes creating massive government involvement in our lives but have never convinced us to pay for their agenda.  For example, welfare programs and Medicaid started as part of Lyndon Johnson’s Great Society have never been funded.  The welfare reform bill of 1994 reducing these programs was one of the most popular bills in my lifetime.  It was completely reversed without debate in last year’s stimulus bill.  Every time taxes approach twenty percent of GDP voters switch to the party that promises tax cuts.  It is way past time to once again thoughtfully consider the proper role of the federal government. 

David T. Stevenson

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One Dover Housing Authority commissioner is seeking legal advice, saying if the gun bans are illegal, they should be withdrawn.

By Lee Williams

C.D. “Chuck” Michel is a hero to many within the firearms community, and one of the country’s top Second Amendment litigators.

He’s worked tirelessly to defend the right to keep and bear arms in a state where it is constantly under attack. A former prosecutor in the Los Angeles County District Attorney’s Office, Michel served as lead counsel on more than 50 jury trials.

It is his Second Amendment work, however, that leaves the Long Beach-based attorney with few peers.

C.D. Michel

Michel and other Second Amendment experts and scholars have been watching events unfolding in Delaware, after the Caesar Rodney Institute revealed the state’s public housing authorities ban their tenants from owning firearms.

Michel had strong advice for the executive directors running the three remaining agencies with active gun bans.

“Don’t waste scarce resources fighting a losing battle,” he said. “You’re not saving lives. You won’t encourage any additional crime by allowing people to have the most effective means of self defense.”

Michel’s track record of successful Second Amendment litigation buttresses his recommendation.

He represented plaintiffs in Fiscal v. City and County of San Francisco, in which the court struck down the city’s referendum prohibiting the possession of handguns and the sale of guns and ammunition.

Michel co-authored an Amicus brief for the country’s most significant gun-rights case to date, District of Columbia v. Heller, which determined that the Second Amendment provides a fundamental and individual right to bear arms.

He co-authored an Amicus brief on behalf of 34 California District Attorneys, eight Nevada District Attorneys, plus scores of law enforcement officers and gun rights groups for McDonald v. City of Chicago, which will be argued before the U.S. Supreme Court next month. In McDonald, which could surpass Heller in significance, the petitioners are seeking “incorporation” of the Second Amendment’s protections to not only federal government actions, but also to local and state gun control laws.

Just hours after the Heller decision, Michel filed suit against the San Francisco Housing Authority (SFHA), which like the housing authorities in Wilmington, Dover as well as the Delaware State Housing Authority, had bans prohibiting individual firearm ownership incorporated into its leases.

His reasons for filing the suit were twofold. He sought to legally force the incorporation issue, which will be decided in McDonald.

“I also wanted to restore the rights of the people living in public housing,” he said.

Michel filed a 1983 Civil Rights action against the SFHA, the City of San Francisco and a property management firm, claiming the residents’ Second Amendment rights were violated – the same legal tactic experts say could be employed against the housing authorities in Delaware, if their bans are not withdrawn. This type of federal civil rights action allows successful plaintiffs to recover both damages and attorney’s fees.

Eventually, the city was dropped from the suit.

“We then kept going against the housing authority and the property management firm,” Michel said. “Eventually, both agreed to amend their leases. In exchange, we agreed not to pursue attorney’s fees or damages.”

Had the SFHA not settled, Michel would have litigated the constitutionality of the ban, based in part on the Heller decision.

“At the end of the day, they’d have had to pay damages, and $300,000 or $400,000 in attorney’s fees,” Michel said. “When I sued the City of San Francisco over their firearms ban, they wrote me a check for $300,000.”

Legally, the issues raised in the San Francisco suit are very similar to the issues raised by the gun bans in Delaware, Michel said.

“I don’t know why the people in Delaware are trying to drag their feet,” he said. “Why are they bothering? All it will do is cost them damages and attorney fees. Do they feel lucky? I don’t understand the logic. It’s probably more of a bureaucratic deer-in-the-headlights, rather than organized resistance. That’s what happened in San Francisco. It took them a while.”

The Dean

Washington D.C.-based attorney Stephen P. Halbrook, Ph.D., has been described as the “Dean of Second Amendment Litigators.”

A prolific author, Halbrook literally wrote the book on defending the Second Amendment. In fact, he’s written several books on the topic, including; “That Every Man Be Armed: The Evolution of a Constitutional Right,” published by The Independent Institute, 1984, 1994, 2000; “Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876,” published by Greenwood Publishing Group, 1998; “A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees,” published by Greenwood Press Inc. 1998; and “Firearms Law Deskbook: Federal and State Criminal Practice,” published by Thomson/West Group, 2009. Previous editions with annual supplements were published by Clark Boardman Callaghan/West Group, 1995-2007.

Stephen P. Halbrook, Ph.D.

In addition to his writing, lectures and casework, Halbrook has been involved in the two most notable firearms suits Heller and McDonald.

Halbrook said if the housing authorities don’t withdraw the bans, and the National Rifle Association files suit on behalf of the tenants, the NRA will likely prevail.

“The bans are illegal. In fact, they were even illegal before the U.S. Supreme Court’s ruling on Heller,” Halbrook said. There’s a well-established body of federal case law saying the fact someone gets an entitlement or state benefit can’t be used to make them forfeit a right or privilege that other people have. Just because someone lives in public housing, doesn’t mean they have to give up their right against search and seizure.”

The housing authorities’ legal position post-Heller, he said is much flimsier.

“It’s even worse for the housing authorities now since the Supreme Court got involved. For them to say these people don’t have a constitutional right just because they need public assistance is totally beyond the pale,” he said. “I think these regulations are illegal. If they’re litigated in court, they’ll be easily thrown out.”

Like Michel, Halbrook predicted the housing authorities, and ultimately the taxpayers, will be left holding the bill for the trial expenses.

“That’s the nice thing about the Civil Rights Act. Attorneys fees are recoverable,” he said. “The housing authorities will have to pay the attorney fees of the prevailing party, which will be the tenants.”

It is the cost to the taxpayer that Dover attorney John Sigler said has been overlooked in the discussion about the gun bans. Sigler is a board member of CRI and the NRA, and a former NRA president.

“The shame of this entire issue is that no one seems to be focused on the financial impact these bans have had on the taxpayers of the State of Delaware. Not only are taxpayer dollars being used to create these bans, but taxpayer dollars have also been spent enforcing these bans,” Sigler said. “Someone should be asking how much in terms of attorney fees, court filing fees and litigation expenses have been diverted from the true and important work of providing affordable housing for Delaware’s less fortunate citizens? How many tens of thousands of taxpayer dollars have been spent by the Dover Housing Authority over the admittedly 16-plus years enforcing its “one strike and you’re out” eviction policy? And how many tens of thousands of taxpayer dollars have been spent enforcing similarly unconstitutional and immoral bans by the Wilmington Housing Authority, Newark Housing Authority and the Delaware State Housing Authority over the years that their bans have been in place?”

John Sigler

The taxpayer dollars spent enforcing the bans will pale when compared to the hundreds of thousands of dollars that will be spent if litigation is launched.

“Every taxpayer in the State of Delaware, be they businesses or individuals, should be outraged by the prospect of having these three governmental entities – Dover Housing Authority, Wilmington Housing Authority and the Delaware State Housing Authority – spending literally hundreds of thousands of additional taxpayer dollars in defense of an indefensible policy while simultaneously exposing the Delaware taxpayer to additional hundreds of thousands – if not millions – of dollars in compensatory and punitive damages and plus the other side’s costs and attorney fees paid to them as winners, all of which can be avoided simply by following the law and, as [NRA Chief Lobbyist} Chris Cox said, ‘doing the right thing,’” Sigler explained.

A voice for change

Dover City Council President Beverly Williams has served on the Dover Housing Authority board since 1982.

She learned the DHA banned guns after CRI published the first installment of its ongoing special report.

“If the ban is in violation of the Constitution, I would want to do things to correct it right away, so as it does not become adversarial,” Williams said. “Right now we need information, but if the ban violates people’s constitutional rights – nothing, no rule should go past the constitution. I am speaking as a single commissioner, but I don’t believe any commissioner wants to be adversaries, but rather collaborators.”

Williams said she is not a member of the NRA, but is “well aware of what they are trying to do. I understand and appreciate their goals.”

The intent of the ban, she recently learned, was to “hold safe all residents. The large majority of our residents are good people who work hard to support their families.”

Now, she and other board members will be seeking information about the ban, and whether it violates the state and federal constitution.

“We don’t have enough information to know. The Dover Housing Authority is pretty progressive in trying to get services and resources for our tenants,” she said. “I would imagine this was an information lapse. I would imagine we’ll uphold the constitution, and we’ll attempt to amend our internal rules to protect our residents as much as we can, and at the same time not violate anyone’s rights.”

Another lawmaker supports change

Delaware Rep. Ruth Briggs-King, R-Georgetown, has joined an ever-growing group of state lawmakers who have pledged to support legislation that will overturn the gun bans.

Briggs-King is a gun owner and a strong supporter of the Second Amendment who secured an “A” rating and an endorsement from the NRA.

“These people in public housing, they try to overcome discrimination all the time,” she said. “Now they can’t hunt, can’t get venison, can’t defend themselves? Anyone has the right to keep and bear arms. To ask them to give up this right because they live in public housing is unfair. It’s a basic right, and they’re treating them differently.”

READ THE SPECIAL REPORT: “Disarmed by Decree”

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Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Feb. 12, 2010 by the Caesar Rodney Institute

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