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 email@example.com
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