Archive for the ‘Civil Rights’ Category

This week is National School Choice Week, a week where we draw attention to the need for parents and families to have School Choice as an option for all students.

No doubt this week is under fire from school choice opponents who worry school choice is a corporate, Koch-brother funded project to destroy public schools and, more importantly, public teacher’s unions,but those of us who believe in “free to choose” ask just one question:

1. “Who is more likely to make a better decision about a child’s future: That child’s legal guardian, or elected and unelected officials in state capitals and Washington D.C.?”

If you believe government officials, union leaders, school boards, superintendents, Department of Education employees, and politicians can all make a better decision about your child than you can, school choice is not something you will support. But if you believe schools should be run at the local level, with fewer mandates from above and more support for those who are there day-to-day, and if you believe students are unique human beings who should not be forced into “one-size-fits-all” based on their parents’ financial ability to find another school, then school choice week is for you.

If you believe there should be accountability for performance in our education system, without automatically blaming teachers and parents for poor performance, instead of the system which has been created, school choice is for you.

If you believe public schools who wish to have your child attend should have to work hard for your tax dollars, like every non-monopolized market in the private sector (i.e. sectors where companies use government to give themselves business or hurt competition), instead of requiring children whose parents aren’t rich to go to a school based only by their zip code, school choice is for you.

If the thought of stagnating academic performance, the rising number of students who enter college needing to take remedial classes, and the high drop-out rate for both high school and college bothers you, school choice is for you.

If you believe money spent on education, where Delaware spends to the tune of $13,000 per student per year and $16,500 if you include capital spending (refurbishing or building schools, source: DE DOE), ought to be spent efficiently and with the student’s best interest at heart, school choice is for you.

If you feel genuinely heartbroken every time you hear about another shooting in places like Wilmington, and know most of those young people get involved in drugs and gangs because they don’t have hope for a better future, school choice is for you.

If you are concerned about the values being spread in society at large, and would like to see your child(ren) be placed in a school setting which is closer to the values you wish the child to learn, school choice is for you.

If you believe America is a great nation with a lot of untapped talent among our youth, and want to see students use their talents in the best way possible, school choice is for you.

And lastly, If you believe a high-quality education is a fundamental right for each child to have, then school choice is for you.

If you believe school choice is something we can all work for together, then join the Caesar Rodney Institute in celebration of National School Choice Week, and let’s support #SchoolChoice!

Why do you support school choice?

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The College Board recently released new SAT data for 2013-2014 and for Delaware it doesn’t look any better than last year. On the positive side Delaware is no longer 51st in SAT scores and 16th out of 16 “High Participation Rate” states and D.C. (70% or greater participation). The state moved to 50th this year and 15th out of 16, surpassing Washington D.C. in both categories.

Total average SAT scores, class of 2013-2014:

Critical reading: 456

writing: 444

math: 459

Total: 1359

For college-bound seniors the numbers improve slightly:

Critical reading: 497

writing: 487

math: 513

Total: 1497

The number best estimated to predict success at the college level is a total score of 1550 for the entire SAT. Delaware scores nearly 190 points below average. 26 out of 51 states and D.C. reach this 1550 threshold. The CATO Institute studied Delaware and factored in the mandatory SAT testing, and even weighted we are still near the bottom. Even when factoring in only high school seniors who attended any college institution this year, the average scores were still below 1550.

Another interesting note: for college-bound seniors, writing scores dropped 10 points from 2006 for both boys and girls, and both boys and girls score 32-34 points lower respectively in reading than in 1972. Math was up 4 points combined since 1972, with girls making slightly bigger gains.

Excluding the writing section, in 1972 the average college-bound high school senior in Delaware earned a 1039 on their SAT’s, while the class of 2014 had a mean of 1010. Meaning, we’ve DROPPED in proficiency, particularly in reading, from the 1970s. Remember, these are seniors who went to college this year. We aren’t counting those who didn’t go.

The only real way we can move forward is to agree that only a robust range of education options for children will allow children to learn as best they can. A one-size-fits-all public school model does little to understand that some students do better in bigger classrooms, others smaller. Some students may do better with the parent as a teacher and for others cyber school may be a better choice. Even among charter and magnet schools there are diverse options, such as the First State Military Academy set to open in Clayton later this year, which is a Junior ROTC program charter school for which some students will benefit from more than others who enter. For some kids and parents issues like safety, school hours, or programs will determine the best options.

The point is we want a system which allows parents or the children’s legal guardians to choose the place best suited for the kids. There is absolutely no reason a child’s fate should be determined by their zip code or that a child should attend a school which either a) is not serving them properly, or b) is not suited to the child’s best method of learning, simply to appease those whose primary interest is keeping the system as-is.

It’s time we made education options available for all children. Visit our website www.caesarrodney.org and sign up for our e-mail newsletters. See what you can do today to make tomorrow’s education a better experience for all children.

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2015 will soon be upon us and for those who are passionate defenders of freedom and liberty our work just goes on when the clock strikes midnight. Here is CRI in review and our goals for 2015:

  • Dave Stevenson’s lawsuit against DNREC and former DNREC Secretary Collin O’Mara is still ongoing. Dave and the other three plaintiffs, including CRI Director John Moore, won standing to continue their lawsuit. We will refrain from making a prediction on a court ruling less we jinx the lawsuit but we are optimistic the Plaintiffs will win. This is because in order to get standing the Plaintiffs had to prove they had a valid reason to sue in the first place, such as being aggrieved by the Defendants actions. Winning means stopping DNREC from changing the rules on how many carbon permits can be sold at carbon auctions, saving Delaware taxpayers over $100 million a year in increases in utility bills.
  • We testified in favor of HB353, the Parent Empowerment Education Savings Account Act (PEESAA). Jim Hosley, our former CEE Director, spoke in favor as did a dozen Wilmington parents and grandparents (and one student!) and the leaders of Tall Oak Classical Academy. The bill was tabled in the House Education Committee, a move we are unfortunately not surprised by. However, we hope 2015 will be a better year as more and more people realize the need to improve Delaware’s education system, and the only effective way to make the changes our students need to be prepared for the future is to provide parents with school choice options to do what’s best for the child. CRI will always maintain the belief that parents and/or legal guardians can make a better choice about their children’s education than politicians and bureaucrats in the state Department of Education.
  • We brought in Dr. Bartley Danielsen, business and economics professor from North Carolina State University to keynote our Sixth Annual Dinner. Dr. Danielsen has proposed a theory tying in environmental benefits to school choice. The basic theory is, parents moved to the suburbs to flee poorly performing public schools which left a lot of people uneducated and unable to find respectable work, and many turned to crime as a result. His theory is if inner city schools were to improve their quality, many families would move back to the cities from the suburbs and the result would be a reduction in traffic and environmental pollution from people driving from the suburbs to the cities. View is presentation here and here

In addition to these challenges, we still have issues Delaware must resolve in order to improve our economy:

  • End to the prevailing wage which makes public construction costs so expensive many end up getting no work at all. See: Rockwood Museum.
  • A Right to Work law for Delaware. Union leaders are pushing the “scab” theory that somehow union members will drop out and reap all the benefits the union “works” to get. We have responded by noting that a) manufacturing businesses have responded by moving factories elsewhere, depriving Delawareans of job opportunities. See: loss of auto industry, Valero plant, Evraz Steel plant, Georgia Pacific plant. b) as a moral issue, should union bosses have the right to take someone’s money just because someone works at a particular location? What if the union bosses don’t serve their member’s needs, such as organizing or donating to political causes or candidates the members don’t support?

We wrote: “While in the short run unionization may force wages up for those involved, in the long run closed shops reduce capital spending and induce the out-migration of jobs and workers.”

Read HERE and HERE and HERE

  • tax reform. Delaware is one of just five states with a gross receipts tax (tax on sales, even before factoring in profit/loss and expenses). Three of the other four don’t have an income tax and the only state with both like Delaware is Virginia who has lower tax rates. Coupled with high corporate and personal income taxes while Nevada and North Dakota compete with us for corporate business, and without reforms we will see money and jobs leave the state at even higher numbers.

Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy New Year to all. Let’s be thankful for a good 2014 and hope for better things in 2015.

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NEFW logoNEFW 2014 infographic

Original post from the National Employee Freedom Week movement http://employeefreedomweek.com/state/delaware/

National Employee Freedom Week takes place every August; this year workers’ rights to not be forced to pay union dues as a condition of employment takes place August 10-16.


Because Delaware is not a Right-to-Work state, your freedom to leave your union is restricted, but you still have options to leave or reduce your union membership.

The first option is to become an agency fee payer, which means you only pay dues for the union’s cost of collective bargaining, contract administration and grievance adjustment. As an agency fee payer, you do not pay for any other activities, including the union’s political activities.

As an agency fee payer, you are not a member of the union, but since you continue to pay the “representative” portion of your dues, the union must continue to represent you fairly and without discrimination in all matters subject to collective bargaining.

As an agency fee payer you are still entitled to every benefit under the labor contract with your employer, including health care, pension, step increases, etc.

A generic letter to become an agency fee payer is here. You will need your union’s address and contact information. We recommend that you make a copy of your letter and either deliver it in person and receive a stamped copy or mail it with Certified Mail Return Receipt Requested Signature. This protects you in case, a union boss “loses” your letter. We also recommend sending a copy of the letter to your employer’s payroll department.

Although the generic agency fee payer letter includes text noting that your objection is continuing and permanent, some unions will not respect this and will make you annually resubmit your refund request.

For a smooth exit, you may have to leave during specific opt-out timeframe or “window.” Ask your union for a copy of your signed enrollment form to determine when your window is.

Download a generic agency fee payer letter.

The second option is to become a religious or conscientious objector. If you would like to become a religious or conscientious objector, go to ChooseCharity.org. ChooseCharity.org includes a simple application process that requires no additional out-of-pocket costs.

Once the application is submitted, the ChooseCharity legal staff will take care of the rest of the process.

If you become a religious or conscientious objector, your full dues equivalent will be deducted but made payable a charitable fund exempt from taxation under Section 501(c)(3) of Title 26 of the Internal Revenue Code. You will not be a member of the union, but are still entitled to every benefit under the labor contract with your employer, including health care, pension, step increases, etc.

If you think you may want to become a religious or conscientious objector, it is important that you do not request to be an agency fee payer.

State laws can differ depending on your profession, please consult with an employee rights organization if you have questions about your specific situation.

More Information About Your Rights

All Employees:

National Right to Work Legal Defense Foundation

Workplace Fairness Institute

Your Rights (Center for Union Facts)

Unions and Union Dues (American Center for Law and Justice)

For Teachers:

Teacher Rights (AAE)

Coalition of Educators Against Forced Unionism


The bottom line is you, as an employee, should not be forced to pay dues to any entity you do not choose to without your consent. There is a reason private sector unionism is down: while pro-union proponents blame entities like CRI for being “anti-union” the reality is that the biggest push to end forced unionization comes from the employees themselves who are unionized and who see hundreds or thousands of union dues dollars taken from worker’s paychecks, especially at a time when household incomes are shrinking, to support political causes or union activities the rank and file do not agree with.

If you are interested in learning more about how you can legally leave your union and not pay union dues but still keep your job, please click on the links or call us at (302) 273-0080 or e-mail us at info@caesarrodney.org.

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Please read the following guest post from Larry Koch, special contributor on for the Center of Education Excellence at the Caesar Rodney Institute.

One of the reasons I retired from educational administration from a rural Maine school district was a cynical method to increase taxes that a number of my colleagues engaged in. This is how it worked:

1)        The town, usually fed up by double digit increases, would demand that the district lowered expenses by let’s say 2%. This should not have been a difficult task to do in a multi-million dollar budget.

2)        After a number of hearings (to show that they tried) the Superintendent would come out with a proposal that would cut sports, after school programming, AP classes and special education.

3)        The constituency groups for all of these programs would show up, howling for their children, at every board and town meeting, until-far too often- the proposed cut was dropped, and often a tax increase was agreed to.

The reason this scenario was so cynical was that it had been choreographed in advance, and concerned parents were manipulated into doing something that was destructive to the community, and ended up with farms being closed and people defaulting on their taxes. Education was not advanced, and the bureaucracy was engorged. School officials could have surgically applied cuts so essential and popular programs were saved, but they chose not to do so! Yes, they would have been criticized by somebody, but that is why they got those inflated salaries; to show some leadership!

Instead they turned the most active consumers of public education, the parents, in effect against the most economically vulnerable people in the community, seniors and struggling family farmers, in a conflict that leaves the community weaker and in no way improves learning. 

That is basically the scenario for the sequester debate. Our 16 trillion dollar government with some imagination should be able to absorb a cut of 2%. Instead, the administration plans on across the board cuts, highlighting the effects it will have on schools, the disabled, transportation, etc.,. The government, if it showed some leadership, could identify areas where little damage would result from reducing expenses, but refuses to do so, unless taxes are raised. This is a cynical- after the fact – grab for more money; the sequester legislation never mentioned a tax increase, but Obama would never allow an opportunity for this to pass without notice. Sequester would allow the president and departments to fine tune their cuts, as long as it came up to the required amount, but they have chosen not to do that without a tax increase.

Just like that school district, Washington’s continuing, insatiable demands for endless growth is demanding to be fed, and a cynical method has been employed to achieve that end. This was bad enough when it was done locally by petty school administrators- but now Washington has taken a leaf from their book! How pathetic!

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John Nichols, the plaintiff involved in the suit against Governor Markell and five members of the Public Service Commission, has filed a suit in New Castle County Superior Court against the Coastal Zone Industrial Control Board (CZICB). This is in direct challenge to the CZICB’s rejection of John’s allowance for standing in the case. The board ruled 4-3 around 10:30 AM on June 13th that John had standing, but at 4 pm on the same day voted 5-0 with 2 abstentions to say John didn’t have standing after all. The debate centers on whether John can be considered an “aggrieved” person since Bloom’s “energy servers” have not actually been built yet. John’s argument is that since these boxes, based on studies and evidence presented at the hearing, WOULD harm the environment and Delmarva Power ratepayers, he will be directly harmed by the CZICB’s decision to deny him standing. If the Superior Court finds in John’s favor, the CZICB would be required to go back and review the case based on the science of the “energy servers”, and John would be considered to be an aggrieved individual in this case.

A copy of the complaint:





V. CA. N0. N12A-07-







Appellant John A. Nichols (“Niohols”) hereby takes appeal pursuant to  Del. C. § 7008

and Superior Court Civil Rule 72 from the decision announced by the State Coastal Zone

Industrial Control Board (“B0ard”) on Wednesday, June 13, 2012 which denied him standing to

pursue an appeal of the grant of a permit application to Diamond State Generation Partners, LLC

by the Delaware Department of Natural Resources And Environmental Control on the grounds

that the evidence in the record established Nichols possessed standing under the broad “any

aggrieved person” statutory scope of 7 Def. C. § 7007(b).


Attorneys for Appellant John A. Nichols
Dated: July 2, 2012

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A bill to allow residents of Delaware’s public housing communities to possess firearms was passed Tuesday by the House, with broad bipartisan support.

House Bill 357, sponsored by Rep. John Atkins, D-Millsboro, and Sen. Joseph Booth, R-Georgetown, was introduced in response to a series published by the Caesar Rodney Institute titled: “Delaware Public Housing: Disarmed by Decree.” The series revealed that all public housing residents in Delaware are banned from owning firearms, despite the fact that many live in high-crime areas.

In addition to the legislation, the series also prompted a lawsuit by the National Rifle Association, which recently filed suit against the Wilmington Housing Authority, seeking to force the agency to drop its gun ban.

HB 357, which must now go to the Senate, states:

No public housing authority operating within this state shall have or exercise the authority to regulate, prohibit or otherwise restrict a lessee/tenant of a dwelling owned and operated by such public housing authority from lawfully owning or possessing ammunition, arms or components thereof in such dwelling for the defense of self, family, home and State, and for hunting and recreational use and transporting such ammunition, arms or components thereof to and from such dwelling.

The bill includes an amendment, which was narrowly passed by the House, that will allow the public housing authorities to prohibit firearms in common areas of their properties.

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The National Rifle Association’s lawsuit could be the first of several legal actions taken against Delaware housing authorities with active gun bans.

By Lee Williams

WILMINGTON, Del. – The National Rifle Association filed a civil rights lawsuit today against the Wilmington Housing Authority (WHA) and its executive director Frederick S. Purnell, Sr., seeking to force the WHA to allow its residents to possess firearms within their homes.

The civil rights lawsuit was filed in the Delaware Court of Chancery by Wilmington Attorney Francis Pileggi, the founding partner of Fox Rothschild LLP’s Wilmington office.

Francis Pileggi

The question before the court, Pileggi said, is “whether or not residents of a public housing authority can be deprived of their Constitutional right to bear arms for self defense.”

“I think it’s important to remember that the Second Amendment rights being championed here are the first example of civil rights dating from the time of the Civil War,” Pileggi told the Caesar Rodney Institute. “The Second Amendment is just as important as any other amendment in the Bill of Rights.”

Pileggi first learned the WHA banned its residents from owing firearms after reading a special report by the Caesar Rodney Institute titled “Delaware Public Housing: Disarmed by Decree.”

CRI’s report revealed that many public housing residents feel trapped in their homes because of crime in their communities, yet they are prohibited from owning firearms for self-defense.

Pileggi filed the suit on behalf of a WHA resident identified only as “Jane Doe.” He said this was done to protect the individual from possible retaliation by WHA officials.

“We are going to be very vigilant,” Pileggi said. “If [retaliation] occurs, we will react properly.”

Doe told the Caesar Rodney Institute she became involved in the lawsuit “to benefit this generation and the generations to come.”

“My generation is about gone,” she said. “The current generation needs the help.”

This is not the first time the NRA – the nation’s oldest civil rights organization – has sued a public housing authority for a gun ban it believed violated the residents’ Second Amendment rights.

The NRA recently settled a lawsuit against the San Francisco Housing Authority, forcing them to remove a firearms ban that was very similar to the bans on the books in Delaware. Several years ago, another NRA suit forced a public housing authority in Portland, Maine to remove their firearms prohibitions.

Dover attorney John Sigler is a CRI board member, immediate past president of the NRA, and a current NRA board member.

“I am deeply saddened to learn that Delaware’s public housing authorities have continued to so steadfastly refuse to restore their law-abiding public housing residents to full citizenship under either the Second Amendment of the United States Constitution or Delaware’s own Constitution, thus making such litigation necessary,” Sigler said. “It is, indeed, a sad day when law-abiding citizens are forced to turn to the courts for vindication of constitutionally-protected rights, and to seek the protection of the courts from the wrongful conduct of governmental authorities who should know better, and who have been repeatedly warned to reform their conduct and their misguided and clearly illegal policies.”

WHA executive director Purnell was not willing to be interviewed for this story.

The Argument

According to documents filed with the court, Doe is described as a WHA resident and as a “responsible law abiding adult who is qualified to own firearms in her home for lawful self defense and other lawful purposes. But for the lease provision, she would forthwith lawfully possess a firearm in her home without the threat of eviction.”

“We’ve conducted a background check and other due diligence to satisfy ourselves she would qualify to purchase a firearm,” Pileggi said.

In the complaint, Doe is asking the court for a declaratory judgment forbidding the housing authority from banning firearms because the action violates the Second and Fourteenth Amendments to the U.S. Constitution, as well as Article 1 Section 20 of the Delaware State Constitution. In addition, the complaint states the gun ban is preempted by existing Delaware law, and exceeds the statutory authority granted to a public housing authority.

That the WHA’s gun ban violates the state constitution, Sigler said, is obvious.

“Article I Section 20 of the Delaware Constitution states: ‘A person has the right to keep and bear arms for defense of self, family, home and State, and for hunting and recreational use.’ It says nothing about the right of governmental agencies and self-important bureaucrats having the right to deprive the poor, the elderly, the disabled, or the socially disadvantaged of their rights simply because of their social and economic status,” Sigler said. “On the contrary, the courts have, time and again, held such social and economic discrimination to be illegal and unconstitutional.”

History of the Delaware gun bans

The Caesar Rodney Institute first revealed that every housing authority in the state prohibited its residents from owning firearms in its special report published Feb. 1.

The report included interviews with public housing residents, a mere handful of the thousands of Delaware’s most vulnerable residents who are forced by their socio-economic status to live in some of the state’s most dangerous neighborhoods, several of which are open-air drug markets.

Violating the gun ban, the residents told CRI, could result in immediate eviction. For many families, an eviction from public housing would leave them with nowhere to go but the streets.

There are already plenty of guns in public housing, these residents said, but they’re in the hands of criminals who pay no heed to state law, much less housing authority rules or regulations.

CRI’s report included copies of leases that clearly banned firearms at all four of the public housing properties.

After CRI’s initial report was published, NRA General Counsel Robert Dowlut sent letters to the executive directors of the housing authorities, warning them litigation was likely if they did not rescind their bans.

“It has been brought to our attention by members of the National Rifle Association and by the Caesar

Rodney Institute that the Dover Housing Authority, Newark Housing Authority, and Wilmington Housing Authority contain lease provisions that prohibit a resident from possessing a firearm. Such a restriction is unconstitutional,” Dowlut wrote.

After receiving Dowlut’s letter, the Newark Housing Authority announced they were rescinding their gun ban. However, the Dover Housing Authority, Delaware State Housing Authority and the Wilmington Housing Authority did not respond to Dowlut’s warning. Instead, they implied they were merely following a federal directive from the U.S. Department of Housing and Urban Development (HUD).

On Feb. 9, however, CRI published a story quoting senior HUD officials, in which they said gun bans were a local decision. HUD, the officials said, never ordered or even implied that local housing authorities should prohibit guns.

The housing authorities then turned to their lawyers for advice. Their lawyers passed, and asked Delaware Attorney General Beau Biden for an AG’s opinion on the constitutionality of the gun bans. In other words, the housing authorities wanted to know whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applied to people living in public housing.

Meanwhile, a bipartisan group of state lawmakers introduced legislation that would limit the authority of public bodies to regulate firearms, absent specific authorization from the General Assembly.

Delaware Gov. Jack Markell strongly opposed the bill, and lobbied against its passage.

The aptly named House Bill 357, however, is languishing in the Delaware House Majority Leader’s desk.

Neither passage of HB 357 nor a decision by Biden will likely have much impact on the outcome of the NRA lawsuit.

“I see this litigation and the legislation currently pending before the Delaware General Assembly as mutually exclusive matters,” Sigler said. “This newly filed litigation is about the vindication of constitutional rights which have been denied to the residents of the Wilmington Housing authority, generally, and denied to this particular plaintiff, specifically; whereas, I see the currently pending legislation being about clarifying and/or expanding Delaware’s firearms preemption laws to apply to all of Delaware’s Housing Authorities and placing the power to enact firearms regulations where it belongs with the General Assembly. In other words, while to the uninformed there might appear to be a confluence of issues, the issues presented in the litigation and the legislation are, indeed, separate and distinct.”

Said Pileggi: “I would respect any opinion the Attorney General would provide, but having said that, the opinion would not be binding on the court.”

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 May 26, 2010, by the Caesar Rodney Institute

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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

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© Copyright Feb.24, 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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