Delaware lost its fight to ban peaceable Americans from making and possessing their own firearms. Now Attorney General Kathy Jennings wants a do-over.
After a federal judge struck down the state’s unconstitutional bans on so-called “ghost guns” in September, Delaware is asking the court to reverse its judgment and restore the restrictions. The state’s latest argument? That its prohibitions on privately manufactured firearms are little more than ordinary serialization requirements.
Firearms Policy Coalition (FPC) isn’t buying it.
On November 12, FPC filed a 21-page opposition in Rigby v. Jennings, arguing that Delaware is attempting to relitigate a constitutional defeat by misrepresenting what its laws actually prohibit. The latest filing was highlighted by AmmoLand 2A NewsRoom.
The problem for Delaware is straightforward: Its laws don’t merely require serial numbers. They prohibit law-abiding people from manufacturing and assembling their own firearms, even when those firearms would be serialized. The state’s newly enacted compliance window for certain existing firearms does nothing to eliminate that prohibition.
Delaware Already Lost This Fight
On September 10, U.S. District Judge Maryellen Noreika permanently blocked Delaware from enforcing its bans on possessing unserialized firearms and unfinished frames or receivers, along with restrictions on manufacturing, assembling, and 3-D printing firearms at home.
The ruling was a significant Second Amendment victory for FPC and individual plaintiffs John Rigby and Alan Knight, who originally challenged Delaware’s restrictions in 2021.
Judge Noreika concluded that the possession and manufacturing prohibitions violated the Second Amendment under the constitutional framework established in New York State Rifle & Pistol Association v. Bruen.
The court also rejected Delaware’s attempt to justify the bans on public-safety grounds, finding no record evidence that privately manufactured firearms present dangers distinct from traditionally manufactured, serialized firearms.
The judgment was not a complete victory. Delaware’s commercial-distribution restrictions and prohibition on distributing certain 3-D printing files survived and remain enforceable.
But rather than accept the defeat on possession and manufacturing, Delaware filed an October 8 motion under Federal Rule of Civil Procedure 59(e), asking the judge to undo the ruling.
A Gun Ban Is Not a Paperwork Requirement
Delaware’s latest attempt rests largely on two developments: a September 1 Third Circuit ruling in United States v. Berger and House Bill 418, signed into law September 3.
In Berger, the Third Circuit upheld federal suppressor registration requirements, reasoning that sufficiently minimal and objective registration obligations do not necessarily infringe the Second Amendment.
Delaware now wants to apply that reasoning to its restrictions on privately manufactured firearms.
But there is an obvious difference between requiring someone to register a firearm and prohibiting that person from manufacturing one in the first place.
H.B. 418 provides a limited six-month compliance window for qualifying owners of previously possessed unserialized firearms and unfinished components. They can have those items serialized through a federally licensed firearms dealer or manufacturer, or render them permanently inoperable.
What the legislation does not do is generally authorize future home manufacture or provide an unrestricted path to compliance for newly manufactured firearms.
FPC argues Delaware is using that narrow exception to pretend its blanket prohibitions have become harmless administrative regulations.
In its opposition, FPC says the state is defending a law that does not actually exist: one imposing only minimal serialization requirements rather than outright bans.
FPC: Delaware Doesn’t Get a Do-Over
FPC President Brandon Combs pulled no punches in the organization’s November 12 announcement.
“Let’s be clear: Delaware criminalized peaceable people for making and possessing their own firearms, and now it’s trying to pretend these outright bans are just harmless paperwork requirements. That’s complete nonsense.” — Brandon Combs, President, Firearms Policy Coalition.
FPC’s legal opposition is equally forceful. The organization argues that Rule 59(e) is not an invitation for a losing party to recycle rejected arguments or introduce new theories simply because it dislikes the outcome.
The plaintiffs also point out that H.B. 418 does nothing for Rigby and Knight, who previously relinquished firearms and components and now wish to reacquire them. The statute’s limited protection for previously possessed items does not provide a means to recover that property.
Delaware additionally argues that restrictions on unserialized firearms are justified because criminals use them.
That argument runs directly into the district court’s earlier finding that the state failed to establish that privately manufactured firearms pose some unique danger compared with other firearms.
Criminal misuse does not erase the constitutional rights of millions of Americans who obey the law. A firearm does not become inherently more dangerous simply because its owner built it rather than purchasing it from a manufacturer.
The Fight Over Homebuilt Firearms Is Far From Over
For now, Judge Noreika’s permanent injunction against Delaware’s possession and home-manufacturing bans remains in place. The state’s surviving commercial-distribution and digital-file restrictions are unaffected.
The litigation also has an appellate component. Proceedings in the Third Circuit, docketed as No. 26-3575, have been stayed pending resolution of the district court’s post-judgment proceedings.
If Delaware succeeds in overturning the judgment, the restrictions could return. If the judge rejects the state’s motion, the dispute can continue through the appellate process. The stakes extend beyond Delaware.
For generations, Americans have built firearms for lawful personal use without first obtaining government permission. The Second Amendment protects the right to keep and bear arms, and the September ruling recognized that prohibiting lawful home manufacture also interferes with the ability to acquire them.
Delaware’s attempt to resurrect its bans illustrates a familiar tactic: Repackage a prohibition as a regulation and insist the constitutional problem has disappeared. But calling a gun ban a serialization requirement does not make it any less of a ban.
FPC is asking the court to recognize that distinction and leave its Second Amendment victory intact.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
