Key Takeaways
- Firearms Policy Coalition filed a brief Thursday asking a federal judge to reject Delaware Attorney General Kathy Jennings’ motion to reconsider a ghost gun ruling.
- U.S. District Judge Maryellen Noreika ruled in September that Delaware’s ban on unfinished frames and receivers violated the Second Amendment.
- FPC argues Delaware’s statutory amendment did not cure the constitutional defects and left no safe harbor for self-manufactured firearms.
- Plaintiffs John Rigby and Alan Knight already relinquished firearms and components, and FPC says the amended law does not allow them to reacquire those items.
- Judge Noreika has not yet ruled on Delaware’s motion to alter or amend the final judgment in Rigby v. Jennings.
Estimated reading time: 4 minutes
WILMINGTON, DE — Firearms Policy Coalition and plaintiffs John Rigby and Alan Knight filed a brief Thursday asking a federal judge to reject Delaware Attorney General Kathy Jennings’ motion to alter or amend the judgment in Rigby v. Jennings, the case in which the court struck down Delaware’s so-called ghost gun provisions under the Second Amendment. In plain terms, the state lost and is asking the judge to change her own final ruling. FPC’s brief, filed in the U.S. District Court for the District of Delaware, argues she got it right the first time.
U.S. District Judge Maryellen Noreika ruled in September that Delaware’s ban on unfinished frames and receivers violated the Second Amendment, and Jennings filed the state’s motion asking her to reconsider in October, as reported by the Daily Caller. The outlet also quoted the September opinion, the state’s motion, and FPC’s public response.
Noreika’s reasoning was direct. “Firearm frames and receivers are likewise ‘Arms’ under the Second Amendment,” she wrote. “Moreover, a frame or receiver is ‘necessary for [] a gun to function as intended,’ so in this Circuit, a frame or receiver constitutes an ‘Arm’ under the Second Amendment.”
Delaware’s motion attacks that conclusion at its foundation. “The Court committed clear error by finding the manufacture of firearms is protected by plain text of the Second Amendment,” Jennings argued. “Even if a right to self-manufacture firearms were protected by the Second Amendment, the serialization requirement that the Enjoined Statutes place on all firearms, whether self-manufactured or not, represents at most an incidental burden that is constitutional at step one of Bruen.”
That reference to Bruen is the whole framework here. Under the Supreme Court’s 2022 Bruen decision, courts first ask whether the Second Amendment’s plain text covers the conduct. If it does, the government has to show the law fits the nation’s historical tradition of firearm regulation. Delaware wants the case to end at step one by calling its law a minor paperwork burden.
FPC’s brief fights on both steps. At step one, its argument headings say the enjoined provisions “do not impose a minimal serialization requirement” and that the court “correctly held that the manufacturing ban falls within the scope of the Second Amendment.” At step two, the brief argues the provisions “do not fit into any purported tradition of public tracking” and that “the State’s common-use argument fails.”
The brief also argues the case is not moot. A case becomes moot when there is no longer a live dispute for a court to resolve, often because the law at issue has changed. FPC says Delaware’s change did not get the state there.
“The case is not moot because the statutory amendment did not cure the constitutional defects. There is no safe harbor for self-manufactured firearms, and the safe harbor for possession is limited to firearms possessed before the statute’s effective date,” FPC argued. “Moreover, the plain text of the safe harbor does not allow Plaintiffs Rigby and Knight to reacquire the firearms and components that they have already relinquished.”
Rigby and Knight already gave up firearms and components. If FPC’s reading of the amendment is right, a grandfather clause tied to a cutoff date does nothing for the people who complied and surrendered theirs. It does nothing for anyone who wants to build one going forward either.
On remedy, the brief argues the enjoined provisions still cause irreparable harm and the equities still favor permanent injunctive relief, meaning a lasting court order barring the state from enforcing them. “The deprivation of Plaintiffs’ constitutionally protected rights, including their right to self-manufacture, constitutes irreparable injury, and there is no public interest in enforcing unconstitutional laws,” FPC wrote.
FPC was blunter in a post on X: “You lost. You don’t get a do-over.”
Judge Noreika has not ruled on Delaware’s motion. These are the parties’ arguments, and the court decides what happens next. For gun owners in the First State, the answer controls what they can legally build and keep at home. Knowing the law where you live is part of a responsible carry mindset, and my guide to Delaware concealed carry laws covers the rest of the state’s rules.
More from USA Carry:
Read FPC’s full brief in opposition below, or open the PDF in a new window.
I will continue tracking Rigby v. Jennings as Judge Noreika weighs Delaware’s motion.
