Lawsuit challenging Delaware's permit to purchase law says new rule is racist, unsafe

Editor’s note: An earlier version of this story incorrectly stated Delaware State Police Col. Melissa Zebley had been a named defendant in a previous lawsuit filed by The Neuberger Firm.

A new Delaware gun law is problematic, especially when looking at the history of how governments have selectively treated marginalized people, according to the lead plaintiff challenging legislation enacted Thursday.

The law will require residents to complete a firearm training course and obtain a permit before purchasing a handgun, a process that can take up to a month.

"If you're on a list, you're not going to get a permit," said attorney Thomas S. Neuberger, one of five plaintiffs who filed the lawsuit less than four hours after Delaware Gov. John Carney signed the permit to purchase law on Thursday.

The federal lawsuit, filed against the state Department of Homeland Security and others, challenges the constitutionality of the new law and is focused on "vindicating fundamental civil rights being trampled on by overbearing legislation that defies controlling legal authority."

The new law takes away rights guaranteed under the Second, Fourth and 14th amendments, according to the lawsuit filed in U.S. District Court in Wilmington. It also goes against Delaware's constitution because it would prohibit the sale, transfer and purchase of handguns without a permit — which is guaranteed under the state's fundamental principles.

The lawsuit is asking for the court to stop the law's implementation and its enforcement.

Editor's note: view the lawsuit at the end of the story.

The new law's aim is not to do away with the Second Amendment, Carney said following Thursday's signing.

"It's really to regulate within the Second Amendment," said Carney, who was anticipating the legal challenge. "There's been cases which have allowed certain things to occur, again, mostly about regulating gun ownership and possession."

Examples of this would be House Bill 423, which strengthens background checks by reinstituting the Firearm Transaction Approval Program and House Bill 451, which raised the age from 18 to 21 to purchase most firearms. Both of these bills were signed into law in 2022.

More: Delaware governor signs 'permit to purchase' gun bill into law, already facing legal challenge

Delaware's new gun law

The new law will not take effect for 18 months.

Once in place, applicants will have to pay for fingerprinting and the required training. There will be no fee to obtain the permit, according to Senate Substitute 1 for Senate Bill 2. The permits will be valid for two years and the training course for five years.

The State Bureau of Identification, which is overseen by Delaware State Police, will then have 30 days to ensure the applicant has met all statutory requirements. If requirements are met, the applicant then has two years to purchase weapons with their permit.

The law does not create a registry, but it does keep certain records related to the application. This would include the applicant's name, date of birth and when the permit was issued.

Aside from the law being unconstitutional, opponents of the law say there is a serious safety concern imposed on people who need a handgun quickly for protection.

"This new law denies the right of self-defense, the right to defend yourself and family with a gun when necessary in an emergency," Neuberger said.

In his lawsuit, Neuberger said the law could lead to law-abiding people breaking the law as they seek to arm themselves in the name of protection — especially in the light of civil unrest that's been seen in the past few years.

"A small extreme minority of states is trying to take away the right to defend ourselves in an emergency," Neuberger said. "I expect our lawsuit will be successful."

Law can be used against marginalized people

Neuberger, who is joined in the lawsuit by Delaware State Sportsmen's Association and Bridgeville Rifle and Pistol Club, cites a history of discriminatory practices under similar laws by state governments that have kept Black law-abiding citizens from accessing weapons guaranteed to them under the Second Amendment.

The 30-page complaint refers to how after Martin Luther King Jr.'s home was first bombed in Alabama in 1956, the civil rights activist tried to obtain a handgun to protect his family. Alabama had a handgun permit law then and that state's governor refused King a permit for a handgun.

"That law is racist and unconstitutional because it denies members of the Black community the right to quickly get a gun for protection when needed in an emergency," Neuberger said. "Just like when MLK was bombed."

But it's not just Black people who might be affected by this law, Neuberger told Delaware Online/The News Journal. Anyone who is an activist or disagrees with the powers that be can be retaliated against in one way or another.

"It happens all the time," he said, pointing to retaliation he received from officials when he was suing New Castle County.

Former County Executive Tom Gordon, and his one-time top aide, Sherry Freebery, released confidential medical information — that he had a brain tumor — to the public. This was in retaliation for civil rights lawsuits he filed on behalf of county employees.

When that happened, Neuberger filed a federal lawsuit in 2005 claiming Gordon and Freebery set out to destroy him and his reputation by releasing damaging and misleading medical information, such as that he was dying of a brain tumor and it was causing him to act erratically. Neuberger also said the two had tried to defame him.

After a three-year legal battle, the lawsuit was settled with Gordon and Freebery paying him $25,000 and sending him a one-page apology letter. Neuberger donated the money to charity.

Because Neuberger has sued the state, including agencies that will have a say in who gets a permit, he wonders if he will be retaliated against.

"I have sued the [Delaware State Police] more than a dozen times," he said.

Neuberger said his defense of civil rights has caused people to threaten him — someone even left a threatening message on his home's backdoor.

"With dozens of lawsuits against police up and down the state, as well as politicians, governors, mayors and more, will my application be lost or delayed?" he asked. "Of course, it will."

Other gun law challenges

There are more than 10 states with permit-to-purchase laws — at least one of those states, Maryland, has seen that law overturned following a U.S. Supreme Court decision demanding courts look to history, tradition when considering these cases.

In its 2022 decision, where it struck down a requirement adopted in a half dozen Democratic-led states that curbed who may obtain a license to carry a handgun in public, the nation's top court said gun regulations must be "consistent with this nation's historical tradition of firearm regulation" to survive court challenges. 

That ruling opened the door to challenge other gun restrictions.

More: Supreme Court's Second Amendment decision demands courts look to history, tradition

Following the ruling, a three-judge panel on the U.S. Court of Appeals for the 4th Circuit in Virginia overturned Maryland's 11-year-old law in November, claiming the handgun licensing statute violated the Second Amendment — like Delaware's law, Maryland's required fingerprinting and firearms training.

The ruling is one of the first to overturn state gun laws following the U.S. Supreme Court's 2022 decision.

The appeals court agreed in January to reconsider the case. That matter, which is being reviewed by all of that court's judges, is pending.

Delaware Attorney General Kathy Jennings said the 4th Circuit rulings have not had "the final say on constitutionality within their jurisdiction."

She emphasized that under Delaware's new law, everyone has a right to a gun. They just have to take a gun safety course before they can apply for a permit to get a weapon.

"We will have, and already had, challenges to every gun safety law that has been passed by this General Assembly and signed by the governor," Jennings said. "I welcome those challenges. We haven't lost one of them yet."

Send tips or story ideas to Esteban Parra at (302) 324-2299 or eparra@delawareonline.com.

This article originally appeared on Delaware News Journal: Lawsuit claims new Delaware gun permit law is unconstitutional