Tuesday, January 8, 2008

Changing Laws

I can say that I've made my mark on Delaware law when it comes to maintaining the right to keep and bear arms.

To preface the folks who aren't aware of the current state of gun control, many years ago, the federal government passed a law that basically prevented the passing of legislation that regulates the carrying of firearms. Most states have adopted this at the state, county and local municipality levels so, in essence, anything enacted after July 4th, 1985 is repealed, while everything before is grandfathered in.

While Delaware does have this preemption and cannot regulate the carrying of a firearm, the regulation of the discharge of the weapon is permissible and usually carries a fairly substantial fine unless the discharge of the weapon was, of course, in the process of defending yourself.

As I was doing some general research on our state laws and local ordinances, I came across New Castle County Ordinance Sec. 24.01.014 (in Chapter 24) -- outside of a city's local ordinances, parks are generally the other place in law to check for firearms ordinances. In any case, the title of the ordinance is "Possession of certain knives; discharge of weapons." It looked normal and, as I began to scan over, I wasn't expecting anything out of the ordinary...

"No person shall carry a knife upon his or her person having a blade three (3) inches or longer in length or have possession of or discharge a BB gun, air rifle, pistol, firearm, paint ball gun, bow and arrow or any other type of lethal weapon in any park. (Ord. No. 98-050, § 1(24-14), 5-26-1998)"

I reread it again and couldn't believe my eyes -- it appeared to have been passed in 1998 and it had a provision for regulating the possession of firearms. I drafted up a quick email to the Delaware Attorney General's office asking them about it, thinking that they'd respond... Technically, if I was correct, anyone who was convicted on this charge could potentially appeal the decision because, according to preemption (as I read it), if the law is passed and controls the possession or carrying of a gun, it's immediately repealed. Their response:

Your e-mail communication to the Attorney General dated December 6, 2007 was forwarded to me for response on his behalf.

As you are requesting an interpretation of a county ordinance and how it may impact on the future conduct of an individual, those in our Department are prohibited from providing advice, an opinion or such interpretation. We may only do so in the course of an active case and then only on behalf of the State as the prosecuting agency.

If you feel that a given municipal or county ordinance suffers from a deficiency or ambiguity, that is a matter that must be addressed by the County Council as the legislative body that enacts and amends the county code.

Thank you for giving the Department an opportunity to address your request.

I expected as much from them, as I'd written them in the past with a similar response. So, I looked up my County Councilman and basically sent him the same thing I'd sent the AG's Office. His name is David Tackett and, despite being a democrat being handed a gun issue, the response I got from him was promising to say the least.

Dear Rob,

Thank you for reaching out to me and bringing this to my attention. Give me a little while to work on this issue and get back to you. You are correct if in deed it is in conflict I will fix this and if it is not I will explain why?

Thanks again and give me a few days to have my attorneys review this and I will get back soon,

Thanks again,
Dave

I also discovered during this period that he's "The Honorable David L. Tackett" which was also promising as we all expect judges to be impartial and interpret the law with an even hand. My hopes were dashed a little as a few days stretched on to a week and, by that time, I was on vacation for two more weeks and hadn't heard anything from my Councilman.

I gave him the benefit of the doubt -- it was close to the Christmas and New Years season and, as a government employee myself, I know how much I value my time off, so I dropped him a quick email asking if he had a chance to pass the information on to his attorneys. I received a very prompt response:

Dear Rob,

Thanks for reaching back out to me. To update you, Yes I had the subject matter has been reviewed by our attorney and was determined there was an error that needed to be corrected on our park and the legislation will be drawn up to read that guns can be brought into a county park legally, they will just not be allowed to be discharged in the park. Except for say self defense.

Thanks again for bringing this to my attention and I will have this introduced at the [January] 22nd council meeting and hopefully voted on the first meeting in Feb.

Thank you for all the research you had done also.

Thanks again,
Dave

This about floored me -- I couldn't express how pleased I was. Bear in mind that, though I had a passive interest in listening to politics and have only voted in the last two elections, until I purchased my first firearm and found an outlet for my old, high school love of history in the form of the Constitution and law, I had never been an active participant.

It's hard to express knowing that, as a father, I made a difference that will allow me to lawfully carry my sidearm into the parks we often visit and have the ability to protect my children should the need arise.

There are a few hurdles left for Delaware in terms of making us a Gold Star State...
  1. Pass legislation that changes us from a MAY ISSUE state to a SHALL ISSUE state. As it stands, the process is cost prohibitive enough to ward away the average Joe from obtaining a permit.
  2. Place a time limit on the state for processing permit applications.
  3. Amend the grandfathered ordinance in Dover that regulates the carrying of firearms in that city to, instead, regulate concealed carry and the discharge of weapons to bring it in line with every other municipality in Delaware.
I don't know how realistic these goals are, but hopefully we'll have a chance to find out in my lifetime.

1 comment:

Shirley Vandever said...

Your tenacity is admirable !

I wish that more individuals knew that if they took the time, educated themselves, and then followed up with legislators, that they can really make a difference. It isn’t easy.