In layman’s terms: a three judge panel let the Delaware “assault weapons” ban stand while it’s being challenged in court.
On July 15, a three-judge panel of the Philadelphia-based 3rd Circuit Court of Appeals upheld a lower court’s decision denying a preliminary injunction of Delaware’s 2022 legislation that bans “assault weapons.”
The case, known as Delaware Sportsman’s Association et al v. Delaware, represents a consolidation of three different cases brought against the state for unconstitutional laws signed in June, 2022, that ban numerous semiautomatic firearms like the AR-15 and “large-capacity” magazines that can hold more than 17 rounds of ammunition. The bans were a response to the Supreme Court Bruen decision, and similar to other Bruen-response laws launched by liberal states around the country.
At first look, the decision appears to be extremely unfavorable towards the Second Amendment and comes as a surprise since Judge Bibas has typically been favorable towards Second Amendment issues.
The court summarized the case as such:
The challengers focus on the merits. If they are right on those, they argue, they should get an injunction because all Constitutional harm is supposedly irreparable and the equities and public interest track the merits. But that is not how equity works. Preliminary injunctions are not automatic.
And then, some 20 pages later, they conclude that there is no immediate, irreparable harm that would necessitate a preliminary injunction:
What is more, the challengers offered no evidence that without a preliminary injunction, the District Court will be unable to decide the case or give them meaningful relief. Thus, the court properly found no irreparable harm. We rule only on the record before us. The challengers have shown no harms beyond ones that can be cured after final judgment.
The court even suggested that because the plaintiffs didn’t move ‘quickly’ the matter wasn’t important to them and thus not worthy of a preliminary injunction:
Delaware Sportsmen’s four-month delay suggests that it felt little need to move quickly. Its continuing delay as it chooses not to hasten to trial does not help its case. Thus, the final two factors support denying a preliminary injunction as well.
The irony of this positioning is not lost on our audience who observes that court battles take years and decades to resolve as the courts themselves move slowly.
The linchpin statement in the decision is the last sentence: “We express no view of the merits.”
Second Amendment attorney, and Constitutional scholar, Mark Smith, of the Four Boxes Diner YouTube channel, speculated that the ruling may not be entirely a bad outcome given that the judges looked at the matter through the narrow scope of procedure, rather than on the Constitutional merits of the case. Since two out of three judges on the panel are left-leaning, radical activists, a ruling on the merits may have set a bad anti-Second Amendment precedent, he offered.
“I think he [Judge Bibas] concluded it was better for them to lose on the procedural posture of the preliminary injunction standard, rather than have a terrible anti-Second Amendment ruling issued by Judge Roth with Judge Montgomery signing on a two-to-one [opinion] against the Second Amendment,” said Smith in his video breakdown of the ruling.
Fighting for Second Amendment rights in the court system has been more of a game of legal brinkmanship than arguing the merits of the case. Smith acknowledged that those leading these cases need to recognize this:
As a general matter, we in the Second Amendment community want to lose cases fast. If you’re going to lose a case, lose as fast as possible, get to the Supreme Court as fast as possible, and lose on the merits, because we know the Supreme Court has made clear they don’t like dealing with stuff on an interlocutory basis. Lose, get a final judgment against you, take an appeal on the final judgment basis, and now it’s not interlocutory. Go up to the Supreme Court because that’s where you’re going to have to win it, because these lower court judges, in most instances, are doing crappy work on the Second Amendment.
Plaintiffs are likely to appeal the decision, and we will continue to follow this case.
