Two Landmark SCOTUS Decisions and…

Posted on 06-27-2022

What They Might Mean for Delaware

The Supreme Court of the United States (SCOTUS) this week issued two landmark decisions, one that is likely to impact Delaware, the other not so much.

In a 6 to 3 decision in the case of New York State Rifle & Pistol Association v. Bruen, the High Court struck down a New York state law requiring that people applying for a permit to carry a concealed weapon “demonstrate a special need for self-protection distinguishable from that of the general community.” Two petitioners in the case — New York residents Brandon Koch and Robert Nash — applied for unrestricted licenses to carry a handgun for general self-defense. New York officials denied both applications because the state maintained the men had failed to show “proper cause.”

Writing for the majority, Justice Clarence Thomas said the constitutional right to bear arms in public for self-defense is not a second-class right. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” the opinion stated. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

The SCOTUS decision could affect the process for obtaining a permit to carry a concealed deadly weapon in The First State. Like New York, Delaware is one of nine so-called “may issue” states. Officials in these states can deny an application for a permit to carry a deadly weapon based on their own evaluation. In Delaware, applicants must meet a host of requirements, including a criminal background check and firearms training. However, applicants must also receive approval from both the state attorney general and Superior Court. Delaware’s concealed carry permit application requires citizens to disclose a reason for their need to possess a weapon, cautioning them to “be VERY specific.”

In a separate decision, the justices voted 5-4 to overturn the supreme court’s earlier 1973 watershed ruling on Roe v. Wade that established a constitutional right to abortion. Today’s court action involved the case of Dobbs v. Jackson Women’s Health Organization, which contested a law enacted in Mississippi four years ago that severely restricted abortion after the 15th week of pregnancy.

According to SCOTUSblog, an independent news site dedicated to covering the nation’s highest court, the 79-page majority opinion by Justice Samuel Alito stressed that nothing in the U.S. Constitution implicitly protects the right to an abortion. Justice Alito concluded, that the issue of abortion should “return … to the people’s representatives” at the state level.

While highly dramatic, the reversal of Roe v Wade is not expected to have any impact in Delaware. Five years ago, the state enacted legislation (Senate Substitute 1 for Senate Bill 5) essentially locking in the status quo on abortion under the 49-year-old ruling.

Delaware law permits the termination of a pregnancy before viability, which is defined as “a physician’s good-faith medical judgment…there is a reasonable likelihood of the fetus’s sustained survival outside the uterus, without the application of extraordinary medical measures.”

The law also allows abortions after viability to protect the health of the mother or in the event of a serious fetal anomaly for which there is not a reasonable expectation the fetus could survive outside the uterus without extraordinary intervention.