Rigby v. Jennings Case - Federal Judge Blocks Delaware Ban on Self-Made Firearms!

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Good news builders! An update in the case of Rigby v Jennings has arrived. If you weren’t aware of this case we’re just going to dive into this one head first. On September 23, 2022, Delaware District Court Judge Maryellen Noreika issued a partial preliminary injunction against the State of Delaware in a case about outlawing homemade guns and distribution of materials used to make said weapons (including 80 percent lower receivers).

What is a preliminary injunction?

A preliminary injunction is a court order made in the early stages of a lawsuit that prohibits parties from doing an act which is in dispute, thereby maintaining the status quo until a final judgment in the trial.

Rigby v Jennings Case Review

In this case, two resides of Delaware sued their governor and attorney general for sighing their state's House Bill 125 which radically expanded the State of Delaware's statutes to unconstitutionally and completely ban the possession, transportation, shipping, transfer, sale or manufacturing of self-made firearms that do not bear a federally licensed serial number. This ban included 3D-printed guns as well. 

Ultimately, Firearms Policy Coalition made yet another win for the 2A community with this case. Utilizing the “ATF Final Rule” - which is currently embattled in federal court, Judge Noreika declared:

Sections 1459(a) and 1463(b) do not solely target commercial transactions. There is no reason to believe, however, that the non-commercial character of a transaction changes the analysis. “Logically, if the government can lawfully regulate the ability of persons to obtain firearms from commercial dealers, that same power to regulate should extend to non-commercial transactions.” - vacated on other grounds and remanded.

At first glance, this is a statement that goes against the Supreme Court’s Heller ruling that states very clearly that the Second Amendment ALLOWS “laws imposing conditions and qualifications on the commercial sale of arms."  For this to make sense the Court must delineate the difference between commercial and non-commercial arms sales. Fortunately, further on, Judge Noreika clarified, found on page 12:

In District of Columbia v. Heller, the Supreme Court identified a non-exhaustive list of“presumptively lawful regulatory measures” that included “laws imposing conditions and qualifications on the commercial sale of arms.” Such laws “comport with the Second Amendment because they affect individuals or conduct unprotected by the right to keep and bear arms.” Abrogated on other grounds by Bruen. 

Of course, not every regulation on the commercial sale of arms is presumptively lawful. In United States v. Marzzarella, the Third Circuit explained that“[i]n order to uphold the constitutionality of a law imposing a condition on the commercial sale of firearms, a court necessarily must examine the nature and extent of the imposed condition.” 

In case we lost you there, the judge clarified the difference between owning, possessing and making firearms - which was particularly helpful in the case against the ATF for builders who already own 80 percent lower receivers and AR15 build kits.

Legal Precedence

Previously, in September 2022, the opposite was found in the case of the U.S. v Quiroz. In this case the Court decided the ability to possess something was meaningless if there is no ability to transfer or receive said item. Back to the Noreika injunction though, we read:

In contrast to the statutes regulating distribution of firearms, the contested statutes prohibiting the possession of unfinished frames and receivers (§1459A(b)) and untraceable firearms (§ 1463(a)) do burden rights protected by the Second Amendment.

The Second Amendment, which protects “the right of the people to keep and bear Arms,” protects the possession of untraceable firearms and unfinished firearms and receivers because its text covers the possession of firearms. Sections 1459A(b) and 1463(a) criminalize the possession of unserialized finished firearm frames and untraceable firearms without providing any way for Plaintiffs to keep firearms they lawfully manufactured.12 Thus, the Second Amendment presumptively extends to the conduct prohibited by these statutes.

Caveat

Well, all that sounds fantastic on its surface, it really does! Unfortunately for those of us that love to build firearms from 80 percent lower receivers and AR15 build kits, etc, it’s not that simple. Before we give this Judge a cape and declare her a hero and defender of the Constitution, Her Honor follows up with this little batch of mental gymnastics - explaining why the ATF requiring serial numbers on hunks of metal in potentially frightening shapes is NOT unconstitutional. Page 14 of the opinion continues:

Here, §§ 1459A(a) and 1463(b) permit anyone lawfully able to sell a firearm to do so, and simply require that those selling or transferring firearms to abide by federal law when doing so. Section 1459A(a) permits federally licensed gun dealers and manufacturers who abide by federal law’s serialization and record-keeping requirements to transport, ship, transfer, and sell unfinished firearm frames and receivers.

Thus, Plaintiffs will have still have access to these components. Further, § 1463(b) bars the sale or transfer of untraceable firearms but does not prohibit any type of firearm to be bought or sold, so long as it is traceable. Barring the distribution of untraceable firearms may make purchasing a firearm more inconvenient, but this does not amount to a Second Amendment burden because of the easy access to traceable firearms. 

See, e.g., Teixeira v. Cnty. of Alameda, 873 F.3d 670, 680 (9th Cir. 2017) (explaining that “gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained.”). Therefore, the Court finds that these regulations impose conditions on the sale and transfer of firearms that do not burden Plaintiffs’ Second Amendment rights because they do not bar the sale of any type of weapon or impose onerous regulations on those wishing to distribute unfinished firearm frames and receivers.

The Court's Decision

Eyes glazing over yet? Our’s too. Essentially, Judge Noreika said that the required serializing of certain gun parts is not unconstitutional because the consumer is still able to purchase and possess them with only “minimal” inconvenience, which means it is not a “Second Amendment burden.” 

So why does this matter? Well, it's only good news for another Court to recognize the infringement being imposed on our 2nd Amendment rights. This law is unconstitutional because it bans and limits legal access to firearms without them. The practice of requiring serialization on firearms began in 1938 and was expanded even further in 1968. Thousands and perhaps millions of firearms exist in this country without serial numbers - are their owners automatically felons for owning something that their grandfather left them?

It’s a slippery slope, and despite some small wins in this particular injunction, the fight is still not over yet.