Delaware’s Highest Court Just Refused Bruen — and Put the Under-21 Ban Back On

The Delaware Supreme Court issued its opinion in Delaware Department of Safety and Homeland Security v. Birney on September 8, 2026. The caption is No. 412, 2025, on appeal from Superior Court C.A. No. K23C-07-019. Plaintiffs below were Gavin J. Birney, the Delaware State Sportsmen’s Association, and Bridgeville Rifle & Pistol Club. Defendants were the Department, Cabinet Secretary Nathaniel McQueen, Jr., and Col. Melissa Zebley. Chief Justice Seitz wrote for the majority. The judgment: REVERSED.

H.B. 451, signed in 2022, raised the age from eighteen to twenty-one to purchase, own, or possess most firearms and ammunition. It carved out shotguns and muzzleloaders, military and law enforcement, concealed-carry licensees, and supervised recreation. The Superior Court had held the law unconstitutional under Article I, Section 20 because it overburdened self-defense. The plaintiffs asked the Supreme Court to apply Bruen’s history-and-tradition test. Seitz declined. “We hew to our means-scrutiny precedent and decline to adopt the newly created history and tradition federal test.” The majority said Delaware’s Section 20 “is not a mirror image of the Second Amendment” and that Bruen does not control a state-constitution case the plaintiffs limited to Section 20.

The court then reversed the Superior Court’s burden analysis. It treated Delaware’s concealed-carry statute as a de facto shall-issue outlet — Bruen’s footnote had counted Delaware’s 2021 approval rate above 98% — and held a facial challenge fails if the statute can be applied constitutionally to anyone. Birney had obtained a concealed-carry permit in sixty-five days and aged out. Justice Traynor dissented. He agreed intermediate scrutiny applied, then said H.B. 451’s handgun ban on 18-to-20-year-olds still overburdened self-defense and that the concealed-carry carveout is discretionary by its own text. The federal Second Amendment challenge was not in this case. This is not last week’s Rigby ghost-gun ruling. It is Delaware’s high court putting the age ban back into force under state law.