Delaware is trying to freeze a federal lawsuit it should have already lost. In Birney v. Delaware Department of Safety and Homeland Security, No. 1:22-cv-01624 (D. Del.), pending before U.S. District Judge Richard G. Andrews in Wilmington, plaintiffs led by Gavin J. Birney are challenging Delaware House Bill 451, the 2022 law that raised the minimum age to purchase or possess most firearms to 21, barring otherwise-eligible 18-, 19-, and 20-year-olds. On July 10, 2026, the plaintiffs asked Judge Andrews to lift a stay that has held the federal case frozen since 2023. Delaware answered three days later with a letter that reads like a legal argument but functions as a stall. The reasoning behind it is worth examining closely, because it fails for reasons that matter well beyond Delaware’s borders.
A Ruling the Third Circuit Already Made
The premise of Delaware’s position collapses the moment you consult a map of federal jurisdiction. In Lara v. Commissioner Pennsylvania State Police, 91 F.4th 122 (3d Cir. 2024), the U.S. Court of Appeals for the Third Circuit held that 18-, 19-, and 20-year-olds are part of “the people” protected by the Second Amendment and enjoined Pennsylvania’s ban on their carrying firearms in public during a declared state of emergency. Pennsylvania sought certiorari, and on June 30, 2026, the Supreme Court denied review, leaving the Third Circuit’s holding intact as binding law. The Third Circuit’s jurisdiction covers Pennsylvania, New Jersey, and Delaware. Judge Andrews sits in Wilmington, inside a circuit that has already decided, as a matter of binding precedent, that the exact age band at issue in this case carries full Second Amendment protection.
Carry Presupposes Acquisition
Delaware’s response is to draw a line between carrying a gun and acquiring or possessing one, arguing that HB 451 regulates different conduct than the law struck down in Lara. As the State wrote to the court:
“The Second Amendment plaintiffs stressed that Lara controls this case but failed to acknowledge it involved a restriction on different conduct, i.e., public carry, than HB 451, which deals with purchase or possession. The difference in conduct restricted by these laws is not semantic given Bruen’s focus on the specific conduct subject to regulation.”
This does not survive basic logic. The right to carry a firearm in public necessarily presupposes the right to first acquire it and possess it. No one bears arms in public that they have not obtained and kept. Under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the conduct at issue is defined by what the Amendment’s text covers, and “keep and bear” has always encompassed both halves. Delaware cannot sever possession from carry when possession is the precondition for carry. That is not a distinction of degree. It is not a distinction at all.
Waiting on a State Court to Answer a Federal Question
Having lost the conduct argument, Delaware falls back on delay. The State wants Judge Andrews to keep the federal case stayed until the Delaware Supreme Court rules in a related state-court appeal, argued June 10, 2026 and still undecided. In its letter, the State asked that the stay:
“should remain in effect as that state court proceedings have not yet concluded.”
What the Delaware Supreme Court says about Delaware’s own constitution has no bearing on a federal district judge’s duty to apply binding federal precedent. Whatever conclusion the state’s highest court reaches, it cannot alter the Third Circuit’s construction of the federal Second Amendment, and it cannot excuse a federal court from following circuit precedent that already resolves the question. This is the anti-gun playbook I have documented on this channel for years: delay, delay, delay. Every month a stay holds, an unconstitutional age restriction remains enforceable, and young Delawareans stay barred from lawfully acquiring firearms while the litigation idles.
No Trial Needed to Read the Second Amendment
Delaware’s letter goes further still, insisting the federal case cannot proceed without expert discovery and an evidentiary hearing. As the State put it:
“The Delaware defendants disagree with the Second Amendment plaintiffs’ assertion that no discovery is needed. The state of Delaware has produced expert reports in the state court proceedings and intends to offer expert reports and request an evidentiary hearing in this case.”
That demand does not survive contact with the Supreme Court’s own docket. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); Caetano v. Massachusetts, 577 U.S. 411 (2016); Bruen, 597 U.S. 1 (2022); United States v. Rahimi, 602 U.S. 680 (2024); Wolford v. Lopez (2026); and United States v. Hemani, 608 U.S. ___ (2026), were all decided without a trial, without testifying experts, and without an evidentiary hearing on the meaning of the Second Amendment. The Court’s newly granted cases, Grant v. Higgins and Viramontes v. Cook County, both certiorari granted June 30, 2026, will be decided the same way. Under Bruen, once a plaintiff shows the Amendment’s text covers his conduct, the burden shifts to the government to identify a historical tradition of analogous regulation. That is a search through old statute books, a task for lawyers and judges, not a factual dispute requiring deposed witnesses or empaneled experts.
Closing
Judge Andrews has everything he needs to lift the stay and rule. The Third Circuit has already answered the constitutional question that governs this case, and no volume of state-court proceedings, expert reports, or evidentiary hearings can change what Lara already requires. Delaware is not making a legal argument so much as buying time for a law it knows cannot survive. The Second Amendment does not pause for a state supreme court’s convenience, and it does not require a trial to be enforced.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.