Is the right to bear arms more fundamental than the right to keep them? What about the right to acquire a gun? It’s hard to keep or bear one if you can’t legally get one, after all.
To date, the Supreme Court has rejected the idea that some of the rights protected by the Second Amendment are more important than others, but that’s exactly what the state of Delaware is suggesting in its latest defense of a law banning most young adults from purchasing and possessing firearms classified as “deadly weapons.”
There are currently two lawsuits challenging the state’s prohibition on young adults purchasing and possessing commonly owned arms (with a narrow exemption for 18-to-20-year-olds who possess a concealed carry license): one filed in federal court and one filed in state court. The federal challenge has been on hold while the state-based case works its way up the judicial ladder, and the Delaware Supreme Court agreed in April to hear the lawsuit after a Superior Court judge ruled that the law violates Article 1, Section 20 of the Delaware constitution. Oral arguments took place last month, and now we’re waiting for the court to issue its opinion.
In the meantime, the plaintiffs in the federal lawsuit are asking the federal judge to lift his stay on the proceedings by pointing to the Supreme Court’s recent rejection of a cert petition in a case known as Lara. In that case, the Third Circuit Court of Appeals ruled that the right to bear arms of young adults in Pennsylvania had been violated . The defendants appealed, but SCOTUS let the decision stand when it denied cert.
In its response to the plaintiffs’ request, Delaware declares there is a “difference in conduct restricted by these laws is not semantic given Bruen’s focus on the specific conduct subject to regulation.” Delaware points out as well that though SCOTUS denied cert to Lara, it also denied cert in several other cases where courts had upheld federal or state laws banning the sale of some firearms to adults under the age of 21.
The State acknowledges that, unlike Lara v. Comm’r Penn. State Police the cases below in these other four denials are out-of-circuit. However, the underlying challenged laws in these out-of-circuit age restriction cases are more analogous to the Delaware law when compared to the law at issue in Lara in ways significant to its constitutionality under the federal test.
… Here, the conduct governed by HB 451 relates to the purchase and possession of firearms by individuals aged 18-21 –– the same type of conduct at issue in McCoy, consolidated at the Fourth Circuit with Brown (holding that a federal regulation prohibiting the sale of handguns to individuals under 21 is constitutional because from “English common law to the founding and beyond, our regulatory tradition has permitted restrictions on the sale of firearms to individuals under the age of twenty-one.”
… Conversely, the conduct governed by the Pennsylvania law at issue in Lara relates to the public carry of firearms by the 18-21 age group in certain circumstances. As other courts evaluating purchase-related firearms age restrictions have noted, this difference in conduct makes a difference.
Delaware is attempting to minimize the legitimate circuit court split on the issue of when our Second Amendment rights kick in, and whether those rights can be restricted or limited without violating the Constitution. Yes, SCOTUS recently left several lower court rulings in place that prohibit some or all gun sales to under-21s, but the Fifth Circuit Court of Appeals has previously ruled that bans on handgun sales to 18-to-20-year-olds violate the Second Amendment, and the Court could have addressed this split by granting cert to any or all of the age-based cases it held on to for months before denying cert.
The fact that the justices didn’t just deny cert at the first opportunity but held back that decision until the end of the term suggests there is an active debate at SCOTUS over the issue, and that they’re willing to let the issue further percolate in the lower courts before weighing in.
All of which is to say that I don’t SCOTUS is of much help to either side’s arguments. But the plaintiffs aren’t looking to SCOTUS. They’re looking to the Third Circuit, which does have jurisdiction over Delaware and held in Lara that “the words ‘the people’ in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds, and we are aware of no founding-era law that supports disarming people in that age group.”
Lara is still valid law in the Third Circuit, and even though the case may deal with carrying arms and not purchasing and possessing them without a carry license, the words of the appellate court matter. Delaware can’t ignore the primary finding in Lara, but it sure is doing its best to ignore the implications of the decision.
This argument that acquiring firearms is somehow not a right or less protected because the Second Amendment only applies to the literal “keeping” or “bearing” of arms has always been unserious.
Perhaps if the Second Amendment said “the right to keep and bear arms shall not be… https://t.co/JPPyHzQXaD
— Kostas Moros (@MorosKostas) July 13, 2026
This argument that acquiring firearms is somehow not a right or less protected because the Second Amendment only applies to the literal “keeping” or “bearing” of arms has always been unserious. Perhaps if the Second Amendment said “the right to keep and bear arms shall not be completely eliminated,” arguing that sales restrictions have some far lesser standard of review would make sense. But it doesn’t. It says the right shall not be infringed. And sales restrictions or bans obviously infringe on the right to keep and bear arms.
The 10th Circuit explained this best in Ortega v. Grisham:
“New Mexico points to dictionary definitions of “keep” and “bear” that do not include acquisition. But dictionary definitions of those terms, in isolation, cannot denote the preexisting right’s bounds that the text sought to concretize. In re Mallo, 774 F.3d 1313, 1321 (10th Cir. 2014). The Second Amendment’s text is not limited to direct prohibitions on possessing or using firearms. It states that the “right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. (emphasis added). One cannot keep or bear arms if one cannot acquire them. That is an infringement, even if it is not a direct prohibition or ban. Accord United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (Even if a law “does not impose a complete prohibition,” “laws burdening and laws banning speech . . . must satisfy the same rigorous scrutiny.”).”Ortega v. Grisham, 148 F.4th 1134, 1143 n.3 (10th Cir. 2025)
I have no idea if the Delaware Supreme Court will determine the law violates the state Constitution, but there is no doubt that under the Third Circuit’s guidance in Lara, the ban clearly violates the U.S. Constitution’s protections on the right to keep and bear arms. The Obama-appointed federal judge overseeing the Birney challenge to Delaware’s gun ban for young adults may still want to wait for the state Supreme Court to issue its opinion, but I don’t think that’s necessary. In fact, given the issues at stake here, I think its in the best interest of both the plaintiffs and defendants that the case be resolved and that the stay should be lifted as quickly as possible.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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