Lewes ‘open carry’ ban causing constitutional conundrums

“Open carry” legislation is causing headaches for Lewes’ city council.

On Monday the council discussed the legality of their city code, which currently prohibits openly carrying firearms and weapons in the city limits.

The problem is that it’s at odds with Delaware’s constitution, which permits “open carry” throughout the state.

However, while the state legislature set the standard that no municipalities or counties can make laws that restrict gun laws, those who passed those laws prior to July 1, 1985, are exempt from that standard.

With Lewes’ city code being established in 1980, including their “open carry” policy, the number of “what if?” scenarios had council struggling with how they should handle the situation.

From the police department’s side, Chief Jeffrey Horvath said the idea of enforcing something he sees as unconstitutional is untenable.

“The Delaware constitution says you have the right to keep and bear arms. That’s exactly how it’s worded,” Chief Horvath said.

“I don’t want to be in a position where someone is insisting ‘It’s on the books, you’re not enforcing it,’ he added. “I think we need to be able to tell the police officers that ‘this is what you’re supposed to do because it’s the right thing to do.’ ”

City solicitor Glenn Mandalas said if a person were to challenge the validity of the law at a state level, the city code might be superseded by the state constitution by a court’s opinion.

“One of my concerns is even if our law was in place prior to 1985, does it still somehow violate second amendment, right to bear arms, principles?” Mandalas said.

There’s also the issue of the original ordinance that brought the problem to light in the first place. Council had conditionally approved the ban of openly displayed firearms and weapons at municipal buildings and functions.

“If your intentions are only to have the law that prohibits open carry in municipal buildings and do away with the other one, we can do that as well,” Mandalas said.

That ordinance was approved on the condition the governor sign legislation to enact municipalities and counties the authority to bar “open carry” inside municipal buildings and functions.

While the governor still hasn’t signed the law, councilwoman Bonnie Osler questioned whether the ordinance’s potential passing could raise additional questions about the city’s pre-1985 exemption.

She added an interpretation of the state legislature’s exemption could be “they say you can leave it the way you had before 1985, but you can’t fiddle with it.”

Resident Rick Moore spoke out against changing the code. He said the ongoing interpretation of the second amendment is “an ongoing controversy,” and one that should be left to the Supreme Court to decide.

“Don’t change your laws until you have some Supreme Court guidance, because (the second amendment) certainly doesn’t mean what it originally meant,” Moore said.

But the idea of contradicting the Delaware state constitution did not sit well with Horvath.

He said “The chief prior to me was informed by city solicitor not to enforce it,” and maintained his stance that he saw the law as unconstitutional.

Ultimately, Mayor Theodore Becker asked Mandalas to research the matter for further discussion at September’s city council meeting.

With Lewes being the first Delaware municipality to try to bar openly displayed firearms at municipal functions, what he finds could have implications for other towns who are also looking to pass the same legislation.

Contact reporter Phil Davis at 410-877-4221 or pdavis3@dmg.gannett.com.