Page 10 - Delaware Lawyer - Fall 2021

FEATURE | THE DELAWARE CONSTITUTION
Delaware’s citizens. Therefore, the proper focus of any analysis of the right to trial by jury, as it is guaranteed in the Delaware Constitution, requires an examination of the common law.
Right to Keep and Bear Arms
Article I Section 20 of the Delaware Constitution provides that: “A person has the right to keep and bear arms for the de- fense of self, family, home and State, and for hunting and recreational use.” Section 20 is the only section of the current Dela- ware Bill of Rights that did not originate in Delaware’s 1792 Bill of Rights. This provision was added in 1987 and did not exist in any of the previous drafts of the Delaware Constitution.
The members of the 1792 Conven- tion had proposed a right to bear arms provision that was rejected and also voted to delete the provision contained in Sec- tion 18 of the 1776 Declaration of Rights regarding the necessity of maintaining a militia. When this section was added in 1987, the General Assembly did not take its text verbatim from the Second Amend- ment to the United States Constitution, which provides that “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
In Doe v. Wilmington Housing Author- ity,9 the Delaware Supreme Court held that this section is an independent source for recognizing and protecting the right to keep and bear arms.10 The Court stated that “[o]n its face, the Delaware provision is intentionally broader than the Second Amendment and protects the right to bear arms outside the home, including for hunting and recreation.”11 The Court pointed to the distinctive language that “Section 20 specifically provides for the defense of self and family in addition to the home.”12 The Court also noted the legislative history and Delaware’s long tradition of allowing responsible, law- abiding citizens to keep and bear arms outside of the home. The right is stron- gest, however, when “the weapon is in
one’s home or business and is being used for security.”13 The Delaware Supreme Court has interpreted Section 20 as pro- viding an “in-home” exception for the statutory prohibition against the carrying of a concealed deadly weapon.14
The right to keep and bear arms is fundamental but not absolute.15 Accord- ingly, the rights afforded under this sec- tion are subject to statutory limitations. For instance, Section 1448 of Title 11 of the Delaware Code provides for the pro- hibition of the right to possess or control a firearm under certain circumstances such as, for example, when a person has been convicted of a felony.16 However, other statutory authorities provide for the restoration of the rights upon un- conditional pardon.17
Line-Item Veto
There are also structural differences between the Delaware Constitution and the United States Constitution. With respect to appropriations, Article III Section 18 expressly permits the Gov- ernor to exercise line-item veto power. The constitutional debates reflect the drafters’ intent for the line-item veto to apply to only “appropriation bills.” During the debates, William Spruance stated that “[p]rovisions in regard to [the executive’s] power to veto sepa- rate items over appropriation bills, have been adopted into all the new [state] Constitutions, and the absence of it in the Federal Constitution is a fact greatly to be lamented.”18
Only bills containing more than one “distinct” item of appropriation are subject to the Governor’s line-item veto power. Legislation that only provides a procedure for future appropriations is not subject to the Governor’s line-item veto. A bill im- posing conditions on a prior appropriation to a department is not an item of appropri- ation. In all of these cases, the Governor’s invalid line-item veto of a bill nullified the Governor’s partial approval of the remain- ing provisions in the bill and resulted in the complete failure of its enactment.19
Single Subject in Title
Another structural difference be- tween the Delaware Constitution and the United States Constitution is in Ar- ticle I Section 16, which provides that: “No bill or joint resolution, except bills appropriating money for public purpos- es, shall embrace more than one subject, which shall be expressed in its title.” This section was new to the Constitu- tion of 1897 and is similar to provisions contained in the constitutions of several other states. The section was considered on many different occasions by the 1897 Convention before the current text was adopted. Much of the discussion on this section concerned the exception for “bills appropriating money for public purposes.”
This exception was added by the Committee of the Whole. The two gen- eral provisions in this section, that a bill contain only one subject and that the ti- tle of the bill describe its subject, are dis- tinct requirements.20 Each has different historical origins. Nevertheless, these two requirements are often combined in a single provision, such as this section of the Delaware Constitution, to achieve a common purpose.
The history and purpose of the two general requirements were examined by the Delaware Supreme Court in Turnbull v. Fink.21 First, with regard to a single subject, the potential prob- lem caused by an omnibus bill, which includes multiple unrelated provisions on heterogeneous matters, is an unin- formed legislative vote. This problem was recognized by the Romans: in 98 B.C., the Lex Caecilia Didia was en- acted to prohibit the adoption of laws that contained unrelated provisions. The omnibus bill continued to be a cause for concern in colonial America prior to the Revolutionary War. Consequently, the constitution of nearly every state now contains a general requirement that leg- islation be limited to a single subject. The second general requirement in this
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