Delaware Department of Safety and Homeland Security v. Gavin J. Birney

IN THE SUPREME COURT OF THE STATE OF DELAWARE DELAWARE DEPARTMENT OF § SAFETY AND HOMELAND § SECURITY; NATHANIEL § No. 412, 2025 MCQUEEN, JR., in his official § capacity as Cabinet Secretary, § Court Below: Superior Court Delaware Department of Safety and § of the State of Delaware Homeland Security; and COL. § MELISSA ZEBLEY, in her official § C.A. No. K23C-07-019 capacity as superintendent of the § Delaware State Police, § § Defendants Below, § Appellants/Cross-Appellees, § § v. § § GAVIN J. BIRNEY; DELAWARE § STATE SPORTSMEN’S § ASSOCIATION, INC. and § BRIDGEVILLE RIFLE & PISTOL § CLUB, LTD., § § Plaintiffs Below, § Appellees/Cross-Appellants. § Submitted: June 10, 2026 Decided: September 8, 2026 Before SEITZ, Chief Justice; TRAYNOR, LEGROW, and GRIFFITHS, Justices; and NEWELL, Chief Judge,1 constituting the Court en banc. Upon appeal from the Superior Court. REVERSED. 1 Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to complete the quorum. Jennifer Kate Aaronson, Esquire, (argued), Ian R. Liston, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Defendants Below/Appellants and Cross-Appellees Delaware Department of Safety and Homeland Security, Nathaniel McQueen, Jr., and Col. Melissa Zebley. Francis G.X. Pileggi, Esquire, (argued), Keith A. Walter, Esquire, LEWIS BRISBOIS BISGAARD & SMITH LLP, Wilmington, Delaware; Alexander D. MacMullan, Esquire, LEWIS BRISBOIS BISGAARD & SMITH LLP, Wayne, Pennsylvania, for Plaintiffs Below/Appellees and Cross-Appellants Gavin J. Birney, Delaware State Sportsmen’s Association, Inc., and Bridgeville Rifle & Pistol Club, Ltd. 2 SEITZ, Chief Justice, for the Majority: In 2022, the General Assembly enacted and Governor Carney signed into law House Bill 451. The Bill raised the age from eighteen to twenty-one years old to purchase, own, or possess certain firearms and ammunition. The legislation exempted military personnel, law enforcement, concealed carry permit holders, and supervised recreational activities. The plaintiffs filed suit claiming that the Bill was unconstitutional but limited their challenge to the Delaware Constitution. On cross-motions for summary judgment, the Superior Court found that the General Assembly had an important governmental objective for H.B. 451 – addressing the epidemic of gun violence by individuals aged eighteen to twenty. The court also determined that the legislation was substantially related to achieving the government’s objective of reducing gun violence for that age group. But the court ultimately concluded that H.B. 451 was unconstitutional because it overburdened the right of individuals in that age group to bear arms in self-defense. On appeal, the State argues that the Superior Court erred in its burden analysis by making unsupported or incorrect assumptions about exceptions to the law. The plaintiffs support affirmance but take a different tack. They claim that the court should have applied the U.S. Supreme Court’s recent “history and tradition” test to declare H.B. 451 unconstitutional. For the reasons explained below, we hew to our 3 means-scrutiny precedent and decline to adopt the newly created history and tradition federal test. We also agree with the State that the Superior Court erred in its burden analysis. Thus, we reverse. I. A. In 2022, the General Assembly enacted House Bill 451 to address gun violence by individuals under twenty-one years old using legally purchased firearms.2 It cited “conclusive scientific research that shows the human brain is still developing in young adults aged 18 to 21 which impacts their decision making, self- control, aggressive impulses, and risk-taking behaviors.”3 According to the General Assembly, eighteen-to-twenty-one-year-olds are the most common perpetrators of gun violence, making up roughly one-third of all shooters.4 It is also the most common age range for Delaware shooting victims.5 This age range is 2 Del. H.B. 451, 151st Gen. Assem. (2022) (“An Act to Amend Title 11 of the Delaware Code Relating to Firearms.”) [hereinafter H.B. 451]. 3 Id. 4 Id. 5 Br. of Amicus Curiae Giffords Law Center to Prevent Gun Violence 2 [hereinafter Amicus Br.] (citing Jim Salt, Delaware Shootings 2018: An Analysis of Incidents, Suspects, and Victims 12 (Del. Crim. Just. Council 2019), https://tinyurl.com/yc4dc8cn; Jim Salt, Delaware Shootings 2019: An Analysis of Incidents, Suspects, and Victims 12 (Del. Crim. Just. Council 2020), https://tinyurl.com/mrxmbkyf; Jim Salt, Delaware Shootings 2020: An Analysis of Incidents, Suspects, and Victims 15 (Del. Crim. Just. Council 2021), https://tinyurl.com/3stkb65r. 4 overrepresented in mass shooters – six of the United States’ nine most lethal mass shootings since 2018 were committed by individuals under twenty-one.6 Also, roughly one-third of school shooting victims are shot by a perpetrator in this age range.7 H.B. 451 became effective in 2025, three years after its enactment. It prohibits individuals under twenty-one years of age “from purchasing, owning, possessing, or controlling a firearm or ammunition of a firearm,” other than a shotgun or muzzle- loading rifle, unless they are an adult who is “an active member of the Armed Forces, a qualified law-enforcement officer, or has a license to carry a concealed deadly weapon.”8 Individuals under twenty-one may possess or control a firearm for lawful hunting, instruction, sporting, or recreational activities, provided that they are under the direct supervision of an adult aged twenty-one or older. The General Assembly determined that these restrictions were the most effective means to address gun violence by this age group, while still preserving meaningful avenues for firearm 6 Floor Debate on H.B. 451 before Del. H.R., 151st Gen. Assem. at 6:06:4-6:07:20, https://tinyurl.com/mr2n5fzk (statement of Rep. Peter C. Schwartzkopf), (last visited Sept. 1, 2026). 7 Amicus Br. 12 (citing Joshua D. Brown & Amie J. Goodin, Mass Casualty Shooting Venues, Types of Firearms, and Age of Perpetrators in the United States, 1982-2018, 108 Am. J. Pub. Health 1385, 1386 (2018)). 8 Del. H.B. 451 syn., 151st Gen. Assem. (2022). 5 access. According to the Amicus, similar measures elsewhere have proven effective in reducing gun violence in this age group.9 B. In 2022, then eighteen-year-old Gavin Birney, the Delaware State Sportsmen’s Association, and the Bridgeville Rifle and Pistol Club filed a complaint in the Court of Chancery seeking to enjoin H.B. 451’s enforcement. The court dismissed the complaint because the plaintiffs’ constitutional challenges raised legal issues outside the Court of Chancery’s equitable and statutory jurisdiction.10 The plaintiffs then filed a joint declaratory judgment action in the Superior Court alleging violations of the state and federal constitutions. The State removed the case to federal court. The parties thereafter agreed to stay the federal court litigation and proceed through a new Superior Court complaint limited to state constitutional claims. 9 Amicus Br. 21 (observing that the “firearm mortality rate among children under 20 was almost twice as high in the quartile of states with the weakest laws than in the quartile of states with the strongest laws” (citing Sriraman Madhavan, Jordan S. Taylor, Julia M. Chandler, Kristan L. Staudenmayer & Stephanie D. Chao, Firearm Legislation Stringency and Firearm-Related Fatalities Among Children in the US, 229 J. Am. Coll. Surgeons 150, 152 (2019))); id. at 22 (arguing that studies “underscore[] the importance of minimum-age restrictions” (quoting Katherine A. Vittes, Jon S. Vernick & Daniel W. Webster, Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership, 19 Inj. Prevention 26, 29- 30 (2013))). 10 Birney v. Del. Dep’t of Safety & Homeland Sec., 2022 WL 16955159, at *1 (Del. Ch. Nov. 16, 2022). 6  The plaintiffs alleged that H.B. 451 violated Article I, Section 20 of the Delaware Constitution by infringing the rights of individuals aged eighteen to twenty-one to own firearms. Although the complaint raised only a state constitutional claim, the plaintiffs alleged in the complaint that the Second Amendment is a “floor” that controls the “right to bear arms both in and outside of the home.”11 Specifically, the plaintiffs pled that the Superior Court could not properly evaluate H.B. 451’s constitutionality using an interest-balancing test, also known as “means-end scrutiny,” and urged it to apply the recent “history and tradition” test announced by the U.S. Supreme Court in New York State & Rifle Association, Inc. v. Bruen.12 The U.S. Supreme Court held in Bruen that any restriction on the Second Amendment’s right to bear arms had to fit within the Nation’s “historical tradition of firearm regulation.”13 H.B. 451 failed this test, the plaintiffs alleged, because it 11 App. to Answering & Cross-Opening Br. at B19 [hereinafter B_] (Pl’s First Am. Compl. for Decl. Relief at 4 [hereinafter Compl.]). 12 597 U.S. 1 (2022). 13 Id. at 24. The Court later held that while a challenged regulation need not have a “historical twin,” it must be “relevantly similar” to a Founding-era firearm regulation. United States v. Rahimi, 602 U.S. 680, 692 (2024) (quoting Bruen, 597 U.S. at 29). The Court has stressed that the similarity of a historical analogue’s “purpose and operation” – while not dispositive – is important to the analysis. United States v. Hemani, 146 S. Ct. 1677, 1686 (2026). 7 acted as a ban on commonly-used firearms, a practice they claimed does not fit within the country’s history and tradition of firearms regulation.14 The State responded that, under settled Delaware Supreme Court precedent, Delaware courts use means-end scrutiny to evaluate state constitutional challenges to firearms legislation. Under this Court’s most recent decision, Bridgeville Rifle & Pistol Club, Ltd. v. Small, to sustain the legislation, the State must show (i) an important government objective which is more than “a general safety concern” justifying the legislation; (ii) the legislation is substantially related to achieving that important government objective; and (iii) the legislation does “not burden[] the fundamental right to bear arms in self-defense more than is reasonably necessary to ensure that the asserted governmental objectives are met.”15 The State argued that the legislation met all three requirements. According to the State, the Bill was substantially related to preventing gun violence among young people – an important and tailored objective. And it did not unreasonably burden firearm rights because it did not affect shotgun or muzzle-loading rifle access, 14 B21 (Compl. at 6) (“Bruen, like Heller before it, also made clear that a firearms ban, like H.B. 451, that bans arms in common use by law-abiding citizens, for lawful purposes, cannot be consistent with the Nation’s historical tradition of firearms regulation and cannot stand.” (citing Bruen, 597 U.S. at 21-22; District of Columbia v. Heller, 554 U.S. 570, 625 (2008))). 15 176 A.3d 632, 656 (Del. 2017) (citing Doe v. Wilm. Hous. Auth., 88 A.3d 654, 666-67 (Del. 2014)). 8 supervised recreational activities, public safety professionals, and allowed other avenues for firearm access through the concealed-carry permitting process. While disputing the validity of the intermediate scrutiny test, the plaintiffs countered that even if it applied, H.B. 451 faltered on its third requirement, as it overburdened the right to bear arms in self-defense by the age group. C. Ruling on cross-motions for summary judgment, the Superior Court began its analysis by explaining that it must follow this Court’s decisions in Doe v. Wilmington Housing Authority16 and Bridgeville, each of which applied intermediate scrutiny to decide a Section 20 challenge. It stated, however, that even if it “were permitted to discard the test adopted by the Delaware Supreme Court – which it is not – [it] remains unconvinced the Bruen framework would be preferable for analyzing Section 20.”17 The court pointed out that many courts nationwide have found Bruen difficult to apply, leading to inconsistent rulings. As it observed, “[t]he Third, Fifth, and Eighth Circuits have struck down laws they found infringed upon the rights of 18-to-20-year-olds. The Fourth, Tenth, and Eleventh Circuits upheld strikingly 16 88 A.3d 654 (Del. 2014). 17 Birney v. Del. Dept. of Safety and Homeland Sec., 345 A.3d 1037, 1054 (Del. Super. 2025) [hereinafter Op.]. 9 similar laws, finding restrictions on the Second Amendment rights of 18-to-20-year- olds fit within the Bruen framework.”18 Turning to the first step in the Bridgeville analysis, the court found that protecting “the safety of those under the age of 21 years old and the safety of their communities”19 was important and not a mere “general safety concern” because it “targets a specific subsection of the population, as opposed to the indiscriminate regulations present in Doe.”20 As to the second step, the court found “enough evidence in the record to show that preventing 18-to-20-year-olds from purchasing or possessing a firearm would necessarily relate to preventing them from committing firearm-related offenses.”21 But the court ruled against the State on the third requirement. It found that H.B. 451 unreasonably burdened the plaintiffs’ right to keep and bear arms for self- defense. According to the court, the law’s carveouts for shotguns and muzzle- loading rifles protected the right to keep and bear arms for hunting and recreational 18 Id. (citation modified). 19 Id. at 1058 (quoting App. to Opening Br. at A73-74 [hereinafter A_] (Defs.’ Answering Br. in Opp. to Pl.’s Mot. for Summary Judgment at 13-14)). 20 Id. at 1059. 21 Id. at 1060. 10 use.22 But that carveout did not address self-defense because it did not include handguns, “the quintessential self-defense weapon.”23 Even though H.B. 451 had a concealed carry carveout for handguns, the court identified three licensing scheme deficiencies under intermediate scrutiny. First, the court viewed the licensing scheme as giving the Superior Court absolute discretion to grant or deny a permit.24 Second, the court found that some requirements for obtaining a permit, like what constitutes “good moral character,” were vague.25 And third, the court determined that the permit process lacked appellate review.26 For these reasons, the court discounted H.B. 451’s concealed carry permit carveout and held that H.B. 451 resulted in a near “total ban” on young adults’ right to bear arms in self-defense.27 According to the court, H.B. 451 infringed the right of individuals 22 See id. at 1063. 23 Id. at 1064 (quoting Heller, 554 U.S. at 629). 24 Id. at 1065-66. 25 Id. at 1065. 26 Id. at 1066. 27 See id. at 1064-66. During briefing in this Court, the State filed motions to remand for further fact development and to suspend briefing. According to the State, the Superior Court found on its own initiative and without a record that Section 1441’s concealed carry regime was overly burdensome. Furthermore, the State claimed that it discovered that Birney had obtained a concealed carry permit months before filing the operative complaint in the Superior Court. He was not, therefore, subject to H.B. 451’s restrictions and lacked standing to challenge the legislation. We denied the motion to suspend briefing and elected to consider the motion to remand if needed with this decision. 11 aged eighteen to twenty “to keep and bear arms for the defense of self, family, home and State” and was therefore unconstitutional.28 D. In their cross-appeal, the plaintiffs argue that the Superior Court erred by applying intermediate scrutiny. First, they claim that the intermediate scrutiny standard applied in Doe and Bridgeville arose from the then-prevailing law in the U.S. Court of Appeals for the Third Circuit.29 They say that the Third Circuit’s recent decision in Lara v. Commissioner Pennsylvania State Police, applying Bruen to strike down a Pennsylvania firearm ban on young adults during declared emergencies, requires us to apply Bruen to invalidate H.B. 451.30 Second, they argue that the Bruen “history and tradition” test is more rights-protective than intermediate scrutiny. Therefore, they claim, intermediate scrutiny now falls below the threshold 28 Id. at 1066 (quoting Del. Const. art. I, § 20). The court concluded that: [a]t a minimum, some provisions of H.B. 451 infringe on the right of a subsection of adults, aged eighteen to twenty, to exercise their right to “defense of self, family, home and State.” Accordingly, those provisions violate the Delaware Constitution and are unenforceable. H.B. 451’s provisions that do not affect the rights of 18-to- 20-year-olds – such as those outlining the rehabilitative services offered to those under the age of eighteen – remain intact. Id. (quoting Del. Const. art. I, § 20). 29 Answering Br. 12-13. 30 125 F.4th 428 (3d Cir. 2025); Answering Br. 13-14. 12 of minimum rights provided by the federal Constitution.31 Finally, they contend that Section 20 is “broader” than the Second Amendment, and therefore we must apply Bruen or some other test that is at least as rights-protective.32 The State counters that the organizations lack standing to challenge H.B. 451 and to file a cross appeal.33 On the merits, the State argues that intermediate scrutiny is the correct standard because federal law does not control our Section 20 jurisprudence, Bruen is not more protective than intermediate scrutiny, and Lara is distinguishable and not controlling precedent.34 Finally, the State contends that if we adopt Bruen, H.B. 451 passes constitutional review for two reasons – first, the plaintiffs are an excluded class for Second Amendment purposes; and second, H.B. 451 conforms with the country’s history and tradition of firearm regulation, as demonstrated by restrictions during the founding and reconstruction eras on purchasing firearms, as well as surety laws, university firearm restrictions, and vagrancy laws.35 31 Answering Br. 14. 32 Id. at 26-27. 33 Reply Br. 29-32. 34 Id. at 24-29. 35 Id. at 35-45. 13  In its appeal, the State argues that the court correctly applied intermediate scrutiny, but that its ultimate holding should be reversed due to three compounding errors. First, the State contends that the court improperly made a finding of fact – that the concealed carry permit process is entirely discretionary – when nothing in the record explains how the permitting process operates, including its approval percentages or timeline.36 According to the State, this finding was especially problematic in light of the U.S. Supreme Court’s contrary finding in an unrelated case that 11 Del. C. § 1441 creates a de facto “shall issue” – i.e., mandatory – licensing regime.37 Second, the State contends that the court erred by holding that it could not consider the mitigating effects of a discretionary carveout when assessing H.B. 451’s burden.38 And finally, the State asserts that the court incorrectly concluded that H.B. 451 lacks any meaningful avenue for young adults to access self-defense weapons.39 On appeal, we review questions of law, including a legislative act’s constitutionality and standing questions, de novo.40 A plaintiff seeking to declare a 36 See Opening Br. 43-44; Reply Br. 17, 21. 37 Opening Br. 44. 38 Id. at 46. 39 Id. at 25-40. 40 In re COVID-Related Restrictions on Religious Servs., 326 A.3d 626, 638 (Del. 2024). 14 state law unconstitutional must overcome the “strong judicial tradition” of presuming “the constitutionality of a legislative enactment.”41 “Legislative acts should not be disturbed except in clear cases . . . and should not be declared invalid unless [their] invalidity is beyond doubt.”42 We proceed in three parts. In Section II we explain that the State waived its standing arguments on appeal. In Section III we explain why we apply our precedent and decline to adopt the U.S. Supreme Court’s history and tradition test. And finally, in Section IV, we explain how the Superior Court erred in its state constitutional analysis. II. A. Standing is “the right of a party to invoke the jurisdiction of a court to enforce a claim or redress a grievance.”43 We treat standing as a threshold issue to “ensure that the litigation before the tribunal is a ‘case or controversy’ that is appropriate for 41 Town of Fenwick Island v. State, --- A.3d ---, 2026 WL 1468816, at *3 (Del. May 26, 2026) (quoting Roberson v. State, --- A.3d ---, 2026 WL 962171, at *3 (Del. Apr. 9, 2026)). 42 Justice v. Gatchell, 325 A.2d 97, 102 (Del. 1974) (citing Klein v. Nat’l Pressure Cooker Co., 64 A.2d 529, 532 (Del. 1949)). 43 Albence v. Higgin, 295 A.3d 1065, 1085 (Del. 2022) (citing Dover Hist. Soc’y. v. City of Dover Plan. Comm’n 838 A.2d 1103, 1110 (Del. 2003)). 15 the exercise of the court’s judicial powers.”44 “The party invoking the jurisdiction of a court bears the burden of establishing the elements of standing.”45 The standing elements in Delaware courts “are generally the same as the requirements for establishing Article III standing in federal court”46 – an “injury in fact, causation, and redressability.”47 An injury in fact “requires the plaintiff to demonstrate an injury that is ‘concrete,’ ‘particularized,’ and ‘actual or imminent, not speculative.’”48 The second requirement, causation, “requires the plaintiff to show ‘that the injury was likely caused by the defendant.’”49 Finally, the “redressability requirement generally serves to ensure that there is a sufficient ‘relationship between “the judicial relief requested” and the “injury” suffered.’”50 In other words, it requires the plaintiff to demonstrate “that the injury would likely be redressed by judicial relief.”51 44 Dover Historical Soc’y., 838 A.2d at 1110. 45 Higgin, 295 A.3d at 1086 (quoting Dover Historical Soc’y., 838 A.2d at 1110). 46 Id. (citing Dover Historical Soc’y., 838 A.2d at 1111). 47 Diamond Alt. Energy, LLC v. Env’t. Prot. Agency, 606 U.S. 100, 111 (2025) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 48 Id. (quoting FDA v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024)). 49 Id. at 111 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). 50 Id. at 112 (quoting California v. Texas, 593 U.S. 659, 671 (2021)). 51 Id. at 111 (quoting TransUnion, 594 U.S. at 423). 16  Standing in the Delaware state courts, however, differs from Article III standing in certain key respects. The U.S. Constitution limits a federal court’s jurisdiction to actual cases and controversies.52 There is no equivalent limitation in the Delaware Constitution. Instead, “we ‘apply the concept of standing as a matter of self-restraint to avoid the rendering of advisory opinions at the behest of parties who are “mere intermeddlers.”’”53 In other words, “Delaware’s courts may hear cases and controversies that the federal courts cannot.”54 Without a specific statutory grant of review, however, a plaintiff generally must satisfy Article III standing requirements.55 The State argues that all three plaintiffs lack standing. The plaintiffs concede that Birney lacks standing, both due to his age and because he holds a concealed carry permit – and has since before he filed the operative complaint.56 As for the organizational plaintiffs, they argue that the State waived its standing arguments. 52 Id. at 110 (“Article III of the Constitution confines the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ For a lawsuit to constitute a case within the meaning of Article III, the plaintiff must have standing to sue.” (internal citation omitted)). 53 Higgin, 295 A.3d at 1086 (Del. 2022) (quoting Dover Historical Soc’y., 838 A.2d at 1111). 54 Id. at 1086-87 (citing Reeder v. Wagner, 974 A.2d 858, 2009 WL 1525945, at *2 (Del. June 2, 2009) (TABLE)). 55 See id. 56 Cross-Reply Br. 9 n.3; see also Ex. B to Mot. to Remand 6 (March 6, 2026 Letter from Jennifer Kate Aaronson to Francis G.X. Pileggi) (noting DOJ records reflect Birney’s application received by DOJ on Nov. 14, 2022, and granted by the Superior Court on January 4, 2023)). 17  The State concedes that it did not make its standing arguments in the Superior Court.57 It also did not make the argument in its opening brief on appeal. Either omission typically results in waiver, which means that the lack of standing argument cannot be pursued on appeal.58 Relying on our decision in Employers Insurance Co. of Wausau v. First State Orthopaedics, P.A., however, the State argues that litigants cannot waive standing requirements and therefore standing can be raised at any time.59 It is true that, as an alternative basis for its holding that a party did not waive a standing argument, this Court in Employers Insurance stated that litigants cannot waive standing requirements.60 But the Court was tracking standing under federal law, where, as explained above, standing is jurisdictional and cannot be waived.61 And in Employers Insurance, the Court recognized the difference between standing as a jurisdictional matter under federal law and as a prudential matter under 57 Reply Br. 29. 58 Del. Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the opening brief shall be deemed waived and will not be considered by the Court on appeal.”). 59 312 A.3d 597, 612-13 (Del. 2024). 60 Id. at 613. 61 Id. at 607 (explaining the standing requirements “[u]nder Article III of the United States Constitution.”); see In re Pressman-Gutman Co., 459 F.3d 383, 402 n.20 (3d Cir. 2006) (“Article III standing, . . . of course, is not subject to waiver.”) (citing United States v. Hays, 515 U.S. 737, 742 (1995)). 18 Delaware law.62 We reinforce that distinction here between federal and Delaware law.63 In Delaware, standing is not jurisdictional and is therefore waivable.64 By not raising the issue below or in its opening brief on appeal, the State waived its standing argument as to both organizational standing and standing to cross-appeal.65 62 Empls. Ins., 312 A.3d at 608 n.70 (quoting Higgin, 295 A.3d at 1086) (“Delaware’s standards for determining standing are generally the same as the requirements for establishing Article III standing in federal court. Unlike the federal courts, however, where standing may be subject to stated constitutional limits, we apply the concept of standing as a matter of self-restraint to avoid the rendering of advisory opinions at the behest of parties who are mere intermeddlers.”). 63 Higgin, 295 A.3d at 1086; see also ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability . . . .”). 64 See, e.g., Bako Pathology LP v. Bakotic, 288 A.3d 252, 270 (Del. 2022) (“[Plaintiffs] waived certain arguments by not fairly presenting them to the trial court or to this Court. For example, [they] raise two third-party beneficiary standing arguments for the first time on appeal.”); HBK Master Fund L.P. v. Pivotal Software, Inc., 2023 WL 10405169, at *21 (Del. Ch. Aug. 14, 2023) (“Respondent waived the standing argument by failing to preserve it in its pre-trial briefing.”); Harker v. Grimes, 2022 WL 3665050, at *5 n.54 (Del. Ch. May 31, 2022), rep’t & rec. approved, (Del. Ch. 2022) (“The Principal failed to raise standing in the opposition and, as such, the issue has been waived.” (citing Emerald P’rs v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003)); Am. Fed’n. of State, Cty. & Mun. Empls., Council 81 v. State, 2013 WL 4077871, at *6 (Del. Ch. July 31, 2013) (“[When] arguments are not matters of subject matter jurisdiction, they can be waived.”). 65 That a standing defense can be waived does not preclude the court, on its own initiative and at any time, from raising or considering standing as a prudential matter. We also note that, as to the cross-appeal issue, regardless of the propriety of the cross appeal, “we can affirm on the basis of an argument . . . raised below and argued as an alternative ground for affirmance on appeal.” Ginsberg v. Harleysville Worcester Ins. Co., 329 A.3d 504, 511 (Del. 2024) (citing Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995)); see also Haley v. Town of Dewey Beach, 672 A.2d 55, 58-59 (Del. 1996) (“[Appellee] may defend [a] judgment with any argument that is supported by the record, even if it questions the trial court’s reasoning or relies upon a precedent overlooked or disregarded by the trial court.” (citing United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). The plaintiffs raised the Bruen argument in the Superior Court. 19  III. We begin our review with the plaintiffs’ cross-appeal, as it controls the proper analysis for the State’s appeal. In Bruen, the U.S. Supreme Court changed course for Second Amendment challenges to firearm regulations. It reasoned that means- end tests like intermediate scrutiny allowed too much subjectivity in the legal analysis.66 Under the Court’s new test, if “the Second Amendment’s plain text covers an individual’s conduct, the [U.S.] Constitution presumptively protects that conduct” and “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”67 In Lara, the U.S. Court of Appeals for the Third Circuit applied the Bruen framework to invalidate a Pennsylvania restriction on young adults’ open carry rights during declared emergencies.68 The plaintiffs argue that we must apply Bruen and Lara to evaluate the constitutionality of H.B. 451 under the Delaware Constitution. As to Bruen, they contend that we cannot use a test no longer followed by the U.S. Supreme Court. 66 Bruen, 597 U.S. at 25 (stating that a historical approach “is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.’” (quoting McDonald v. City of Chicago, 561 U.S. 742, 790- 91 (2010)). 67 Id. at 24. 68 125 F.4th at 438-45. 20 They also claim that Bruen sets a new “floor” which intermediate scrutiny falls below. As to Lara, they note that we have looked to Third Circuit precedent in prior Section 20 challenges. We explain next, however, why we are not compelled to, and decline to, adopt a new test and overrule Delaware precedent. A. Here is the text of Article I Section 20 alongside the text of the Second Amendment: Delaware Constitution U.S. Constitution (Art. I, § 20) (Second Amendment) A person has the right to keep A well regulated Militia, being and bear arms for the defense of self, necessary to the security of a free State, family, home and State, and for the right of the people to keep and bear hunting and recreational use. Arms, shall not be infringed. We observed in Doe v. Wilmington Housing Authority that Section 20 “is not a mirror image of the Second Amendment”69 and our Section 20 jurisprudence is “not dependent upon federal interpretations of the Second Amendment.”70 The U.S. Supreme Court has also held that even if a state constitutional right has a federal constitutional analogue, that state’s court may nevertheless “reject the mode of 69 88 A.3d 654, 665 (Del. 2014); see also Bridgeville, 176 A.3d at 642 (quoting Del. Const. art. I, § 20; U.S. Const. amend. II); Randy J. Holland, The Delaware State Constitution 88-89 (2nd ed. 2017) (comparing same). 70 88 A.3d at 665. 21 analysis used by [the U.S. Supreme] Court in favor of a different analysis of its corresponding constitutional guarantee.”71 Thus, we are not required to federalize Section 20. B. The plaintiffs argue that the textual differences are immaterial because Bruen set a new floor for firearm rights that means-end scrutiny falls below. We disagree. First, as a member of the Bruen Majority explained before joining the U.S. Supreme Court, the “history and tradition” test is not necessarily more deferential to the State than means-end scrutiny. As then Judge Kavanaugh explained, “[i]ndeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny.”72 Second, as noted above, even if Bruen set a new “floor” for firearm rights, we are not required to adopt it for our Section 20 jurisprudence. It is true that states must abide by the U.S. Constitution. But the federal “floor” is enforced in state 71 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982); accord Florida v. Powell, 559 U.S. 50, 71 (2010) (Breyer, J., dissenting on other grounds) (“[A state court’s] interpretation of [its own] Constitution . . . need not track our construction of the parallel provision in the Federal Constitution.”). 72 Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). 22 courts through challenges brought under the Second Amendment.73 It does not affect our review of a state constitutional provision.74 Finally, although we have described Section 20 as “broader” than the Second Amendment, that breadth relates to the right to bear arms “outside the home, including for hunting and recreation” and the right of “defense of self and family in addition to the home.”75 It has no bearing on the test we use to evaluate a constitutional challenge to state legislation under Section 20. C. According to the plaintiffs, the Third Circuit’s decision in Lara v. Commissioner Pennsylvania State Police should control the result here.76 Lara invalidated a suite of Pennsylvania laws prohibiting “18-to-20-year-olds from 73 See Bruen, 597 U.S. at 37 (“[I]ndividual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.”). 74 In Bridgeville, we wrote that “our Delaware Constitution may provide ‘broader or additional rights’ than the federal constitution, which provides a ‘floor’ or baseline rights.” 176 A.3d at 642 (quoting Randy J. Holland, State Jury Trials and Federalism: Constitutionalizing Common Law Concepts, 38 Val. U. L. Rev. 373, 375 (2004)). We explained that our interpretation of the Delaware Constitution need not be in “lock step” with the U.S. Supreme Court’s interpretation of similar provisions of the federal constitution. Id. at 642 n. 47 (quoting Dorsey v. State, 761 A.2d 807, 814 (Del. 2000)). Of course, the federal Constitution would act as a floor had the plaintiffs also brought a Second Amendment challenge, but they chose to limit their arguments to the Delaware Constitution. 75 Doe, 88 A.3d at 665 (emphasis omitted); see also Bridgeville, 176 A.3d at 636-37. 76 125 F.4th 428 (3d Cir. 2025). 23 carrying firearms outside their homes during a state of emergency.”77 “Relying on the Second Amendment to the U.S. Constitution,” those plaintiffs sued to enjoin enforcement.78 As such, the court applied Bruen.79 Looking to Pennsylvania laws at the founding, the panel majority held that the analogue, a 1721 statute “primarily focused on preventing Pennsylvanians from hunting on their neighbors’ land,” was not similar in its “why and how” to the challenged open-carry restriction.80 Thus, the court struck down the present-day Pennsylvania restriction. The plaintiffs say this decision binds us because we have previously followed that court’s Second Amendment framework for Section 20 challenges. But Lara was decided under the U.S. Constitution. For the reasons explained above, we need not apply Bruen, and we are not required to apply Lara to challenges under the Delaware Constitution. Of course, when this Court decided Doe and Bridgeville, we used means-end scrutiny, as the Third Circuit did at that time. The plaintiffs say we should continue that trend and follow the Third Circuit’s Second Amendment decisions. For the reasons explained next, however, we believe that the means-end scrutiny test 77 Id. at 431. 78 Id. 79 Id. 80 Id. at 443 (quoting Rahimi, 602 U.S. at 692) (second quotation). 24 c