The gov has already argued their case if you read the regulation as written in the federal register:
DEPARTMENT RESPONSE
The Department does not agree that classifying bump-stock-type devices as machineguns results in the unlawful taking of property “for public use, without just compensation.” U.S. Const. amend. V. It is well established that “the nature of the [government's] action is critical in takings analysis.”
Keystone Bituminous Coal Ass'n v.
DeBenedictis, 480 U.S. 470, 488 (1987);
accord Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 124 (1978) (“character of the government action” has “particular significance”). The Department's action here, classifying bump-stock-type devices as machineguns subject to the NFA and GCA, does not have the nature of a taking.
A restriction on “contraband or noxious goods” and dangerous articles by the government to protect public safety and welfare “has not been regarded as a taking for public use for which compensation must be paid.”
Acadia Tech., Inc. v.
United States, 458 F.3d 1327, 1332 (Fed. Cir. 2006);
see also United States v.
$7,990.00 in U.S. Currency, 170 F.3d 843, 845 (8th Cir. 1999) (“forfeiture of contraband is an exercise of the government's police power” and does not qualify as a taking).[
7] The Takings Clause was “not intended as a limitation of the exercise of those police powers which are necessary to the tranquility of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is given.”
Chi., Burlington & Quincy Ry. Co. v.
Illinois, 200 U.S. 561, 594 (1906) (internal quotation marks omitted);
see, e.g., Holliday Amusement Co. of Charleston v.
South Carolina, 493 F.3d 404, 409-11 (4th Cir. 2007) (upholding State prohibition of video gaming machines without compensation).
In
Mugler v.
Kansas, 123 U.S. 623, 668-69 (1887), for example, the Supreme Court rejected a distiller's argument that a State constitutional amendment prohibiting the manufacture and sale of intoxicating liquors was an unconstitutional taking. The Court explained that the government's power to prohibit the “use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.”
Id. at 669. Similarly, the Supreme Court held in
Miller v.
Schoene, 276 U.S. 272, 280 (1928), that Virginia was not required to compensate owners of red cedar trees for the value of trees that the State had ordered destroyed to prevent the spread of a disease that threatened local apple orchards. “[W]here the public interest is involved,” the Court observed, “preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”
Id. at 279-80. Lower courts have likewise deemed the Takings Clause inapplicable to governmental regulation of dangerous personal property for public-safety reasons.
See, e.g., Garcia v.
Vill. of Tijeras, 767 P.2d 355 (N.M. Ct. App. 1988) (village ordinance banning possession of pit bulls was “a proper exercise of the Village's police power” and not a taking).
Consistent with these cases, courts have rejected arguments that restrictions on the possession of dangerous firearms, like machineguns, are takings requiring just compensation. In
Akins v.
United States, 82 Fed. Cl. 619 (2008), for example, the Court of Federal Claims held that ATF's ultimate classification of the Akins Accelerator as a machinegun,
see supra Part III, was not a taking. The court reasoned that ATF had acted “pursuant to the police power conferred on it by Congress” rather than by exercising eminent domain, and that the plaintiff lacked a sufficient property interest because he had “voluntarily entered an area subject to pervasive federal regulation—the manufacture and sale of firearms.”
Id. at 623-24;
see also Bennis v.
Michigan, 516 U.S. 442, 452 (1996) (“The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”). Similar reasoning led the District of Columbia Court of Appeals to hold that a DC law prohibiting machineguns and requiring their disposal or removal was not a taking.
Fesjian v.
Jefferson, 399 A.2d 861, 865-66 (1979). These precedents support the Department's conclusion that the prohibition of bump-stock-type devices as machineguns does not have the character of a compensable taking within the meaning of the Fifth Amendment.
The Department acknowledges that a panel of the U.S. Court of Appeals for the Ninth Circuit recently upheld a preliminary injunction against the Attorney General of California that relied in part on the Takings Clause in prohibiting the State from implementing restrictions on firearm magazines that hold more than 10 rounds.
Duncan v.
Becerra, No. 17-56081, 2018 WL 3433828 (9th Cir. July 17, 2018). The Ninth Circuit's order essentially adopted the district court's analysis of the Takings Clause question.
See id. at *3. The district court's reasoning on the takings question was closely intertwined with the Second Amendment inquiry, and rested on the conclusion that it was “dubious” for California to deem large-capacity magazines a public nuisance given the Supreme Court's observation that “[g]uns in general are not deleterious devices or products or obnoxious waste materials.”
Duncan v.
Becerra, 265 F. Supp. 3d 1106, 1137 (S.D. Cal. 2017) (internal quotation marks omitted) (quoting
Staples v.
United States, 511 U.S. 600, 610 (1994)). But regulation of bump-stock-type devices is fundamentally distinguishable from California's prohibition on possessing such magazines. As discussed, and as
Heller indicates, dangerous and unusual weapons are not entitled to Second Amendment protection, and may indeed qualify as deleterious devices or contraband. Other district courts have followed the reasoning of cases like
Akins and
Fesjian and rejected takings challenges to California firearm restrictions.
See Rupp v.
Becerra, 2018 WL 2138452, at *8-9 (C.D. Cal. May 9, 2018) (restrictions on “assault weapons”);
Wiese v.
Becerra, 263 F. Supp. 3d 986, 995 (E.D. Cal. 2017) (prohibition of large-capacity gun magazines).
Finally, the Department does not agree that each owner of a bump-stock-type device has a due-process right to a hearing in connection with the promulgation of this rule. The rule clarifies the scope of the NFA and GCA, general legislative enactments, with respect to bump-stock-type devices. “Official action that is legislative in nature is not subject to the notice and hearing requirements of the due process Start Printed Page 66525clause.”
Interport Pilots Agency, Inc. v.
Sammis, 14 F.3d 133, 142 (2d Cir. 1994);
see also, e.g., Bi-Metallic Inv. Co. v.
State Bd. of Equalization,239 U.S. 441, 445 (1915) (“General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard.”). Furthermore, the Department's conclusion that bump-stock-type devices are machineguns under the NFA and GCA means that owners lack a cognizable property interest in these devices for due-process purposes. As the Fifth Circuit held in
Cooper v.
City of Greenwood,firearms covered by the NFA are “contraband
per se,” and “[c]ourts will not entertain a claim contesting the confiscation of contraband
per se because one cannot have a property right in that which is not subject to legal possession.” 904 F.2d 302, 305 (1990).
![[thinking]](/xen/styles/default/xenforo/smilies.vb/010.gif "Thinking [thinking]")
