Sen. Feinstein will soon propose that so-called assault weapons and “large capacity feeding devices” currently in the hands of gun owners cannot be transferred after her law becomes effective. From what’s been written and discussed, transfers would include both inter vivos (between living people) transfers, like sales and gifts, as well as transfers upon death, such as by will or “intestacy” (dying without a will). There are also proposals in state legislatures empowering state governments to ban and seize all “evil’ guns and magazines currently possessed by private parties. While not in the Feinstein proposal, seizure remains an issue that makes our blood run cold . . .
The possibilities raise the question whether any government can seize or “restrain the alienation” – prohibit transfers — of firearms and rifles without paying the owner or heirs some form of compensation. I suspect that the Supreme Court may have to face this question at some time in the future, so we might as well try to figure out the answer for them right now.
Eine Kleine Backgroundmusik
The subject matter of this brief post – condemnation and confiscation — has been the subject of hundreds of cases and treatises running to many thousands of pages. This area of law cannot be covered fully or perhaps even adequately in a short article. However, it’s fair to say that government has the power to take private property for public use. This rule goes back to England, where all property belonged ultimately to the King. It was called dominium eminens, or as it’s called today, eminent domain. The process of taking private property is called “condemnation.” Almost everybody has heard these words and phrases.
In colonial America, land was often taken by government for roads and bridges, and the owners were given nothing. Nada. Niente. Bupkis mit kuduchas.
In one case, land was seized from a colonial farmer to build a toll bridge, which wasn’t uncommon in a world where all land belonged to the King. The property was taken at musket-point since the farmer was offered no compensation and would not have accepted compensation even if offered. To add insult to injury, the uncompensated owner was then required to pay for the privilege of passing over the bridge in order to traverse his own property. The colonial governor didn’t even give the poor bastard an E-Z Pass.
The Founders didn’t like that. What they did like was private property, and they were dedicated to the proposition that the government shouldn’t be allowed to take it without restrictions. So, they put the Due Process Clause into the 5th Amendment. It reads:
“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”
The 5th Amendment did not specify the nature of the due process owed to a person who had been deprived of property. The Founders believed that what constitutes due process should be evaluated on a case by case basis. Due process might involve a hearing, a trial, state legislative action, an act of Congress or a combination of two or more of the foregoing. But whatever process was due, it was decided that people were entitled to it.
Due process is certainly important, but the Founders felt that due process alone wasn’t enough protection for life, liberty and property. So, the Founders smartly added the “Takings Clause” of the 5th Amendment, and it’s written so that government can’t just snatch a person’s stuff without so much as a thank you. Even the government has to pay. Here’s the clause:
“[N]or shall private property be taken for public use, without just compensation.”
The 5th Amendment was initially applicable only to the federal government. However, the Supreme Court has held that all of the 5th Amendment was “incorporated” by the 14th Amendment and binds the states.
Condemnation can be thought of as a forced sale, for a fair (“just”) price. The way it usually works is that the government condemns the property by judicial or other proceeding, and offers a price that it considers fair. Usually, the owner insists on a better price, and the game is afoot. The final price is resolved by negotiation or by a verdict.
Sometimes a government “takes” the property without paying the owner, and the owner brings a case against the government for compensation. That’s called “inverse condemnation.” Inverse condemnation cases usually revolve around a government regulation or order that has the effect of a taking, without any actual governmental appropriation of the property.
The basics seem fairly easy to understand, but they aren’t. Even a cursory reading of the Takings Clause instantly raises a whole bunch of questions and red flags. First, what is private? Second, what is property? Third, what is a taking? Fourth, what is a public use? Fifth, what is just compensation? 5th Amendment, five questions. There are a lot more questions, but those five are the big ones and while the questions may be obvious, the answers are anything but. As any good lawyer will agree, nothing can be assumed; everything must be proven. This is true for facts and doubly true for legal theories.
What Is a Public Use?
The “public use” question – really two questions, but they can be lumped together because of one case — must be handled first, since without a public use there can be no condemnation at any price, no matter how magnificent the payment may be. Based on the far reaching case of Kelo v. City of New London, just about anything that the government wants to do, except violating the Constitution or its own laws, might be considered legitimate “public use” under the Takings Clause.
Kelo legitimized a greedy government’s taking of people’s homes – their castles — so that the property could be handed over to a greedy developer to build a shopping center that nobody else wanted. And what was the governmental purpose in Kelo? Money. The shopping center would pay more taxes than the homeowners who were being thrown out of their homes, so the homeowners had to go.
The much-despised Kelo case, which is widely regarded as a slap in the face to property owners, greatly expanded the ability of government to take property by eminent domain by expanding the meaning of “public use.”
In Kelo’s aftermath, it seemed that the Supreme Court had lost all respect for private property, but that’s not necessarily true. Kelo provided guidance for only one of the big five questions – ie., what is a public use? The analysis doesn’t end once the purpose is considered justified. Switch focus to some other cases and see how they answer the other three questions, and how they impact potential firearms and magazine laws.
What is Private?
You’d think that “private” means it’s owned by a human being or company and not by a government, but that’s not necessarily so. In the recent case of Arkansas Game and Fish Commission v. United States, the land that was claimed to have been taken belonged to an agency of the State of Arkansas. Normally, that would be considered “public property,” not private, rendering the Takings Clause inapplicable. Anyone who bet that way would have lost – the Arkansas property was treated as “private property” within the meaning of the Takings Clause.
Based on the Arkansas case and previous cases cited in it, it’s a fair guess that property not owned by the taking government and taken by that government from a person, entity or “lower” government is sufficiently “private” to trigger the application of the Takings Clause. Stuff in a private person’s gun locker clearly should qualify as “private.”
What is Property?
“Property” encompasses tangibles like goods and land. It also covers intangibles like patents, trademarks, development rights, profit expectations and contract rights. In other words, it’s a very broad category. It would be easier to list what isn’t property than what is.
It’s very well-settled law that property isn’t one right but a whole bunch of rights. This is called the “bundle of sticks.” To have, to use, to consume, to sell, to destroy, to give away, to leave to heirs, even to apply pink Cerakote to a Glock, all these “sticks” and others are part of the bundle. Owners have the right to prevent others from having, using, consuming, selling, destroying, giving away, leaving to heirs or applying pink Cerakote to the property. “Others” includes adverse claimants, trespassers, thieves, robbers, muggers and – yes — the government. A restraint on alienation would pull one of the sticks from the bundle. Seizure pulls them all.
What is a Taking?
There are situations where the government takes private property and is not required to pay for it. When the government seizes illegal narcotics, for example, no payment is due. When the government takes dangerous products off the market, it doesn’t pay any compensation. It’s exercising power to assure public safety, not the power of eminent domain. Or consider a structure, like a house, that has become unsafe. If the homeowner chose not to repair or replace it, then the property would be seized and the house demolished at the owner’s expense.
Such seizures in the interest of public safety are usually called “confiscation,” rather than condemnation. So, would restraining alienation constitute confiscation or condemnation? Would seizing the guns be confiscation or condemnation?
Let’s start with alienation. Pennsylvania Coal Co. v Mahon, a 90 year old case, muddles the issue for us. The case involved a regulation that limited what a coal company could do to mine its coal. The company’s land was not seized, but it was made subject to a strict prohibition against mining the coal because mining was likely to cause public harm. The Court in that case analyzed the magnitude of the loss in the property’s value and found that when a reduction by regulation reaches a certain point, the government must compensate for it, public safety be damned.
Does restraining alienation cross the line? Thanks to Pennsylvania Coal and other cases, there is no easily understood rule about pulling a stick from the bundle in the interest of public safety, thereby triggering a Fifth Amendment “just compensation” payment. The cases are all over the place, and often contradict each other while seemingly adhering to the principal of stare decisis that requires judges to stand by decisions and respect precedents. For example, New York’s “Landmarks” zoning scheme, which cost building owners billions in lost value without compensation, was upheld. A small city’s open space plan that cost a landowner nothing required compensation. The cases go back and forth.
All we know for sure is this; as of today, if there’s something taken in the interest of public safety that doesn’t reduce the value of the legal property to the owner by “too much,” whatever that means, then compensation isn’t required. Restraining alienation? Maybe it triggers just compensation, and maybe it doesn’t. Seizing the guns? That’s a whole different ball game. How could an outright seizure not require payment?
What is “Just Compensation?”
Assuming that compensation is required for both seizures and alienation restrictions, the question of how much might be the most challenging question of all. It is certainly the basis of more condemnation trials than any other issue. Inverse condemnation cases – where the first issue is whether there was a taking in the first place – are not all that common. True condemnation cases, where the government is alleged to have paid too little, are almost an everyday occurrence and very fractious.
The focus of just compensation is payment for the actual, real economic loss. And that loss must be proven, not just alleged. Surely, a father’s cherry AR, the scoped, accurized marvel with the heavy target barrel and Giselle trigger that he used to hunt hogs with his son, may have great sentimental value to the son. Likewise, the M1 Garand that granddad carried on D-Day is priceless to his family. However, sentimental value is not economic value. So what is the economic value of that prized AR or Garand? What is the value of a magazine that can only feed an illegal gun?
I don’t know.
Why Raisins are like Guns
Under a Depression-era law, raisin growers and packers are required to give – give! — the federal government a big share of their raisins every year. In 2002, the “reserve tonnage” was equal to 47% of the crop. Holy crop! And the government does not pay the growers and packers for the raisins. No, it just takes them for nothing. Nada. Niente. Bupkis mit kuduchas. There ought to be a law against the government taking private property without paying for it. Right?
Wait. The growers say that there is. It’s called the 5th Amendment. The government claims that there’s no taking, just a regulation for the good of the industry, to stabilize prices, and it’s okay for the big G to grab the growers by the raisins.
The growers brought an inverse condemnation case that found its way to the 9th Circuit. See, nuts and raisins do go together beautifully. Lawyers have argued for many years that the SCOTUS should have two dockets – one to hear cases from everywhere else, and one just to review and overturn every case coming out of the Nutball Ninth. In this case, the 9th Circuit held for the government, no surprise there, but the Supreme Court has agreed to hear the case.
Despite the fact that raisins and firearms having little in common, the case bears watching because the issues will be raised again if and when anaconda-like gun restrictions are foisted on the American public for their own good. Horne vs. USDA might be decided on narrow procedural grounds, or it might define once and for all when a taking is a taking.
Does the Feinstein bill make more sense now? She did not propose a seizure of guns because a 5th Amendment taking of maybe 200 million guns would cost the government perhaps $80 billion or more in compensation and billions more in infrastructure and enforcement. It might also cost lives. There are people who treasure their guns and independence and would violently resist confiscation. Restrictions, on the other hand, may cost nothing, and the people affected by the restrictions won’t have any beef until they’re dead.
Feinstein’s bill is an obvious end-run around not just the 2nd Amendment, but also the 5th. She did us no favors by grandfathering the guns. She screwed us, and the Constitution.
No taking that violates the Constitution, even one that richly rewards property owners, can stand.
So along with the 5th Amendment issues, SCOTUS will need to decide whether the taking of firearms, or one of the sticks in the firearms bundle, violate 2A. It’s likely to do so in the fullness of time, maybe after the pro-2A judges die off and are replaced by the President’s hand-picked sock puppets.