Legal Precedents Don’t Favor Gun Owners in Confiscation Cases

Gun Confiscation Takings Fifth Amendment Deerfield NRA Lawsuit

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One of the arguments gun rights advocates frequently make when discussing the legality of outlawing the possession of certain firearms (so-called “assault weapons”) and gear (standard capacity magazines, bump fire stocks) is that requiring gun owners to remove, destroy or turn in the banned items constitutes an illegal taking under the Fifth Amendment.

…nor shall private property be taken for public use, without just compensation.

In fact, that was one of the arguments made in the Guns Save Life/NRA lawsuit against the Village of Deerfield, challenging their ordinance banning so-called assault weapons and 30-round magazines. GSL and NRA were successful in getting a temporary restraining order to block enforcement of the new law, but as the judge wrote in his opinion, his decision had nothing to do with a Fifth Amendment conflict.

(1) The 2018 Ordinance is preempted by the FOIDCA and the FCCA and therefore unenforceable.  (2)  The 2018 Ordinance is a new ordnance (sic) and not an amendment of the 2013 Ordinance and is therefore preempted by FOIDCA and FCCA.  (3)  The 2018 Ordinance does not prohibit ownership or possession of large capacity magazines.

Gun owners take it on faith that the Fifth Amendment prohibits the confiscation or disposal of their property without just compensation. But as Dave Kopel notes in a Volokh Conspiracy analysis of the Deerfield decision, that ain’t necessarily so.

The final argument, which was advanced in the NRA case but not the SAF case, was that the confiscation ordinance is a taking of private property. Thus, “just compensation” was required under the Illinois constitution.

Two recent California cases have addressed a similar issue, in the context of a California statute confiscating magazines over 10 rounds. The federal district court for the Central District of California held that the confiscation is not a taking. Rupp v. Becerra, 2018 WL 2138452 (C.D. Cal. 2018). The federal district court for the Southern District came to the opposite conclusion, and has issued a statewide injunction against the confiscation statute. Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017). The issue is currently before the Ninth Circuit. (My amicus brief is here; it addresses Second Amendment and empirical issues, not takings).

The Illinois court decided the question by citing an 1887 U.S. Supreme Court case upholding an alcohol confiscation law enacted in Kansas. The Supreme Court stated “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriaton of property.” Mugler v. Kansas, 123 U.S. 623 (1887). Since Deerfield asserted that it was protecting “public health, safety, morals and welfare,” Mugler was persuasive. (Mugler was not binding precedent, since it involved the U.S. Constitution, not the Illinois Constitution.)

Gun owners are often astonished to find that their property can be confiscated by the government without compensation. Yet as the Mugler case illustrates, the alcohol prohibition era has furnished supportive precedent. Not all the alcohol prohibition cases came out this way, but many did. The Mugler case is one of many counter-examples to the widespread but false assertion that the Supreme Court in the late 19th century was absolutist in protecting property rights.

Read the whole thing here.

That reading of the precedents that might apply to a firearms confiscation case won’t make gun owners sleep any more soundly at night. And while we hope it never comes to that, it seems to be an issue that requires Supreme Court clarification…as uncertain as that outcome may be.

But the high court has been notoriously reluctant to take up any gun rights issues since the McDonald decision was handed down in 2010. That makes the outcome of the Deerfield case all the more interesting and important to those of us who support the right to keep and bear arms.

comments

  1. avatar Survivordude1090 says:

    If I buy it, whatever “it” is, that is within the parameters of the law, it’s mine. You want it? GFYS. Bullets first.

    1. avatar nativeson says:

      Having been decided in California and Illinois, we shouldn’t be surprised that the judges stood the 5th Amendment on it’s head. Having said that, I’m not at all confident how the Supreme Court would decide the question. We’ve seen in other cases that justices allow their biases to guide their decisions rather than the law and the Constitution. And there are 4 hard-core gunhaters on the court now and at least two others who are unknowns when it comes to gun rights. Where there’s a will, there’s a way to circumvent the Constitution.

      1. avatar Silver fox says:

        Please note, the Nazis did that to the Jewes in Germany during WWll and the result was 6 million Jewes murdered plus 7 million others. The planned population control for Americans and replacement by illegal aliens.

    2. avatar Hannibal says:

      If someone were to “GFYS” with a bullet, which would they use? 6.5 Creedmore? .50?

      1. avatar No one of consequence says:

        40mm Bofors would do nicely…

        1. avatar Rob S says:

          .9mm that the news keeps talking about

    3. avatar Roger Elllison says:

      Couldn’t agree more…fudge “precedent” and the horse it rode in on. The minute they ban guns is the minute the whole rotting thing called our Govt becomes illegitimate….as well as anything they do, say, or actions they take to enforce.

      I’ve spoken to many many gun owners on this subject and I’ve defintely seen a change in attitude over the last 15 years. I don’t know why this is…maybe with the internet people are really seeing how corrupt and overbearing the govt is. Maybe they are seeing how people in govt NEVER suffer reprecussions for their crimes(Ruby Ridge, WACO, HIllary and her email, Bill and Monica., the Banking Collapse, Bush and the Gulf War…..and lately the fact that NOBODY involved in the Parkland tragedy has been fired or even reprimanded). People are waking up to the fact that Govt does not care about the people and only their power. These people are “radical” 2nd Amendment types…hell some of them are even old blue dog Democrats….but these gun owners all tell me the same thing. They will NEVER give up their guns and if they try they’ll defend their rights with their lives……and if needed use deadly force.

      1. avatar Ed Schrade says:

        Seems like I remember a truck load of fertilizer being given away because of Waco. Of course the innocent ones always get to pay for the guilty. I do not condone this sort of activity, terrorism.

      2. avatar John in Ohio says:

        Surely, the internet helps keep people informed much more efficiently nowadays. However, the patriot movement in the ’90s had seen many awakened to the abuses of government. Unlike today, many of us encountered otherwise law abiding former felons bearing arms and weren’t inclined to snitch or have a problem with it. Nowadays, we see so-called POTG getting their panties in a wad at the mention of former felons bearing arms. That’s a gigantic step backwards, not forwards, for expression of the unalienable individual right to keep and bear arms. These faux-rights supporters, some post here on TTAG, by definition support infringement. They support gun control. In the 1990s, we turned our backs on these fools. Today, they are accepted into the ranks. Bad mojo today. They cannot be trusted as their baseline is incompatible with unalienable rights.

    4. avatar Nanashi says:

      Not with software. We really need a law to quash that.

  2. avatar Gregolas says:

    However, possession and carrying of alcohol is not a Natural Right affirmed and enforced by a Constitutional amendment. the possession and carrying of arms is.

    1. avatar CTstooge says:

      That’s why it’s difficult to draw a societal parallel to our current calculated demonization and rejection. Smokers? Gays in the 70s-80s? POTG should be constitutionally protected, but…

      1. avatar Jon in CO says:

        Are we not now an oppressed group, a minority group of people that deserve 14th amendment protection? They keep telling us we are such a small minority, and because we are a social group, we should be able to get special protection under the law. With as much demonization as there as been, we are essentially southern blacks in 1960’s America.

        I think there can be a case to be won on those grounds alone, and all violations of the 2nd can be removed as they are a direct violation of this minority group’s rights. If not, then there will have to be public evidence provided that we are not a minority group, and there is indeed 100mm+ of us nationwide.

    2. avatar davida says:

      The question is what was leagle at time of manufacture and prehapps aqusition and is the new laws creating second class citizens by denial . That does not sound like = under law to me.

  3. avatar Mystickal says:

    “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriaton of property.”

    But they’re not just prohibiting the use of property, are they – they are prohibiting the use AND possession of the property, directing owners to either sell, turn in to police, or move. I wouldn’t think that Mugler v Kansas would apply.

  4. avatar Jim Wilson says:

    First that now this. Coinsidence?

  5. avatar Indy Jones says:

    I don’t know about 5th amendment arguments, but it should never even get that far. Clause 1, article 1, section 10 of the US Constitution makes ex post facto laws illegal. Expressly, by name. Ex post facto laws are those that maie illegal an act which was legal when committed. You know, like buying an ar15…

    1. avatar Sc says:

      They would have to make purchasing the AR-15 previously illegal and prosecute you for the transaction that had already occurred for it to be ex post facto. In other words prosecuting you for purchasing it, not making you get rid of it after purchasing it. IANAL but that’s my understanding.

    2. avatar CarlosT says:

      The argument is that the act of purchasing in the past is not made illegal, but rather future possession, sale, or transfer, therefore the laws are not ex post facto.

  6. avatar Gapharmd says:

    Do to the fact that they offer other avenues of compliance I am sure they will claim to not be taking anything as it could be moved or sold.

    I do not agree with that example or the previous decisions but all I can do is point and pull in opposition.

  7. avatar Joe R. says:

    “Precedence” is the stupid shit you allowed to fall from your mouth or pen if you were wrong. AND WHEN FOUND TO BE, WE THROW YOU AND ALL OF YOUR STUPID SHIT OUT.

    Thousands of cases are thrown out each year, and people retried, due to late-find rogue justices, cooking the books investigators, doping the tests criminologists, etc.

  8. avatar Kyle says:

    “Disfavored Right”

    – Clarence Thomas

  9. avatar Write Winger says:

    What ever happened to the part in takings about “… for public use…”? I don’t see them taking weapons and magazines with compensation in order to use them to fight off invasion or restore order.

    Why is “for public use” ignored?

    1. avatar Chip in Florida says:

      For the same reason “shall not be infringed” is ignored .

  10. avatar Grumpster says:

    Smart to use one of the biggest black eyes on our Constitutional history, the banning of alcohol via 18th Amendment, as possible precedent to not compensate gun owners for banning of their firearms. At the time the Prohibition just made so much sense for public safety and was so popular. What could possibly go wrong? Well unintended consequences led to tremendous growth or organized crime and the violence it brings. But hey maybe the next big ban will go better, right?

    Also the banning of alcohol without compensation is a really bad example because alcohol is a consumable. If they banned Cheetos for whatever reason tomorrow and I had ten bags left I would cherish them and eat them over time and maybe share them with my best friends. I could probably sell them for a profit to other Cheetos lovers too.

    So if they do a widespread ban of certain firearms for public safety reasons and to get them off the streets do they really think the best way to do that is to not compensate already highly agitated gun owners upset about the ban? That would be just brilliant. Not compensating them would just encourage many more to keep their firearms or sell them to black market vendors or anyone else willing to pay for them. After that report them as lot or stolen. Just kidding as we all know that could never happen as law abiding citizens would line up to happily turn in their multi thousand dollar banned firearm collection, right?

    1. avatar FedUp says:

      The 1887 Supreme Court case cited here was based on the 18th Amendment?
      I never knew that.
      I thought the 18th was ratified in 1917.

    2. avatar Eric Lawrence says:

      The assumption is that prohibition on alcohol created a lot of unintended consequences. Follow me here…

      The government needs a way to further control the people.
      The government finds that prohibition on alcohol will create a criminal class where there was none, create violence that the government can use to then ban other things/activities like firearms, explosives, etc.
      The government uses sympathetic figures…Moms who decry the evils of alcohol…that sounds so familiar…to cajole the country into ratifying prohibition.
      Prohibition creates a criminal class of people out of thin air, causes violence that can be used to make laws regulating the things people use to cause violence (1934 NFA) and generally allows the government to further regulate the lawful activity of its people.
      Prohibition causes collateral damage to the population but only to the great unwashed masses, the connected and powerful still get their drink on as always.
      Prohibition gets repealed but the laws that were created to combat all the lawlessness created by prohibition are still on the books.
      The government comes out with more laws supported by a populace that were intentionally coerced into supporting the laws.
      The government pats itself on the back.

  11. avatar michael in ak says:

    We are way overdue for refreshing the tree of liberty

    1. avatar Ansel Hazen says:

      The information released today by the IG should pretty much put paid to that indeed.

    2. avatar davida says:

      Please just vote the bums out of office THIS YEAR AND NEXT election..

  12. avatar former water walker says:

    I foresee a rash of tragic boating accidents…what about po-leece seizing your wad of cash you just earned selling a legal product?(car,house,antique,painting). Where is due process or recourse?!? THAT is far worse and on par with Russian or Nazi secret politzi. Only going to encourage a vast(er) underground. Being an antique dealer for 25 years I have some serious insight…

  13. avatar neiowa says:

    So need to be pushing the hell out of the “taking” so that it doesn’t get lost? Private ownership is one of the foundations of freedom and the crown seizing of personal property was a central issue which lead to the American Revolution.

    So YES need to yell loudly about the statist progs seizing what does not belong to them.

    1. avatar michael in ak says:

      you just keep on yelling, that will certainly do it!

    2. avatar Ed Schrade says:

      That’s what socialists do. Maybe for the public good we should confiscate politicians and activist judges. Ten dollars each a good buy back compensation ?

  14. avatar Ralph says:

    The 18th Amendment did not prohibit the possession or consumption of alcohol, only “the manufacture, sale, or transportation” of booze. And since it was an amendment to the Constitution, by definition it could not be “unconstitutional.”

    The Federal Volstead Act that implemented the 18th Amendment also did not prohibit possession or consumption. If you had it, you could drink it. Like JFK enjoying the Cuban cigars he purchased just before he imposed the embargo.

    State laws (33 states were dry before the 18th was passed) must be considered in a different light since the incorporation of the Takings Clause was in its infancy — it was the first right to be incorporated.

    A regulatory taking occurs when the G takes away the value of property through regulation even when the property isn’t seized. Outlawing possession of certain guns and magazines would appear to do that.

    Condemnation (where the owner is paid) and inverse condemnation (where the aggrieved owner has to sue for compensation) can be very touchy subjects. When a fundamental Constitutional right is involved, issues get even touchier.

    1. avatar Nanashi says:

      “since it was an amendment to the Constitution, by definition it could not be “unconstitutional.””

      It’s entirely possible. The part that allows amendments gives restrictions to what an amendment can do, and the 17th violates one of them (deprives states of equal representation in the senate).

  15. avatar Curmudgeon says:

    If they argue that MSRs and standard capacity magazines are “injurious to the health, morals, or safety of the community,” then how can they also support providing these very same items to the police force that is supposed to be responsible for the security and protection of the aforementioned community? Using prohibition laws as precedent also falls down on these same lines. Municipalities were not handing out bottles of whisky to law enforcement as a tool to provide security to the citizens.

    1. avatar Eric Lawrence says:

      This is an excellent and so far overlooked point.

    2. avatar Ing says:

      EXACTLY. If these firearms are so injurious to the community, why are the police running around with them?

      If “assault weapons” are good only for killing massive amounts of people quickly, and police are the only ones allowed to have them…doesn’t that imply that the police are actually our enemies, preparing to massacre and murder? And what does that say about the people who want to equip the police with these instruments of mass carnage?

      To me, that sounds like a great reason why you and I should keep our weapons. Somebody needs to hold these psychos in check.

  16. avatar Mad Max says:

    I think it depends on when the prohibited items to be confiscated were procured.

    If the newly prohibited items were legally obtaned before the prohibition, then the Constitutional prohibition against ex post facto laws and the 5th Amendment’s takings clause should prevail and the prohibition/confiscation would be the same as a declaration of eminent domain and should require just compensation.

    Don’t forget that Prohibition came about through a Constitional Anendment; therefore, alcohol cases may not be good precedents to use for items protected by the 2nd Amendment.

  17. avatar John in Ohio says:

    http://www.constitutionality.us/SupremeCourt.html

    “The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court’s nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.”

    http://www.constitutionality.us/NoLimits.html

    ‘James Madison warned of an overly broad interpretation of the General Welfare clause: “There are consequences, sir, still more extensive which as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.””

    Madison continued: “… In short, sir, without going further into the subject, which I should not have here touched on at all, but for reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very nature of the limited government established by the people of America: and what inferences might be drawn or what consequences ensue from such a step, it is incumbent on us all well to consider.”‘

    1. avatar Ed Schrade says:

      Wouldn’t he be appalled at what the constitution and justice is now.

  18. avatar Aaron M. Walker says:

    The slippery slope of reasoning away constitutional rights that are bad!? What !?!? Did the DemoNazis just visit this article!? “ALL INFRINGEMENTS, PERIOD!!!! ” DOESN’T MATTER WHAT 3RD WORLD DNC/GLOBALIST KANGAROO COURT IT WAS HEARD IN !!! ” Wake up people! Fight the Future! Vote in the mid-terms like YOUR life depended on it!

  19. avatar New Continental Army says:

    And the court is in fact a tyrannical organization within our government. The courts were never meant to be the final arbitrator of the constitution, yet they magically assumed this power over time. Combine that with the clear left wing politicization of unelected judges who don’t care for constitutionality, or legal precedent, and simply rule in favor of their politics, and we have an outright threat to the constitution.

    1. avatar davida says:

      This is the unintened consiquences of not rail roading every legislater out of office for FAILURE to uphold there oath of office to defend the constitution when passing EVERY law.

  20. avatar WhiteDevil says:

    A confiscation is not a taking? How absolutely self-delusional do you have to be to write such things as a judge. I thought humans as a species were endowed with intelligence. Pure regressive leftist scum.

  21. avatar ollie says:

    Since the 2nd Amendment is about maintaining the power to overthrow a tyrannical government, the Police and US Military should be barred from possessing any weapon that citizens cannot possess. The “Playing Field” must be kept reasonably level,

  22. avatar 33Charlemagne says:

    I am a lawyer but when the courts OK the Government confiscating guns from otherwise law abiding citizens the legal system will lose the legitimacy necessary to have the rule of law. No court, even the US Supreme Court, can legitimize an unconstitutional and tyrannical act. They can only de-legitimize themselves!

  23. avatar Docduracoat says:

    The takings clause only applies if the Government takes your property and uses it for some public good, or gives it to someone else as a public good.
    Just declaring your property as contraband and forcing you to get rid of it, or destroy it is not a taking for public good.
    When marijuana was declared illegal and many homes had legally acquired marijuana, the government did not buy up all the marijuana in America.
    So they are on strong legal ground with declaring bump stocks as contraband.

  24. avatar Kyle in Upstate NY says:

    Health, safety, and morals allow the taking/confiscation of property? By that argument, anything can be taken for any reason and the 5th Amendment is worthless. All the government need do is pass a law saying it is bad for health or bad for safety or morally wrong. Note that no court probably will require them to explain how exactly weapons like AR-15s are bad for public health, or immoral, or bad for public safety (that would be the only one they could get anywhere on).

  25. avatar Southerner says:

    Indeed, not much different from special taxes on firearms and ammunition. Funny how we as gun owners support an 11% tax on firearms, (Pittman Robertson Act circa 1937), for our benefit – yet spout fourth against other special tax infringments on Second Amendment liberties!

  26. avatar Bierce Ambrose says:

    “The high court has been notoriously reluctant…”

    Both perspectives on guns are hoping or betting that upcoming changes in personnel will flip it hard their way. They know where their colleagues stand, less one or two “flip” votes. Decide now, it could go either way. Decide later, after they win n stack the court, it goes their way.

    So, the coalition of the perpetually indignant are in a spasm about those bad, evil folks being put on the bench who don’t decide the right way. Fact is, what they hate most is, much like with the “Dreamers”, the legislators being put on the hook to legislate.

    It’s not like I think they do a particularly good job with the laws they do make. Side issues and unintended consequences much? We consider it a win when some grand legislation merely wastes vast piles of money, otherwise doing nothing. But, that’s kind of the point. If they can’t do something that works, maybe get someone better. Or maybe leave that issue alone. Some things are just plain hard — well beyond the reach of making a policy, penalty, or program.

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