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.