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By Louis K. Bonham

Yesterday, the Supreme Court handed down a major decision in Horne v. Department of Agriculture, in which it struck down a New Deal-era program that governed the production of raisins. In short, the program required raisin growers to give a percentage of their crop to the federal government (without payment), for the ostensible purpose of limiting the supply of raisins on the market and thus keeping raisin prices at a certain level. Among other things, the opinion unambiguously held that the Fifth Amendment’s requirement that private property not be taken for public use without payment of “just compensation” applied just as much to personal property as it did to real property. As Chief Justice Roberts wrote, “the Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.” While to most of us, this is pretty obvious, believe it or not this question had not been settled previously . . .

All well and good, you may say, but what does this have to do with guns?

While time will tell how this new analysis gets applied by other courts, it should stick a fork in some of the more extreme gun control proposals out there. For instance, suppose that California decides to ban private possession of all semi-automatic handguns, and requires that all privately-owned semi automatics in the state must be surrendered. Leaving aside the potential Second Amendment issues, it appears to me that under Horne, this would be unconstitutional unless the state provided for the payment of “just compensation” to each owner – which would be likely be so expensive as to make the entire thing unworkable.

Could this also be a basis for challenging laws like New York’s SAFE Act and its declaration that previously legally-owned weapons (and standard capacity magazines) are now verboten? Stay tuned….

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    • Except the states that would want to do it can’t afford to. Those states are all broke.

      On a federal level, I’d see it as a non-starter. But it sure would be exciting!

        • I am not in a union nor am I from NJ, so this does not affect me one whit, but the fault of “the union pensions that are bankrupting NJ” lies at the feet of the past and present governors and the legislatures. They are the ones who chose to not fund the retirement system. I am very open to the argument that the pensions are too high and can be drawn on too early (especially by police and firefighters who can often retire with full benefits before they turn fifty), but there were several years when NJ chose not to put any money into the fund.

          New Jersey is dead last of the 50 states in funding their retirement obligations . . . at something like 40% of their obligations. That is not the unions’ fault.

      • On the federal level they’d just print (digitize) another $300,000,000,000. And since inflation is taxation we’d all be paying for our own disarmament.

        • No matter what the scheme, how much it costs, or how they fund it, we end up paying for our own disarmament. The government has no money of its own – it’s all taken from the citizenry in one way or another.

        • ‘The government has no money of its own – it’s all taken from the citizenry in one way or another.’

          No truer words have ever been spoken by man. It’s not HOW they get the money, it’s the fact they HAVE the money. That’s our money they’re spending.

    • Apparently the government thinks that a $50 Duncan Donuts gift card is just compensation. So the costs would be considerably less.

    • Now if they stage a compensated confiscation (“buy back” what a stupid term) they can’t give you a $100 gift card. WAIT till they see what guns cost. Most antis think guns must be very cheap. After all those bumpkins can afford them right?

  1. So a case is good because if, in a Mad Max future, the government goes off the rails and tried to force Australian-style buy-backs, then they at least have to pay us money? I understand the connection you’re trying to make, but I wouldn’t be happy for a tube of KY if I were about to be raped.

    • The only reason the buy back was followed was because the buy back pay outs were the same, if not better, than the commercial or retail value of the now prohibited firearms.

      Also the government was also willing to pay for magazines, spare parts, and accessories. These could significantly raise the pay out amount.

      Many people used the pay out money to buy still legal firearms.

      But it should also noted that plumbing supply businesses reported a shortage of PVC pipe and end caps at this time.

  2. Ok, the raisin farmers did not pad the right pockets…..

    Now, peanuts. Then cotton, wheat, corn, et all…..

    If the American Public was informed about financial dependence regarding government the revolution would start NOW!

    Peanut ‘farmers’ simply lease the land to a grower and the ‘farmer’ get’s government subsidies yet NEVER even touches a peanut! Jimmy Carter became rich beyond our comprehension because of peanut subsidies….

    What does this have to do with guns?

    ANY AMERICAN INDUSTRY must give money to politicians to remain viable! Therein is the totality of the problem!

  3. I don’t want money for my guns. I want my guns.

    This decision has nothing to do with gun ownership. They can ban gun ownership by ignoring this decision as easily as it ignores the much stronger prohibition of the second amendment.

  4. Here’s the problem: with laws like the NY Safe Act and others like it, you are usually given a period of time to get rid of your oh-so-offensive firearm. The state will oppose a takings argument by claiming there is a ready out-of-state market for you to sell your firearm at market value and that you were given sufficient time to do so. Not saying it is right, but that would be the argument.

    • Let me try this a third time. My comment keeps vanishing.

      And the State would include the amortized estimated cost of the gun buy back in the DROS fee, so that gun owners, who are “the problem” of course, would be funding the cost of the State “buying back” their own guns. Brilliant! Heck, we already fund the cost of “recovering” guns from prohibited persons, why not?

    • No. Civil forfeiture is A-okay because DRUGS. It is no different than the myriad other laws that government justifies because PUBLIC SAFETY or because GUNS.

      Imagine the legislative proceeding …
      We really want to pass this new law because, er … um … hmm. Now why did we want to pass this new law? Oh, because DRUGS! Wait, I got it … because GUNS! Noooo, no no, it is because PUBLIC SAFETY! (scratches head) Which one did we use last time? Let’s make sure we use either of the other two justifications to make sure that no one catches on.

      We really have to find a way to take government to task for ginormous abuse of those three memes.

  5. Could this also be a basis for challenging laws like New York’s SAFE Act and its declaration that previously legally-owned weapons (and standard capacity magazines) are now verboten? I was thinking along the same lines.

    • No, it’s actually more along the lines of the government can now take anything they want so long as they pay for it. So let us say that the SHTF, the government now has the authority to take all your food, guns, ammo, and booze, but as long as the pay you fair compensation, it’s all legal.

      Of course, when the dollar isn’t worth more than a Continental, the paper isn’t gonna mean crap compared to the goods because paper doesn’t keep you alive.

      • Wow. WOW! That right there is some seriously scary sh!t. Twenty years ago, I would have said such a concept was utterly silly. These days, I can actually see it happening. Even worse, what are we supposed to do in that scenario? Try and take the government agency to court and somehow sue for the shortfall in cash valuation/payment? Like that wouldn’t take years in that scenario.

      • This has always been so with respect to real property; it is called eminent domain, the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. This power is authorized by the Fifth amendment. The only thing new is the affirmation that the duty to pay just compensation extends to personal property.

  6. The government sees fit to ignore the provisions of the 2A when fit.

    And $1000 per gun is high. They’ll do what they do with eminent domain and pay “fair market value”. That H&K you spent $900 for a few years ago, they’ll give you $300 for if you are lucky. And if you haggle too hard, they’ll just come and take it.

    • Good point. I suppose it all depends on which firearm a government entity would want to remove from circulation. The average used shotgun or hunting rifle (sans scope) probably isn’t worth much more than $150. The average used handgun probably isn’t worth much more than $250. And as for used military style semi-automatic rifles, I have a hard time believing they would fetch much more than $500 (sans optics and accessories — including accessory rails).

      Think about that. If a confiscation were the order of the day, all they really want are the upper/lower receiver and barrel and nothing else. They could then argue that a used “firearm” consisting ONLY of the upper/lower receiver and barrel (without butt stock, buffer tube, pistol grip, bolt carrier group, trigger group, foregrip, sights, accessory rails, and flash hider) is only worth about $200.

      • “The average used handgun probably isn’t worth much more than $250.”

        Judging from the price tags in their used pistol case, nobody has relayed this information to Gander Mountain.

  7. Seems to me that all of the criminals ears would perk up knowing that (most) people are unarmed and might have more money laying around the house

  8. What all of you fail to understand is that when they come to your door, they are not coming to take your guns away.

    They are coming to take you away.

    • If that ad campaign had come out today instead of the 80’s, it would immediately be branded as racist. Agitators would be calling for a raisin boycott and the ad would be pulled within days.

  9. … suppose that California decides to ban private possession of all semi-automatic handguns, and requires that all privately-owned semi automatics in the state must be surrendered. Leaving aside the potential Second Amendment issues, it appears to me that under Horne, this would be unconstitutional unless the state provided for the payment of “just compensation” to each owner …

    And you are convinced that government cares whether or not something is Constitutional because … ???

    Tragically, Horne v. Department of Agriculture will not force government to compensate firearm owners if government orders firearm owners to turn-in their firearms. Why? Because “public safety”. Or is it because guns?

    I can hear the decision plain as day …
    In the case of Joe Schmo Firearms Owner v. U.S. Department of Justice, the court hereby recognizes public safety as a compelling government interest and therefore finds that the U.S. Department of justice may confiscate firearms without just compensation.

    • Legally speaking, it would not work that way. The court would find that there was a compelling public interest in allowing the seizure–which is what courts do now in eminent domain cases–and then order just compensation as determined by the evidence presented to the court. There is no compelling public interest in not paying for property seized by the state, and the Fifth Amendment provides otherwise.

  10. Australia did it and set the values. The sheeple complied. We ain’t going there and this isn’t Australia.

  11. The problem is the bureaucrats that run the federal agencies know that they can blatantly violate the constitutional rights of American citizens with impunity for decades before a case finally reaches the Supreme Court and (theoretically) shuts down the statist party. In the meantime, all the federal bureaucracies have multi-billion dollar budgets and scores of lawyers to entangle anyone who opposes their agenda in a Kafkaesque nightmare.

    Take a look into the DOJ’s subpoena issued to for the identities of anonymous commenters. The ‘justification’ for the subpoena was that some of the commenters lashed out against a judge who made a decision they didn’t like, giving a supposed libertarian hero a life sentence when the prosecution wasn’t even asking for that harsh of a penalty. One commenter suggested she should be taken out and shot. Another answered that there’s no use in wasting a bullet when a wood chipper would do perfectly fine. Another suggested she rot in hell. Three of the six commenters who’s identity was sought had links to their own personal blogs (leaving the subpoenas for their identities pointless). Not a single comment came anywhere close to something prosecutable as a legitimate threat. So why the assault. To bleed, an organization politically opposed to such bureaucratic authority, dry. Most organizations won’t even bother fighting. Hopefully if the United States Department of Justice decides to subpoena The Truth About Guns for the identity of one Gov. William J. Le Petomane, they won’t be among those who lay down and submit to the infringement of our right to free (and anonymous) speech.

    This is how big government bureaucracies work. They have the time. They have the money. You mean nothing to them. They are the primary enemies of liberty. Sooner or later though, they always meet the wood chipper.

  12. I was excited when I read the first sentence … I (foolishly) thought that the U.S. Supreme Court finally reversed the abomination that is the Wicard v. Filburn decision. (The Supreme Court upheld government “authority” to limit how much wheat a farmer could grow on his own land for his own consumption on that land.)

    Of course not. All this decision did was say that government has to pay a farmer the value of the product that they confiscate from the farmer if the farm produces “too much” product. I am seriously disappointed. Again. Still.

  13. So do this mean ATF has to pay class 2 and class 3 NFA owners fair market value for their post-86 machine guns when they are told to surrender them before dropping their FFLs/SOTs?

  14. If the govt declares your property to be illegal, then they are seizing contraband- so they will claim they don’t owe you anything.

  15. Kinda like what I’ve been saying for awhile–fight these “gun violence restraining orders” as Fifth Amendment “takings” cases, not 2A cases.

  16. When the Gov outlaws guns, the fair market value will no longer be what you paid for it, but whatever the scrap value is, so you $1500 AR will be worth whatever the scrap yard will pay for the Aluminum and Steel which won’t be much.

  17. Per se takings vs. regulatory takings. Unfortunately, not quite on the same playing field (as of now).

    • You should elaborate, as this point refutes Robert’s entire premise.

      Eminent domain is an actual taking of property for public use, such as for a road or school, and requires just compensation as prescribed by the Constitution. Although, the 2005 Kelo decision illegally lowered that standard to the infinitely elastic “public purpose” standard.

      From the 1922 Mahon decision, government can exercise its “police power” to effect a regulatory taking, not necessarily in the sense of physically taking the property. Rather, it’s in the sense of breaking contracts or otherwise voiding property rights. No compensation is required. That’s likely what would happen with an AR15 ban or confiscation.

  18. This is only tangential to raisins and guns but this reminded me of the story my uncle told me about how he hunted polar bears on ice floes somewhere up North with the black guy who was the original purple grapes Fruit of the Loom guy.

  19. I don’t think this argument could be applied to any state wide prohibition. Here’s why. Every law that has come about prohibiting a certain firearm or magazine has allowed multiple avenues for disposal. In all cases the law stated that the items could be turned over to a licensed FFL for sale out of state. Never stated but implicit is that the owner could sell the items out of state on their own.

    So if the owner of a newly prohibited firearm has other avenues of legal compliance that will provide them with just compensation, it would be difficult to make the point that the government is FORCING the owner to give their items to the government. The uncompensated governmental option is just one of many options.

    In the case of a national prohibition, this would not be the case. So this ruling could come into play. But then again, we’d be talking about the bottomless resources of the Federal Government.

    For example, if we looked at the possibility of the Feds having to pay $2000 each to thirty million people, it would only be $60 billion. A pittance for the feds.


  20. Doesn’t seem to matter when the corrupt government gets to set the definitions. “Just compensation” could legally mean 2 cents if the government says so.


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