The Takings Clause

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Wisco

Wisco

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It’s been more than a few years since my last class on Constitutional law and I’m looking for some light to medium reading on how the Takings Clause has been previously implemented. Especially in regard to banned items.

I don’t think anyone is currently in danger of losing their property, specifically firearms, but I’m interested in the “what if?”

When states banned specific guns, were owners compensated? When auto knives were banned? How about prohibition? Booze was legal, people owned it, then it was illegal. Was anyone compensated?

How about the 1934 NFA? Amnesty or surrender, eliminating the need for the government to compensate?

Say it becomes illegal for a 19 year old to buy a rifle. If he already owns the rifle, obviously that is what it is - he already possesses it. What if that same person buys a rifle and then the possession of that rifle for someone his age is criminalized? Is that person likely to be compensated? Or must he just rid himself of the rifle before the law takes effect?

Curiosity has the better of me and if anyone can point me in the right direction to some statutes covering this, Supreme Court decisions, or state court cases, I can read from there.

Maybe this isn’t even a taking and I’m confusing public use with something that isn’t really a use. If not, what is it?

Sorry, there’s a lot going on in this post...anything anyone can offer on any of it would be greatly appreciated!
 
mjsdwash said:
wish I could help, but CA is dealing with this because they outlawed previously owned stuff, and I think the NY SAFE act mag ban was rejected before the compensation issue came to anything. It may be worth following CA. http://www.foxnews.com/politics/201...gh-capacity-magazine-ban-but-fight-looms.html
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The OP asked for legal authority on the question. News articles are not legal authority. They can not be relied upon. Stick to actual court opinions and legal journals.

Any further posts citing or linking to news articles or other non-authoritative sources will be deleted.
 
Art Eatman said:
"Takings" cases decided by SCOTUS:

https://fas.org/sgp/crs/misc/97-122.pdf
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We should note also that courts have distinguished a taking for public use, for which compensation is required, from forfeiture or seizure of contraband, for which no compensation is payable. See, for example:

  • Bennis v. Michigan, 516 U.S. 442 (1996)

  • Tate v. Dist. of D.C., 627 F.3d 904, 393 U.S.App.D.C. 270 (D.C. Cir., 2010)

  • Acadia Technology, Inc. v. U.S., 458 F.3d 1327 (Fed. Cir., 2006)
 
Art Eatman said:
In the 1950s decision about eminent domain in urban renewal, and in Kelo, "public use" morphed into "public benefit".
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Not just bad decision it expands the power of government more than any other SCOTUS decision in my lifetime.
I bet most people have never heard of it.
 
Frank Ettin said:
We should note also that courts have distinguished a taking for public use, for which compensation is required, from forfeiture or seizure of contraband, for which no compensation is payable. See, for example:

  • Bennis v. Michigan, 516 U.S. 442 (1996)

  • Tate v. Dist. of D.C., 627 F.3d 904, 393 U.S.App.D.C. 270 (D.C. Cir., 2010)

  • Acadia Technology, Inc. v. U.S., 458 F.3d 1327 (Fed. Cir., 2006)
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Thanks for those.
 
Frank Ettin said, "We should note also that courts have distinguished a taking for public use, for which compensation is required, from forfeiture or seizure of contraband, for which no compensation is payable."

If laws are passed banning certain guns, do those guns suddenly become contraband, even though previously legal? Does it depend on the specific wording of the legislation?
 
I often hear people say a variation of this: “the government can’t ban AR15s, it’ll cost them too much to buy them from the public.” 10 million ARs at $500~ per...as a crude example.

From what I’ve seen in some of these cases, that’s not applicable to items that have been made illegal, especially for public health and safety.

It seems to me that if the government prohibits a weapon for public safety reasons, there’s no compensation necessary. I’m specifically thinking of Corneli v. Moore, 257 U.S. 491 (1922) where previously legal booze was now illegal and the government keeping it from the owners was not a taking and no compensation was necessary.
 
Wisco said:
I often hear people say a variation of this: “the government can’t ban AR15s, it’ll cost them too much to buy them from the public.” 10 million ARs at $500~ per...as a crude example.
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I've heard it too, a very naive argument. Our government is seldom reluctant to spend more, impose taxes or simply print money.
 
!0 million times $500 is only $5 billion. Not a lot if money to the government when they will be buying your AR`s back with your money.
 
That's (tens of) billions in personal property, scattered among tens of millions. I don't there's been a similar financial grab of physical wealth since FDR went all Lex Luthor on the gold supply during the Depression. So I don't see it happening outside of similar desperate scenarios, and frankly, it'd be monumentally foolish to start playing games with peoples' physical means of defending themselves during such a calamity. It'd be an unreal level of social upheaval, and that's assuming it didn't kick off large scale civil unrest directly.

Honestly, even a ban on sales (like Canada's machinegun registry slow-ban) while allowing continued possession until owner death would likely not be allowed to pass. There's too many guns bought under loan, too many people count them as part of their net wealth, and all would be made worthless immediately. People don't mess around when it comes to their money.
 
Art Eatman said:
The danger is that SCOTUS would equate a ban for alleged public health and safety with public benefit.
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I think we're already past that threshold, courtesy of 'the one phrase in Heller anyone bothers to cite anymore.' You can ban militarish guns 'like' the M16 out of concern for public safety, apparently, and a district court will buy the argument.
 
But the M16 is the designation for a select fire weapon. Anything else is only a look a like.
 
One more thing - Does anyone here know how the Domestic Violence Offender Gun Ban was effected? (Lautenberg Amendment)

A category of individuals previously not prohibited were then prohibited. What was the process for ridding themselves of weaponry?
 
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