grandmastapoop;842701572 said:
The 5th Amendment requires "just compensation" when private property is taken for public use. If AR-15s are outlawed, the U.S. government won't have to pay a dime. Do we pay drug dealers the street value of their drugs when we confiscate those? No.
You are likely correct that this isn't going to happen. But it's not impossible. It has happened in other countries. They took away guns. It won't be easy, and it'll be costly, but I'll gladly pay my share of the costs if it means we reduce these awful mass shootings.
Actually, this not an accurate discussion of the law.
As a preliminary, SCOTUS is likely to hear a case regarding assault weapon bans (however in these bans existing owners were grandfathered to avoid taking issues). This is a second amendment case. If the court follows recent 2nd amendment decisions, the point about a fifth amendment taking is moot.
In any event, with respect to the taking issue, the distinction between confiscating legally bought weapons versus illegally acquired drugs or property used in commission of crimes should be rather apparent, and it is to the courts, and there is a ton of cases on point, even in California, where improperly seized guns resulted in fair compensation to the plaintiffs (the government doesn't have to give the guns back, and often can't having destroyed the guns). Roberts case in California, Baily case in Arizona, to name recent cases. The most famous of these is where Mayor Nagin ordered all guns in New Orleans confiscated after Katrina and the City had to pay thousands of gun owners fair market value compensation.
Essentially all federally proposed legislation that actually is intended to pass (rather than be for pure politics) or regulation has been aimed at registration or no new types of guns. They avoid seizure of existing guns because a 5th Amendment taking of maybe 200 million guns would cost the government perhaps trillions of dollars in compensation and billions more in infrastructure and enforcement. It might also cost lives. There are people who treasure their guns and independence (being nice here) and would violently resist confiscation. There are numerous internal US attorney general opinions and no less an authority than President Obama, in arguing he is not trying to take people guns away (he favors not allowing certain types of people to have guns, such those on terrorist watch lists) stated that to do so would be a taking (presumably based on the latest AG opinion). In any event, there has been no federal laws or regulation to test the issue, and given the court's view of the second amendment, the issue likely is moot.
This in not true at the local level. Courts have not found a taking when a local government bans certain types of guns because these guns can be possessed, bought and sold outside the city. Fesjian v. Jefferson (Gun owners in the District of Columbia challenged a refusal by police to register certain firearms. That refusal was based on a D.C. statute which banned the registration of new handguns and machine guns, but contained a grandfather clause). Likewise, Citizens for a Safer Community v. City of Rochester (City of Rochester ordinance which restricted the possession of automatic and semiautomatic rifles and shotguns, among other weapons. The court determined that the ordinance was not a ban, but a reasonable regulation as to the place and circumstances where the weapons could be possessed because they could be possessed outside city limits. The problem was the court then held portions of the ordinance unconstitutional on other grounds). Bu these courts have all said in dictum that a wider ban would be a taking. This is why targeted gun free zones are not a taking and probably should prevail on 2nd and 5th amendment ground (though I could be wrong on the 2nd amendment).
Also, there is no taking when there is a grandfather clause. In Silveira v. Lockyer, dealing with the California Assault Weapons Control Act (AWCA), the 9th circuit upheld most of the law (it invalidated an exception that applied to retired police officers). The court held that the AWCA was not a compensable taking of assault weapons, but only because the AWCA contained a grandfather clause, which allowed previous owners to retain the weapons, provided the owners registered them with the state. In dictum, the court stated there would be taking with respect to those existing weapon owners. The court also held that the Second Amendment did not provide an individual right to own or possess firearms, and the plaintiffs therefore lacked standing to bring a Second Amendment challenge to the AWCA. This holding seems no longer valid following the U.S. Supreme Court's later decisions in Heller and McDonald. But it seems to most legal scholars unlikely that a state (as opposed to local government) could confiscate weapons without paying compensation. That said, the State (and even the Feds), can ban certain people from having guns: e.g., felons, those subject to restraining orders, terrorist lists, etc. without paying compensation. But an outright federal confiscation seems to be a taking, assuming the legislation could survive on 2nd amendment grounds.
I have found one article by an anti-gun lobby that disagrees, but they cite cases that dealt with either local government bans or laws that grandfathered present owners.
