Posted on Monday, September 9th, 2013
The gun lobby has consistently tried to use the threat of lawsuits to scare communities away from enacting smart gun laws. One of the ways they have tried to do that is by claiming that laws prohibiting dangerous guns or ammunition magazines are inconsistent with the Takings Clause of the The Fifth Amendment to the United States Constitution. However, like other gun lobby claims about the Constitution, this claim is false.
The Takings Clause provides that the government shall not take “private property . . . for public use, without just compensation.”1 This provision requires the government to compensate property owners when it takes their property for public use. Most commonly, the Takings Clause has been raised in litigation related to real property (land) where the government is attempting to take or regulate the use of the property through zoning in order to benefit the general public.2
Laws banning dangerous guns—such as assault weapons—and large capacity ammunition magazines are not takings and do not require compensation. The Supreme Court and lower courts have long made a distinction between takings of property for public usage, which are takings, and legitimate exercises of state police power that result in a ban or limitation on property that is a threat to public safety or health, which are not takings.3
Recognizing this distinction, several courts have rejected Takings Clause challenges to laws banning the possession of dangerous weapons. For example, in Fesjian v. Jefferson, the District of Columbia Court of Appeals upheld a District of Columbia law that effectively banned machine guns.4 The court found that “the statute in question is an exercise of legislative police power and not of eminent domain” and therefore did not constitute a taking, even though it contained no “grandfather clause.”5 Similarly, the Eleventh Circuit in Gun South, Inc. v. Brady rejected a Takings Clause challenge to a temporary suspension on the importation of certain assault weapons, noting that the government in that case was acting “in a purely regulatory capacity and d[id] not profit from its actions.”6
Courts have also upheld such laws on the grounds that they do not deprive the owners of the entire value of these weapons. For example, in Quilici v. Village of Morton Grove, the court rejected a takings challenge to an ordinance banning handgun possession within a city, noting that “gun owners who wish to may sell or otherwise dispose of their handguns outside of” the city.7 In Silvera v. Lockyer, the Ninth Circuit upheld California’s assault weapons ban, noting that the banned weapons still retained some value.8
In short, because laws banning dangerous guns and ammunition seek to protect the public rather than to confiscate private property for public use, they are perfectly consistent with the Takings Clause of the Fifth Amendment.
- U.S. Const. Amend. V. [↩]
- See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (upholding the taking of property with compensation from lessors to transfer it to lessees in order to reduce the concentration of land ownership in the state of Hawaii); Berman v. Parker, 348 U.S. 26 (1954) (upholding the taking of property with compensation in a blighted area of Washington, D.C. in order to promote growth and public health). [↩]
- See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-669 (1887); Eggleston v. Pierce County, 64 P.3d 618, 623 (Wash. 2003) (“[C]learly, not every government action that takes, damages, or destroys property is a taking. ‘Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.’”); Hunter v. Adams, 180 Cal. App. 2d 511, 523 (1960) (“If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation.”) (citing Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 593-594 (1906) ) (other citations omitted). [↩]
- 399 A.2d 861 (D.C. 1979). [↩]
- Id. at 865-66. [↩]
- 877 F.2d 858, 869 (11th Cir. 1989). Courts have reached the same conclusion in other contexts where governments have banned dangerous things. See, e.g., Garcia v. Village of Tijeras, 108 N.M. 116, 123 (1988) (upholding a law banning pit bulls against a Takings Clause challenge because “[t]he ordinance, being a proper exercise of the Village’s police power, is not a deprivation of property without due process even though it allows for the destruction of private property . . . . [T]he Village has legitimately exercised the police power to curtail a menace to the public health and safety.”). [↩]
- 532 F. Supp. 1169, 1184 (N.D. Ill. 1981). [↩]
- 312 F.3d 1052, 1092 (9th Cir. 2002). Although the Silvera court did note that the assault weapons ban contained a grandfather clause, none of its analysis suggests that a grandfather clause is required in order to avoid a Takings Clause problem. The court held that “[i]n light of the substantial safety risk posed by assault weapons that prompted the passage of the [assault weapons ban], any incidental decrease in their value caused by the effect of that act does not constitute a compensable taking.” Id. at 1092. [↩]