Argument Preview / Panel Activity

Four cases being argued next week at the Federal Circuit attracted amicus briefs. One is Modern Sportsman, LLC v. United States. In this case, former owners of bump-fire type rifle stocks assert the Bureau of Alcohol, Tobacco, Firearms and Explosives committed a taking under the Takings Clause of the Fifth Amendment. In particular, the former owners contend the ATF committed either a physical or regulatory taking by using its legislative authority to require the abandonment or total destruction of bump-fire rifle stocks. The former owners allege they complied with the ATF’s legislative rule requiring abandonment and did not receive just compensation in return. The former owners argue that the decision by the Court of Federal Claims dismissing their action should be reversed. This is our argument preview.

The former owners argue in their opening brief that the Court of Federal Claims “erred by making the determination that there is no taking ‘for public use’ within the meaning of the Fifth Amendment when the government acts pursuant to its ‘police powers’ in the interests of public health and safety.” According to the former owners, however, “[u]nder Supreme Court and federal circuit court precedents, a ‘police powers’ exception to Fifth Amendment liability for categorical takings applies only when government acts in its enforcement capacity, e.g., when it enforces an existing criminal or remedial statutory scheme, not when government acts in its legislative capacity to readjust legal rights.” Here, the former owners contend the Final Rule in question “was an exercise of the ATF’s legislative authority to make new law,” and not a “mere enforcement action or interpretation of the statutory definition of machine gun.”

Since the ATF’s action was legislative, the former owners assert the ATF’s Final Rule “was a classic taking because it totally and permanently dispossessed Plaintiffs of their tangible personal property.” The former owners contend the Supreme Court’s opinion in Lucas v. South Carolina Coastal Council should be applied for the regulatory takings analysis in this case. According to the former owners, the Federal Circuit “has recognized the applicability of the Lucas standard to personal property.” Applying this standard, the former owners conclude, “the government has a Fifth Amendment obligation to pay just compensation to Plaintiffs.”

In its response, the government argues the Court of Federal Claims correctly dismissed the former owner’s complaint for failure to state a claim. First, the government contends that “whether the Final Rule is legislative or interpretive simply has no bearing here.” According to the government, the bump-stock “devices are machine guns, and thus contraband under Federal criminal law.” The government asserts that, even if “an individual may have been able to use the good previously—whether because there was no statutory prohibition or because the Government incorrectly interpreted an existing statutory prohibition—[that] does not transform a criminal prohibition into a taking.” Second, the government submits, “[e]ven assuming that the prohibition on bump stocks was otherwise subject to a takings analysis, it amounts to neither a per se taking nor a categorical regulatory taking.” Moreover, according to the government, because the former owners “made no attempt to satisfy the applicable standard found in Penn Central [Transportation Co. v. City of New York], any such argument has been waived and is, in any event, without merit.”

In its reply, the former owners of bump-fire type rifle stocks reassert that, while there is a “narrow ‘police power’ carve-out to the Fifth Amendment obligation to pay compensation,” “the Final Rule was legislative and cannot qualify for that carve-out.” The former owners urge the Federal Circuit not to adopt the the government’s broad sweeping version of the police powers exception. According to the former owners, under such a categorical rule, “the federal government would be immune from takings liability when it exercises ‘police powers’ for a purpose it deems to be in the interests of public safety; any public safety rationale would allow the federal government to skirt takings scrutiny entirely.”

Delaware state Representative Paul Baumbach and other individual gun owners filed an amicus brief in this case in support of the government. In it, the amici argue the “ATF’s commonsense regulatory action did not violate the Constitution’s Takings Clause.” According to the amici, the “sellers and purchasers of bump stocks recognized that these devices exploited a regulatory loophole” to get around the “the longstanding federal law restricting machine guns.” Therefore, amici contend, “[b]ecause purchasers of bump stocks could not have had a reasonable expectation of economic value for their bump stocks, their Takings Clause claim fails.”

Oral arguments will be heard on Tuesday, December 8. We will keep track of this case and report on any developments.