There’s a lot going on in the U.S. Court of Appeals for the First Circuit’s opinion in Ocean State Tactical, LLC v. Rhode Island, No. 23-1072 (Mar. 7, 2024), involving a challenge to a Rhode Island statute outlawing possession of certain large capacity gun magazines.

But unsurprisingly, we’re going to be most interested in how the court disposed of the takings challenge.

In 2022 Rhode Island added detachable “large capacity magazines” (those capable of holding more than 10 rounds of ammunition) to its existing list of can’t-own-or-possess items. If you already owned or possessed one of these things, the law gave you four options: (1) modify the mag so it will hold 10 or less rounds; (2) sell the items to a federally-licensed firearms dealer or someone out of state; (3) give ’em to an out-of-stater (Connecticut gun aficionados, you are in luck!); (4) give ’em to Five-O. There’s no payment or compensation, in case you were wondering.

That precipitated a legal challenge which included claims under (predictably) the Second Amendment, the Takings Clause, and the Due Process Clause. The district court denied the plaintiffs a preliminary injunction, and that’s how the case ended up before the First Circuit.

That court affirmed the district court’s conclusion that the plaintiffs were unlikely to succeed on their takings claim. The claim was framed as a physical taking. The court rejected the argument that Horne and Loretto compelled the conclusion that the statute worked a taking, “no matter the justification for the law.” Slip op. at 30. But those cases did not control because the magazine owners “have the option to sell, transfer, or modify their magazines.” Slip op. at 31. And “Rhode Island offered to assist … owners with the safe disposal of their soon-to-be-proscribed weapons.” Id.

Nor was there a Lucas taking either:

The only thing they may not do is continue to possess them without modification in the state of Rhode Island. We find this regulation to be the very type of use restriction that property owners must “necessarily expect[] … from time to time” as states legitimately exercise their police powers.

Id. (citation omitted).

The remainder of the opinion is devoted to whether the plaintiffs were likely to prevail on their Second Amendment and Due Process claims (they fared no better on those claims than on their takings claim).

Ocean State Tactical, LLC v. Rhode Island, No. 23-1072 (1st Cir. Mar. 7, 2024)