Three Times The Pain, And Your Own Self To Blame*

So the federal government tells you that the device you are making is not a "machine gun" and you go ahead and start to manufacture them.  Times change, though, and three years later "upon further review" (as they say in the NFL), the government tells you that the device is is an illegal "machine gun" and that you can't sell it to anyone but law enforcement agencies.

In Akins v. United States, No. 08-136C (July 24, 2008), the Court of Federal Claims dismissed a claim that the government's reversal of position amounted to a taking of property without compensation. 

The plaintiff had obtained a patent from the U.S. Patent and Trademark Office for a device to increase the rate as which a semi-automatic rifle fires.  (Go here to view the patent.)  In other words, it would make a rifle shoot faster.  The Bureau of Alcohol, Tobacco, Firearms and Explosives regulates these things, so the plaintiff submitted his plans to the ATF and asked whether it would be considered a machine gun under federal law.  The ATF said no, it wasn't, and the plaintiff was in business.  Three years later, the ATF had second thoughts.  This is a machine gun, it said, and "overruled" its earlier determination. 

The plaintiff filed suit in the CFC under the Tucker Act for compensation for the physical and regulatory taking of his property.  The court held that the ATF was exercising the "police power" because it was taking the action to "prevent public harm," and consequently its action was not a taking.  Slip op. at 4-5.  That logic is somewhat suspect, especially the court's citation to Amerisource Corp. v. United States, 525 F.3d 1149 (Fed. Cir. 2008), for the proposition that "so long as the government’s exercise of authority was pursuant to some power other than eminent domain, then the plaintiff has failed to state a claim for compensation under the Fifth Amendment.”  Slip op at 6.  As we noted in our post on Amerisource, that's not right.  It is one thing for the government to abate a nuisance under the police power and not be liable for a taking, but not every use of the police power is a nuisance abatement, and all exercises of the police power are not immunized from liability just because it may be an exercise of the police power.  Besides, if the taking was pursuant to the federal government's eminent domain power, the plaintiff wouldn't be a plaintiff in the CFC, he'd be a defendant in a district court.  The Fifth Amendment is self-executing and compensation is owed whenever there is a taking, even if the government doesn't voluntarily provide it, and even if it is using its police power.

The court was on firmer ground when it also held that the plaintiff's interests did not rise to the level of protected property because guns are one of those areas that the government regulates heavily and is subject to "pervasive Government control."  Slip op. at 6.  The decision has heavy overtones of nuisance law, given that devices to increase the cyclic rate of semi-automatic rifles probably don't have much public utility.  Gone are the days when General Thompson could advertise his "trench broom" as a weapon cowbows should carry to shoot up rustlers. 

The case should not be read too broadly and applied outside of the limited area of a heavily-regulated industry.  A property owner's use of land, for example, is not inherently nuisance-like and the right to use property is fundamental.  As the Supreme Court noted in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), "[t]he right to build on one’s own property – even though its exercise can be subjected to legitimate permitting requirements – cannot remotely be described as a 'governmental benefit.'"

*with apologies to Jimi Hendrix ("Machine Gun")