One From The Gut: Outlawing "Bump Stocks" Not A Taking

If you didn't know takings, and just had to venture guess whether a court would ever conclude that the outlawing of "bump stocks" (a device which attaches to a semi-automatic rifle and makes it cycle really quickly so that it works somewhat like a fully-automatic rifle) was a taking, what would you say?

If you guessed no, you'd be right. And not because you read this blog every day and know that we've been down this path before with bump stocks. After all, some cases are not resolved in the mind, but in the heart and in the gut. The Court of Federal Claims' decision in McCutchen v. United States, No. 18-1965C (Sep. 23, 2019), is one of them.

As we wrote about the earlier decision, as Justice Holmes famously noted, "'the life of the law has not been logic; it has been experience.' And experience here teaches that judges aren't terribly inclined to validate this brand of claim." Now, you can go back and find tons of cases that conclude the government banning something because it has become bad does not infringe on the property rights of the owner who acquired that something when it was not considered bad. See Miller v. Schoene, 276 U. 272 (1928) (sorry red cedar tree owners, we think that apple trees are more important than yours); Mugler v. Kansas, 123 U.S. 623 (1887) (Carrie A. Nation was damn good at rent seeking). 

But can you square those cases with the principle in Armstrong v. United States, 364 U.S. 40 (1960) which concluded that the Takings Clause (sorry, Professor Kochan) was designed to make one person bear the economic burden of public benefits? And putting aside the policy question of whether bump stocks are truly evil (after all, you can apparently fire a semi-auto rifle that way without any extra devices, although they do make it easier), after the grotesque misuse of bump stocks in Las Vegas, it certainly is a reasonable claim to say that these things have become toxic, and thus a public good to ban them. But why should Mr. McCutchen take the sole economic hit for us coming to realize these things are no good? 

Unfortunately, the CFC (like many other cases) doesn't address that tough issue. Indeed, the opinion does not even refer to Armstrong or the Takings Clause's cost-spreading rationale. It simply repeated the trope that the ban was a valid exercise of the government's regulatory power (which, we think was not really a question), and thus no taking:

In this case, Plaintiffs’ bump-stock devices were not “taken for a public use,” within the meaning of the Takings Clause. Instead, because the devices have been designated as machineguns under ATF’s regulatory authority, they are subject to 18 U.S.C. § 922(o), which makes their possession a criminal offense. ATF, in the exercise of its police power, directed that owners of the devices must either destroy or abandon them at an ATF office, to avoid prosecution. Because the prohibition on possession involved an exercise of the government’s police power, there was no taking within the meaning of the Fifth Amendment.

Slip op. at 10. As we've noted before, this may be the right result, but this analysis is very unsatisfying. A takings claim like this doesn't challenge the validity of the ban (Lingle, anyone?), but instead says "if you are going to ban these things, the pubic needs to provide compensation." Thinking out loud here, might these type of claims be better resolved by concluding that it is a background principle of property law that you never have a right to keep using property that the public determines to be noxious? We're not sure, but that seems like a better way to look at it rather than the empty "is this an exercise of the police power or of the eminent domain power" question that is easily answered, but does not get to the foundational issue. 

The specifics: the CFC held that the ban was not a physical taking because "[p]laintiffs were not required to surrender possession of their devices to the government." Slip op. at 12. Again, a clever sleight-of-hand, but come on, being told that the thing is Kryptonite and no one can touch it certainly looks like a physical taking (or at least an infringement on another perhaps even more fundamental property right, the right to keep, as Professor Kochan wrote).

And the backup Penn Central argument was waived by not being raised in McCutchen's opposition to the government's motion to dismiss (don't worry, plaintiff, you would have lost that argument anyway). 

Is this the end of the story? Probably not, and given the situation, we would not be surprised by an appeal to the Federal Circuit and maybe even higher. After all, these cases are not about the head, but about the gut. 

McCutchen v. United States,...