Thanks to lawprof Josh Blackman for pointing out this Order from a federal district court dealing with the "is the government's outlawing bump stocks a taking" question. See Blackman, District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power (Volokh Conspiracy).
We've delved into the issue before ("One From The Gut: Outlawing 'Bump Stocks' Not A Taking"), concluding that the likelihood of success on these type of claims -- is the DOJ changing its mind about whether a bump stock qualifies as a banned "machine gun" -- is remote. Not because there's a jurisprudentially-consistent reason why, but just because it is.
The court's order denying the federal government's motion to dismiss (without prejudice) is both cheeky (see above re Wikipedia) and an enjoyable read ("For example, state governments have determined that cocaine should be illegal because of the danger it poses to the health and safety of the people. When states first made this decision, did they owe drug lords fair market value for these now-prohibited drugs? No.").
(We read the Order in our head in Justice Breyer's questioning voice, by the way; it does sound like one of his oral argument questions.)
A couple of thoughts.
First, the a takings case against the federal government seeking compensation can be brought in a district court under the Little Tucker Act if the amount sought as compensation is less than $10,000. Since the plaintiff here was seeking compensation for a total of three now-outlawed-and-ordered-destroyed bump stocks, we're assuming that these things are not super expensive and that's why we're in a district court and not the Court of Federal Claims.
Second, the court didn't really address the takings claim (after correctly noting that "[t]akings law is difficult." Slip op. at 8). Here's a paraphrase of the court's reasoning: "yeah, there could be a takings claim for compensation here but until I know what power the federal government supposedly employed to outlaw bump stocks, I can't decide whether this is a taking requiring compensation."
The court noted with some skepticism the federal government's repeated reliance on the "police power." See slip op.a t 10 ("The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply."). Police power, however, is a "state thing" and not a "federal thing" -
This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government. Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation’s founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power. None of these powers is the police power.Then the Court re-read the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Slip op. at 10 (footnotes omitted).
The court concluded that the feds don't have police powers. By what authority, therefore, did the feds purport to outlaw bump stocks, then? I don't know, concluded the judge. Maybe the constitution tells us. Or maybe it's Wikipedia:
Perhaps there is one more place, where the collective will and knowledge of the people is expressed, that might indicate if the federal government has seized the police power from the states: the Constitution Wikipedia. But strangely, even Wikipedia has overruled neither the Constitution nor the Supreme Court
Slip op. at 12 (footnote omitted).
As we know, a court can't even get to the takings question unless it first addresses the foundational issue -- is the purported taking for a public use? Private use or purpose takings are not true takings, after all. They're due processey. So case dismissed -- without prejudice -- to allow the feds to go back and tell the court by what authority it can outlaw bump stocks (because it ain't the "police power"). In other words, "come on, DOJ, give me something."
Let's assume the feds do that and refile their motion to dismiss articulating DOJ's authority. Then what? Let's just say that we're not changing our mind on whether at that point this case has any more chance of success than others.
Memorandum Opinion and Order, Lane v. United States, No. 3:19-cv-01492 (N.D. Tex. Mar. 30, 2020)
