If we were to ask you for your best guess whether a state's ban of "bump-fire" stocks (a topic we've covered before) effects a regulatory taking, requiring compensation, what might you predict as the result knowing nothing else about the case?
As we noted here, it doesn't take a rocket scientist (or even a legal scholar) to figure out that a court is going to be hard-pressed to order compensation, especially where the ban isn't an outright confiscation requiring the owner to turn over the item to the government for the government's use. This is not so much a legal conclusion, but one based on the fact that few judges want to be highlighted in tomorrow's paper as having "approved" of a device that can turn a semi-auto rifle into a dreaded sturmgewehr. Especially in a state like Florida where judges are elected.
A Florida federal court has already rejected a similar challenge, and in Hunt v. Florida, No. 1D19-2143 (Jan. 28, 2021), the Florida District Court of Appeal reached the same result. There, the court concluded that bump stocks are personal property, and unless the regulation requires the owner to turn the property over to the government for the government's use, the government otherwise has a free hand to define such property as noxious, and regulate the heck out of it (to the point of uselessness). In short, the Lucas wipeout test only applies to real property.
No big surprise. After all, Mugler v. Kansas, 123 U.S. 623 (1887) still carries a lot of power, as the pandemic has taught us.
A couple of random thoughts on this case:
- Yes, the Florida regulation does not require the owner of a bump stock to actually turn it over to the government for the government's use. But what can an owner do with it? After all, the regulation prohibits an owner, upon pain of felony, from importing a stock into Florida, or transferring, distributing, selling, keeping for sale, offering for sale, possessing, or giving it to someone else. Bump stocks are pretty much radioactive now. Destroy it is about the only thing left, it seems.
- Is the real vs personal property a valid distinction? The concurring opinion seems to so conclude, relying on language from Lucas suggesting that real property isn't subject traditionally to the same degree of regulation as personal property. See Concurring Op. at 5 ("The highlighted passage makes evident that items of personal property may be rendered worthless by valid laws adopted pursuant to the legitimate exercise of governmental police powers, yet not amount to a compensable taking. In comparison, laws that appropriate the entire value of a parcel of real property amount to per se takings because of the historical and constitutional “culture” that protects that species of property.")
By the way, recall that a cert petition is pending, asking SCOTUS to review a similar issue, so maybe this issue isn't done yet.
Hunt v. Florida, No. 1D19-2143 (Fla. Dist. Ct. App. Jan. 28, 2021)