That rail crossing in Chicago
We've noted before that gun cases have life of their own, often divorced from strict legal logic. Throw in takings, and you've got a recipe for a difficult challenge.
But add to the mix a Supreme Court überlawyer, and maybe your chances go up. Who knows for sure. Only the nine at 1 First Street, NE do.
So it is with this cert petition, filed yesterday, raising both Second Amendment keep-and-bear-arms and Fifth Amendment takings questions. The issue is New Jersey's decision to make large capacity magazines illegal (well, technically to lower the already-limited capacity of rifle and pistol magazines from 15 to 10). The problem, the petition argues, is that the ban didn't just apply prospectively, but covered legally-possessed magazines also, and requires owners to give them to the government, transfer them to third parties who may legally possess them, or permanently modify them so they hold 10 rounds or less. This is the "rare law that manages to offend two guarantees of the Bill of Rights at once, violating both the Second Amendment and the Takings Clause." Pet. at 1.
This isn't the first petition raising the takings issues in this context. See here, for example (that one is being considered by the Court in a couple of days).
Here are the Questions Presented:
Under recent amendments to New Jersey law, an ordinary law-abiding citizen is prohibited from possessing a firearm magazine capable of holding more than 10 rounds of ammunition, even though such magazines are widely owned and come standard issue for handguns and long guns typically owned for self-defense. New Jersey’s new law does not stop at banning the purchase of such magazines prospectively; it applies retrospectively to treat any non-compliant magazine as contraband no matter how long, lawfully, or safely it has been possessed. The law is thus unconstitutional twice over. This Court in District of Columbia v. Heller held that the Second Amendment protects arms that are “typically possessed by law-abiding citizens for lawful purposes,” 554 U.S. 570, 625 (2008), which concededly describes the magazines here to a T. And dispossessing citizens of lawfully acquired property without just compensation effects an impermissible physical taking. A divided panel of the Third Circuit nevertheless upheld the law, in opinions that generated multiple dissents and escaped en banc review by a narrow 8-6 vote.The questions presented are:1. Whether a blanket, retrospective, and confiscatory law prohibiting ordinary law-abiding citizens from possessing magazines in common use violates the Second Amendment.2. Whether a law dispossessing citizens without compensation of property that was lawfully acquired and long possessed without incident violates the Takings Clause.
Skip forward to page 24 to dive into the takings stuff.
The panel dismissed petitioners’ takings claim in a mere two sentences, finding it sufficient that the law gives citizens a menu of “options” for how to dispossess themselves of their property with no compensation from the state. App.94-95. But the panel missed the forest for the trees: None of those “options” provides a viable way for ordinary, law-abiding citizens to keep their constitutionally protected property. There can be no question that two of the means of compliance—surrendering the magazine to law enforcement or transferring it to someone else, N.J. Stat. §2C:39-19(a), (c)—require physical dispossession.The owner must literally hand over his property. Kelo v. City of New London, 545 U.S. 469, 473-75 (2005) (sale to private entity). And the other two options—to permanently alter the magazine to accept fewer than 10 rounds or to render the magazine permanently “inoperable,” N.J. Stat. §2C:39-19(b)—fare no better, as this Court’s precedents have made abundantly clear. In Horne, it made no difference that the raisin growers could have avoided the taking by “plant[ing] different crops” or selling “their raisin-variety grapes as table grapes or for use in juice or wine.” 576 U.S. at 365. And in Loretto, it made no difference that the property owner could have avoided the taking by converting her building into something other than an apartment complex. 458 U.S. at 439 n.17. As this Court has repeatedly admonished, “property rights ‘cannot be so easily manipulated.’” Horne, 576 U.S. at 365 (quoting Loretto, 458 U.S. at 439 n.17).
Pet. at 15-26.
This argument rings our Yee v. City of Escondido bell. Yeah, the mobile home rent control case. When a property owner claims the law requires a physical taking, the courts are really going to question whether that's accurate. Does it really "require" the owner of property to suffer a physical invasion or acquisition? Or are there other avenues for keeping your own property?
And this also gets our attention, an argument that goes beyond the weird gravity of Second Amendment cases: that the state's invocation of the "police power" as a way to avoid the takings question is a "nonstarter," something we've been harping on for a while:
The panel also toyed in that same footnote with an even more dangerous theory: that New Jersey’s law is “not a taking at all” because it was passed pursuant to the state’s “police power.” App.94 n.32. That argument is a nonstarter. The force of the Takings Clause does not vary with the source of power the state invokes. While identifying an enumerated power that justifies government action is often a critical matter for the federal government, as it is a government of enumerated powers, the states have plenary authority restricted only by the constitutional protections incorporated against the states. The Takings Clause is one of those protections. Indeed, the Takings Clause assumes that the government has the power to take property pursuant to eminent domain, but insists that it can only do so if (unlike here) it ensures just compensation. Thus, labeling the law an exercise of the police power simply means New Jersey had the power to enact the law (which, in that sense, no one doubts), but says nothing about whether the law complies with the Takings Clause (or the Second Amendment).Indeed, this Court has squarely rejected any police-power exception to the Takings Clause for more than a century. In Chicago, Burlington & Quincy Railway Co. v. Illinois, the Court made crystal clear it is, the government … finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner.” 200 U.S. 561, 593 (1906) (emphasis added). And the Court reaffirmed that holding in Loretto, where it held that the state law “dispossess[ing]” an owner of property amounts to a physical “taking” even if the law was “within the State’s police power.” Loretto, 458 U.S. at 425, 435 n.12; see also Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 197 (1985) (distinguishing between physical taking and exercise of police power). This Court has also held that a law enacted pursuant to a state’s “police power” is not immune from scrutiny even under the regulatory takings doctrine. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1020-27 (1992). As the Court explained there, the “legislature’s recitation of a noxious-use justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated.” Id. at 1026. The same is true a fortiori for the categorical rule that the government must compensate for physical takings.
Pet. at 27-28.
Stay tuned, of course.
