Here's the latest in a case we've been following from when the takings case was rejected by the Court of Federal Claims, and the dismissal affirmed by the Federal Circuit.
Yes, this is the "bump stock" takings case, and the Federal Circuit decision has now triggered a cert petition.
You remember that one. Petitioners owned "bump stocks" that apparently were legal at the time they acquired them. But later, the feds declared them illegal to own or possess, and the bump stock owners either turned theirs over to the government or destroyed them. Next up, a takings case: if getting bump stocks off the market is a good thing, the Armstrong principle compels compensation (the cost of public benefits should be distributed among the benefited public).
The CFC dismissed. We criticized the CFC's rationale that the reason the bump stock ban was not a taking was because it was a valid "police power" safety measure (putting aside for the moment that the feds don't have what you'd call a "police power" of course): the CFC "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." As we've noted before, this analysis is very unsatisfying. A takings claim like this doesn't challenge the validity of the ban, but instead says "if you are going to ban these things, the public needs to provide compensation."
The Federal Circuit took a different approach (and maybe went from bad to worse). It held that the bump stocks were not property because bump stocks were already regulated by the feds, who simply altered the ATF's interpretation of "machineguns" to include bump stocks when they were previously not covered (or at least it was not clear).
So even though the prior regs did not include bump stocks as "machineguns," bump stocks were subject to the regulations generally when the owners obtained them. Thus, the Federal Circuit concluded, the regulations limited the owner's rights.
Here's how the petition summarizes the issue:
This case raises fundamental questions about the interaction of the administrative state and the Fifth Amendment’s Takings Clause. Petitioners are owners and sellers of bump stocks. Petitioners acquired their bump stocks when their purchase, possession, and sale was unquestionably legal. After the Bureau of Alcohol, Tobacco and Firearms (ATF) promulgated a rule banning the possession of bump stocks—while affirming that prior to the effective date of the rule, the purchase, possession, and sale of them was legal—Petitioners complied with the rule and destroyed or surrendered their bump stocks. They then sought just compensation for the taking of their private property. The Federal Circuit rejected their Fifth Amendment claims, with a majority of the panel holding that there is an inherent restriction on title to any piece of personal property in America that is potentially subject to a federal agency’s general delegated legislative rulemaking authority.The Federal Circuit’s holding raises fundamental questions about the nature of personal property in a nation in which nearly every object is subject to some general grant of legislative authority to an agency. By redefining the nature of title to personal property in a country dominated by grants of general regulatory authority to executive branch agencies, the Federal Circuit has removed a bedrock restraint on government power and eliminated a means of redress for citizens harmed by exercises of such power. If the Federal Circuit is right, then federal agencies can, with a stroke of a pen, outlaw not just the future sale but the mere private possession of cars that burn too much gas, or light bulbs deemed too inefficient, and so on—without paying a dime of compensation to their owners. The Federal Circuit’s holding thus presents questions of substantial importance that the courts below, as well as commentators in the property field, have recognized as doctrinally incoherent. And the decision conflicts with this court’s prior holdings applying the Takings Clause to personal property in Horne v. Department of Agriculture, 576 U.S. 350 (2015), and emphasizing the constitutional significance of bans on the mere possession of personal property in Andrus v. Allard, 444 U.S. 51 (1979).
Under the Federal Circuit’s decision, citizens and merchants alike are left with no recourse for the forced seizure and destruction of millions of dollars’ worth of lawfully-acquired property. This Court’s review is warranted.
Pet. 3-4.
Here's the Question Presented:
For purposes of the Fifth Amendment’s Taking Clause, does a delegation of general legislative rule-making authority to an agency constitute an inherent restraint on title to any personal property that could be subsequently subjected to a prospective legislative rule, rendering the physical taking of the property non-redressable?
Follow along on the Court's docket here.
Petition for a Writ of Certiorari, McCutchen v. United States, No. ____ (July 5, 2022)
