Constitutionality of Feinstein's proposed assault weapons ban

[crb]

Putting aside the 2nd amendment issue, I do not wish to argue about gun control in this thread.

Feinstein has not released the text of her proposed ban yet, her summary says she would be the "transfer" of guns or high capacity magazines.

However, there is the 5th amendment. SCOTUS, and regulatory takings. Lessening the value of property is considering a taking by the government, and they cannot do it without due process.



the government may not take private property unless it is for a public use and just compensation is paid. Just compensation is considered to be the fair market value of the property at the time of the taking. A government may "take" property in two basic ways: (1) by physically appropriating the property, such as for a right-of-way; or (2) by regulating or limiting the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use.

Perhaps this is why the original assault weapons ban did not ban the sale/trading of existing guns, nor even the older automatic weapon ban. Grandfathering existing weapons isn't just done to appease gun owners, it may be constitutionally required.

So if this ban comes to pass, it could see challenges both under the 5th and 2nd amendments.

[Whirlin]

However, there is the 5th amendment. SCOTUS, and regulatory takings. Lessening the value of property is considering a taking by the government, and they cannot do it without due process.

Define "Due process" though... if the bill were to be passed by house, senate, and signed by Pres, I would argue that the ratification process would be adequate due process to overcome the requirements of the 5th amendment.

However, tangently... I hate when things say generic stuff like "Due Process"... all that means is that the process has yet to be defined at the time of writing, and will be defined at the point in which the overall process needs to be broken to accommodate some anomaly. It's really half-assing it.

[ClydeR]

Are you saying that to ban guns the government would have to buy existing guns from their owners?

[Methais]

Are you saying that to ban guns the government would have to buy existing guns from their owners?

Just think about how it would stimulate the economy.

[EasternBrand]

At the outset, it's important to understand, as has been posted, that the Takings Clause doesn't prohibit the government from regulating away the use of private property. However, there is a threshold question as to whether or not a regulation is a taking in the first place. If so, it requires "just compensation" and "due process." Contrary to what's been said, "due process" is a legal term of art and doesn't equate to "something we'll figure out later." A core example of due process is a bill constitutionally passed by the Congress and signed into law by the President. Of course, just because a law is lawfully enacted doesn't mean that it's not unconstitutional for some other reason, but a bill signed into law has been enacted with due process, so forget that challenge.

The threshold question for a Takings Clause challenge in a case like this--often referred to as an inverse condemnation, where the federal government enacts a law regulating or restricting private property and the owner sues--really is, "Is this a taking for which the government must provide just compensation?" Not every regulation restricting private property is a taking sufficient to trigger the Fifth Amendment. There's no solid answer to this, however. Supreme Court precedent instructs us to look at, among other things, the economic impact and frustration of distinct investment expectations. One thing that's reasonably clear is that depriving the property of all economically beneficial use is a taking. But what is all economically beneficial use? Without going through a full analysis, it seems obvious to me that the only economically beneficial use a firearm has--putting aside, say, the hunter who eats his venison or sells his pelts--is in trade. But maybe I'm missing something? A gun is not like a plot of land with many different economic uses (building, housing, renting, mining/forestry/fishing/whatever). Holding up a bank doesn't count. Defending yourself or your family is not, I would think, an economic use. So my initial reaction is that a takings challenge could be successful--not to stop the effect of the law, but to require just compensation. But as I was writing that, I realized that the government can ban the possession and sale of marijuana, and I don't think anyone believes you could have sued the government in the 1930s or whenever it was for just compensation for your stash. Same with child pornography. So there's got to be more to the question, but I'll leave that much as food for thought.

[Parkbandit]

In January, Senator Feinstein will introduce a bill to stop the sale, transfer, importation and manufacturing of military-style assault weapons and high-capacity ammunition feeding devices.
Summary of 2013 legislation

Following is a summary of the 2013 legislation:


Bans the sale, transfer, importation, or manufacturing of:

120 specifically-named firearms;
Certain other semiautomatic rifles, handguns, shotguns that can accept a detachable magazine and have one or more military characteristics; and
Semiautomatic rifles and handguns with a fixed magazine that can accept more than 10 rounds.


Strengthens the 1994 Assault Weapons Ban and various state bans by:

Moving from a 2-characteristic test to a 1-characteristic test;
Eliminating the easy-to-remove bayonet mounts and flash suppressors from the characteristics test; and
Banning firearms with “thumbhole stocks” and “bullet buttons” to address attempts to “work around” prior bans.


Bans large-capacity ammunition feeding devices capable of accepting more than 10 rounds.
Protects legitimate hunters and the rights of existing gun owners by:

Grandfathering weapons legally possessed on the date of enactment;
Exempting over 900 specifically-named weapons used for hunting or sporting purposes; and
Exempting antique, manually-operated, and permanently disabled weapons.


Requires that grandfathered weapons be registered under the National Firearms Act, to include:

Background check of owner and any transferee;
Type and serial number of the firearm;
Positive identification, including photograph and fingerprint;
Certification from local law enforcement of identity and that possession would not violate State or local law; and
Dedicated funding for ATF to implement registration.


A pdf of the bill summary is available here (http://www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=10993387-5d4d-4680-a872-ac8ca4359119).

http://www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id=10993387-5d4d-4680-a872-ac8ca4359119

My suggestion: If you want a gun that might be on this list, go get it before this gets voted on. Yay, more gun control that won't stop anything!