Senator Feinstein to introduce a new AWB

[SADShooter]

Just got back from a football watching party with a bunch of lawyers, including several staffers for Congress-critters.  The sooting came up, and the talk of these staffers is that there has been email traffic about intoducing legislation to outlaw all autos, semi and full.  Plan to stand on the theory that 2A will be satisfied by allowing private ownership of other guns, like revolvers.  Push the emotional edge to gain bipartisan support.  No mention of retroactive application//confiscation, amd I sure wasn't bringing it up/planting seeds.

I've now seen similar soundbites on the news.  This is scary stuff, as I've now heard some gunnys say they could live with that

And then another whackjob kills some folks with Daddy's 870 birdgun, or Grandpappy's  30.30...and away we go.

[De Selby]

Birdman, there's a takings clause question for sure but several factors make it less than promising for gun owners.

Eminent domain applies to all property - even intellectual property.  But it generally isn't considered eminent domain to completely eliminate a kind of property for public interest reasons.  I haven't had a detailed look since law school, but IIRC a good rule of thumb is that if the government isn't using the property or giving it to someone else for value (or reducing the value of property through some related economic activity, eg, flying planes low over someone else's land), there probably won't be any right to compensation.

What the government can do is make possession illegal - after a certain date.  Ex post facto would only apply if the government made pre-ban possession illegal, in which case you would be liable for a crime that happened before the law was passed.

The only real legal barrier to a ban is the second amendment as interpreted by the Heller decision.  That is where new regulations will stand or fall.

Edit: iPhone fixup

[RocketMan]

You're assuming that the GOP has a spine.

And therein lies the problem.  The GOP frequently proves the malleability the Party's spine.

[birdman]

Birdman, there's a takings clause question for sure but several factors make it less than promising for gun owners.

Eminent domain applies to all property - even intellectual property.  But it generally isn't considered eminent domain to completely eliminate a kind of property for public interest reasons.  I haven't had a detailed look since law school, but IIRC a good rule of thumb is that if the government isn't using the property or giving it to someone else for value (or reducing the value of property through some related economic activity, eg, flying planes low over someone else's land), there probably won't be any right to compensation.

What the government can do is make possession illegal - after a certain date.  Ex post facto would only apply if the government made pre-ban possession illegal, in which case you would be liable for a crime that happened before the law was passed.

The only real legal barrier to a ban is the second amendment as interpreted by the Heller decision.  That is where new regulations will stand or fall.

Edit: iPhone fixup

Regarding future possession, can you name something that isn't destroyed upon use (eg drugs) (and thus the "use" becomes the regulated act) that the government has successfully made possession of illegal when the manufacture date was before the law was enacted?  

I can think of numerous things that have been banned, but I can't think of anything that has been banned where the possession of previously manufactured items is now illegal.  

[Hawkmoon]

What the government can do is make possession illegal - after a certain date.  Ex post facto would only apply if the government made pre-ban possession illegal, in which case you would be liable for a crime that happened before the law was passed.

How is this different from a "taking"?

I own a widget. It's mine. I bought, I paid for it, widgets are legal. My widget is my property.

If the .gov enacts a law that says after July 1, 2013, possession of widgets is unlawful and anyone found in possession of a widget shall be fined or imprisoned or both -- that boils down to my being deprived of the lawful possession and enjoyment of MY property, that I bought and paid for in a completely legal and above-board transaction.

Say I own 50 widgets, and the average value of my widgets is $750. If I have to dispose of or destroy them all as of June 30, 2013, I'm out of pocket $37,500. How is this NOT a violation of the 5th Amendment?

[birdman]

How is this different from a "taking"?

I own a widget. It's mine. I bought, I paid for it, widgets are legal. My widget is my property.

If the .gov enacts a law that says after July 1, 2013, possession of widgets is unlawful and anyone found in possession of a widget shall be fined or imprisoned or both -- that boils down to my being deprived of the lawful possession and enjoyment of MY property, that I bought and paid for in a completely legal and above-board transaction.

Say I own 50 widgets, and the average value of my widgets is $750. If I have to dispose of or destroy them all as of June 30, 2013, I'm out of pocket $37,500. How is this NOT a violation of the 5th Amendment?

It is, and has been challenged as such, specifically with regard to coastline and wetlands.  There the opposing argument is based on extension of public use to mean public benefit from NOT developing the land (BS I know), but it hasn't been extended to property--even intellectual property, in fact, the govt has been sued successfully for infringing on private IP as a 5th amendment takings.

Again, I ask, can anyone name something where future possession of prior created (with the "not destroyed in use" caveat) has been done?

[Perd Hapley]

You're assuming that the GOP has a spine

No, he's reminding us that we are the spine.

[sanglant]

i would like to take this opportunity to call for banning idiot politicians. yes really, deporting them to Iran would be a small start.

[De Selby]

Regarding future possession, can you name something that isn't destroyed upon use (eg drugs) (and thus the "use" becomes the regulated act) that the government has successfully made possession of illegal when the manufacture date was before the law was enacted?  

I can think of numerous things that have been banned, but I can't think of anything that has been banned where the possession of previously manufactured items is now illegal.  

The obvious one is slaves - but why did you think that destruction upon use would be relevant?   A drug ban isn't more or less a taking because the goods are consumed.

Hawk moon, public interest regulatory moves and the exercise of police powers by the state are and always have been treated differently than commercial activities.  The reason why the .gov is taking your widgets makes a big difference.

Birdman, the rules of eminent domain to takings apply to any property.  Whether its tangible, intangible, real or personal.  In some cases, restrictions on even on real property that reduce value are not compensible, depending on the regulatory power being exercised.

"Destruction on use" isn't a feature of takings law.

[SADShooter]

The act of enslavement is harm visited on another person, akready criminalized so I don't see how you can legitimately compare transacting in slaves with transacting in previously legal widgets as it relates to takings.

[birdman]

The reason I brought up the destroyed upon use was having a possession law on such things could be done with a time-horizon, and new manufacture banned.

As for slavery, they didn't make possession of slaves illegal, they made ownership of citizens illegal, and they made the property CITIZENS, a slight difference.

So again, any examples of banned property?

[kgbsquirrel]

The reason I brought up the destroyed upon use was having a possession law on such things could be done with a time-horizon, and new manufacture banned.

As for slavery, they didn't make possession of slaves illegal, they made ownership of citizens illegal, and they made the property CITIZENS, a slight difference.

So again, any examples of banned property?

Gold. Exotic Animals.

[De Selby]

The reason I brought up the destroyed upon use was having a possession law on such things could be done with a time-horizon, and new manufacture banned.

As for slavery, they didn't make possession of slaves illegal, they made ownership of citizens illegal, and they made the property CITIZENS, a slight difference.

So again, any examples of banned property?

Just a point to note there: slaves weren't citizens and many slave owners did believe they should be compensated.  Emancipation specifically didn't deal with the dredd Scott question.

I've given two examples federally - drugs and slaves.  Numerous states have banned possession of weapons like black jacks, brass knuckles, etc with no defense of "owned before the ban", NY being a prime example often cited in gun discussions.

Where does this notion that a time horizon for use has something to do with takings come from?  I've never heard of it and can't see how it would be relevant to the takings question, legally anyway.  It might matter for government policy, but it certainly doesn't change constitutional analysis.

[birdman]

Gold. Exotic Animals.

Gold was money, and fair market exchange was the logic used, currency for currency, $35/oz

Exotic animals that have been banned, but were in legal possession before the ban were not destroyed or confiscated.

And to address DS's question, my point remains, the reason I ask is to put in context that a confiscatory law would be treading on really new ground.

The reason I put a time horizon is to ATTEMPT to elucidate the logic pols might use when banning certain things in a confiscatory fashion.  If the item is perishable, or destroyed upon use, then you don't have to confiscate it, but rather make the use illegal, thus avoiding the takings argument.

Why is my question so difficult to understand?

[Waitone]

Obama said he wants to take "meaningful" measures.  Fellow travelers echo "meaningful" actions.  "Meaningful" is a different word introduced into the debate so it makes me wonder what will be different.  I speculate initial actions will be regulatory using any number of conveniently crafted laws.  The congressional debate will follow on with the major purposing being that of a red herring drawing attention away from the real effort. 

Just remembered, the other new term being floated is that of mental health.  I wonder if the regulatory gambit will come from the healthcare side of the federales.

[De Selby]

Birdman, I think your question has been answered here - drugs, slaves, and weapons have all been banned and not paid for.  Destruction of these items (de facts or physical) can and has occurred without compensation.

I see why you're raising the issue of shelf-life now, but that issue has no relationship to common law analysis of the question.  Generally, if the government seizes property it must pay compensation, but there are exceptions to the rule that government can and has invoked.

[kgbsquirrel]

Gold was money, and fair market exchange was the logic used, currency for currency, $35/oz

Gold bullion was/is a commodity. Minted coins made from gold were a type of commodity money, as opposed to representative and fiat money. The former was property, the latter legal tender. Both were seized.

And no, they were not paid fair market value. In 1933 the value of gold was $26.33/toz., however people were paid $20.67/toz. for their gold.

To put it in modern terms today gold closed at 1,697.00/toz., now imagine that tomorrow you were compelled under threat of criminal prosecution to drive down to your local municipal building and turn over your private holdings of non-coin gold, and they decided to only pay you $1,332.21/toz. for it?

Exotic animals that have been banned, but were in legal possession before the ban were not destroyed or confiscated.

Still hunting for the news articles, but I recall several localities banning species such as pitbulls and compelling the owners to remove them out of the locality.

And to address DS's question, my point remains, the reason I ask is to put in context that a confiscatory law would be treading on really new ground.

As distasteful as this is, I feel need to point out that at one time it was legal to own a human. They were the legal equivalent of property. Then a law was passed to make them not property.

Regardless of the situation, the former owner at time point A was the owner of property considered to have certain value, then at time point B it was declared that he no longer had ownership of that property and his personal wealth was reduced by that value (he no longer owned the slaves that he had invested a particular amount of wealth into and was not remunerated for that lost wealth).

That the property in question was a sentient creature and never should have been property to begin with does not alter the fact that the process  involved declaring that a particular type of property (slaves) was illegal after a particular date in time.

[seeker_two]

Let them ban whatever they want....they'll be plenty of "moonshiners" that can deal with that....

[kgbsquirrel]

Let them ban whatever they want....they'll be plenty of "moonshiners" that can deal with that....

A prison inmate made a 9mm submachine gun out of a chair leg and bed springs. That should tell you how well any sort of total ban would be.

[birdman]

Birdman, I think your question has been answered here - drugs, slaves, and weapons have all been banned and not paid for.  Destruction of these items (de facts or physical) can and has occurred without compensation.

I see why you're raising the issue of shelf-life now, but that issue has no relationship to common law analysis of the question.  Generally, if the government seizes property it must pay compensation, but there are exceptions to the rule that government can and has invoked.

Weapons?  Name it. 

Okay, so the only "confiscation" we have so far is slaves and gold.  And the logic for both was fundamentally different than this one.

My point remains, it is for the most part, and only by really expanding the argument, untreaded ground.

As for my shelf life argument, I wasn't trying to apply it to the common law sense of the current question.

[Fitz]

A prison inmate made a 9mm submachine gun out of a chair leg and bed springs. That should tell you how well any sort of total ban would be.

Source?

Not that I don't believe you. I just REALLY want to see it!

[kgbsquirrel]

Source?

Not that I don't believe you. I just REALLY want to see it!

Wait one. Lemme see if I can dig it up on the intarwebs. Last time I saw it was in an improvised weapons book.

[birdman]

A prison inmate made a 9mm submachine gun out of a chair leg and bed springs. That should tell you how well any sort of total ban would be.

Isn't that how the Sten is made?

[Regolith]

I kind of doubt that the AWB will pass. It has several different problems, aside from the ones that birdman is pointing out.

1) It has to get through Congress first. Most likely it will be DOA in the House. The NRA's strategy of courting pro-gunners on both sides of the aisle will likely pay off there.

2) Even if it does pass, it has to get through the Supreme Court. Heller established the "in common use" test, and you'd have to have a particularly obtuse reading of "in common use" for EBRs not to be covered. They're simply way too damn popular.

The biggest danger, I think, is going to be whatever Obama tries to pull off using EO's and rule changes. Those will not be as easily thwarted, and I suspect that the AWB proposal is simply being used to draw fire while Obama quietly implements the other stuff behind Congress' back.

[erictank]

Because the rule only applies to penalising people for past conduct.  It does not mean that anything you ever bought cannot be confiscated.

Which brings us back to ex-post-facto, if one is going to be rational AT ALL about it.