The Federal Government's "Police Power" and the Takings Clause: Part III (Updated)

The statute that authorizes the bump stock regulation lacks a jurisdictional hook

|The Volokh Conspiracy |

Part I in this series explained that Congress does not have a general police power. Part II added that Congress can seize property pursuant to its Commerce and Necessary and Proper Clause Powers. But the federal government cannot seize property if the requisite statutory authority exceeds Congress's enumerated powers. Part III will extend this analysis to the Trump Administration's ban on bump stocks.

In 2018, the Trump Administration announced that federal gun control laws would now be read to prohibit bump stocks. Previously, the Obama Administration determined that the National Firearms Act and the Gun Control Act did not prohibit bump stocks. The final rule was challenged in several courts. (I filed an amicus brief on behalf of the Cato Institute in Guedes v. Bureau of Alcohol, Tobacco).

The Bureau of Alcohol, Tobacco relies on 18 U.S.C. 922(o) for the requisite statutory authority. This statute prohibits the possession of a machine gun.  ATF determined that bumpstocks were "machine guns" within the meaning of 18 U.SC. 922(o).

The final rule explained:

As 18 U.S.C. 922(o), with limited exceptions, prohibits the possession of machineguns that were not lawfully possessed before the effective date of the statute, current possessors of bump-stock-type devices will be obligated to cease possessing these devices. . . .

The NFA does not "usurp[ ] police power reserved to the States." United States v. Miller, 307 U.S. 174, 176 (1939). Further, "[b]ecause § 922(o) was a proper exercise of Congress's enumerated authority under the Commerce Clause, and because it does not compel, let alone commandeer, the states to do anything, the statute does not violate the Tenth Amendment." United States v. Kenney, 91 F.3d 884, 891 (7th Cir. 1996).

All bump stocks must be destroyed or surrendered prior to the effective date of the regulation (March 26, 2019).

After implementation of this final rule, bump-stock-type devices that meet the definition of "machinegun" under the NFA and GCA cannot be lawfully possessed because the pertinent provision of the GCA, 18 U.S.C. 922(o), prohibits persons from possessing a machinegun unless it was lawfully possessed before the effective date of section 922(o). Bump-stock-type devices currently possessed by individuals will have to be destroyed or abandoned prior to the effective date of this regulation.

The Bureau also cites 18 U.S.C. 922(o) as a defense to any takings claims:

The Department disagrees that lawabiding citizens would instantly become felons under this rule. This final rule provides specific information about acceptable methods of disposal, as well as the timeframe under which disposal must be accomplished to avoid violating 18 U.S.C. 922(o). Current possessors of bump-stock-type devices who properly destroy or abandon their devices will avoid criminal liability. As described in Part IV.D.1.b, this is not a compensable "taking" of property under the Constitution. . .

The Court of Federal Claims accepted this argument in McCutchen v. United States, 145 Fed. Cl. 42, 50-53 (Ct. Fed. Cl. 2019).

In this case, Plaintiffs' bump-stock devices were not "taken for a public use," within the meaning of the Takings Clause. Instead, because the devices have been designated as machineguns under ATF's regulatory authority, they are subject to 18 U.S.C. § 922(o), which makes their possession a criminal offense. ATF, in the exercise of its police power, directed that owners of the devices must either destroy or abandon them at an ATF office, to avoid prosecution. Because the prohibition on possession involved an exercise of the government's police power, there was no taking within the meaning of the Fifth Amendment.

The terminology in this case is imprecise. The federal government lacks a general police power. ATF's authority to require destruction of bump stocks must rise and fall on 18 U.S.C. 922(o).

If 18 U.S.C. 922(o) is within Congress's enumerated powers, as applied to the bump stock ban, then compensation would not need to be provided for those who abandon their devices. If 18 U.S.C. 922(o) is beyond Congress's enumerated powers, as applied to the bump stock ban, then just compensation must be provided.

Part IV in this series will consider the constitutionality of 18 U.S.C. 922(o) as applied to bump stocks.

(Thanks to Caleb Kruckenberg of the New Civil Liberties Alliance for his help with this post.)

Update (4/8/20): I realize my initial point obscured an issue. Even if the federal government has the enumerated power to regulate property, it may still commit a taking that requires just compensation.

When a state government regulates property, we presume that the police power grants the state the authority to enact that regulation. Therefore, we can immediately turn to the Supreme Court's takings jurisprudence. Is there a per se taking, under the categorical tests from Loretto and Horne? Is the government prohibiting a nuisance under the tests from Hadacheck and Lucas? Is there a taking under the balancing tests from Penn Central, Lucas, Murr, etc?

But when the federal government regulates property, we cannot presume there is a general police power that grants Congress the authority to enact that regulation. There is a threshold inquiry before we turn to LorettoPenn Central, and Lucas. We ask if Congress has the authority to regulate that property in the first place. If the answer is no, then the regulation is unconstitutional. And, if the government has already destroyed the property pursuant to an unconstitutional regulation, then compensation must be provided. Prospectively, that regulation cannot be enforced.

But if the federal government has the enumerated power to enact a law, then the courts must consider Loretto, Penn Central, and Lucas. Compensation may still be required if the regulation, in the words of Penn Coal, "goes too far."

NEXT: Today in Supreme Court History: April 8, 1952

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  1. “If 18 U.S.C. 922(o) is beyond Congress’s enumerated powers, as applied to the bump stock ban,…”

    This is the key bit. You either have an as-applied challenge to the statute or a procedural or ultra vires challenge to the rulemaking. An as-applied challenge to the statute would result in a limiting construction, likely not watershed enough under Teague2, so the claim would be that under Teague1, possession was private individual conduct inappropriately proscribed, and citizens’ willing compliance constituted, ex post, a taking. That’s like saying that since a municipality didn’t have the authority to lower the speed limit, everyone inconvenienced by the lower limit has a right to subsequent reparations. They had a right to challenge the speed limit rulemaking; they don’t have a right to freeride on a subsequent remedy.

    Scenario2: a challenge to the rulemaking — even worse, since you’re talking about an administrative interpretation that could have been challenged, and Teague explicitly says that the new holding has to explicitly move the proscribed conduct out of the legislature’s prerogative. In other words, if the people’s representatives in Congress assembled decided to prohibit gum-chewing, and no one challenged that, since we’re all Lockeans now, but the courts subsequently determined that the legislature had overreached, those who had respected the law (cf. Dogberry in Much Ado) should be rewarded by retroactive remedy.

    Frankly, I find it hard to care about guns. Except for flintlocks. Those are fun. Cheers.

    Mr. D.

  2. I think the recent litigation concerning flood control and takings is relevant here: Simply destroying private property can be a taking if is done to achieve some public purpose, rather than inadvertently.

    1. Has no application to contraband, Brett.

      1. Has no application to contraband that was contraband at the time you came into possession of it.

        Absolutely has application to things that you came into ownership of legally, and only became “contraband” because the government subsequently changed their mind about the legality of them.

        There are two issues here. One is the dispossessing lawful owners of their property without compensation, the other is that the basis for doing so is fraudulent.

        1. If a drug designer stays a half-step ahead of the regulatory definitions and produces a stockpile of an ostensibly lawful product that becomes banned by statute while in inventory, is your position (1) that the inventory never becomes contraband, (2) that the inventory may be outlawed by the government but solely if the government compensates the owner for the taking, or (3) something else?

          Thank you.

          1. If a drug designer stays a half-step ahead of the regulatory definitions, (Spoiler: This is largely impossible due to catch-all language.) his inventory isn’t “ostensibly” lawful, it’s just lawful, period.

            My position is that property lawfully acquired can’t become contraband in the sense that you cease to be able to own it yourself, unless compensation is paid for the taking, but selling it can be prohibited as a regulation of commerce. (But what level of government can prohibit this commerce depends on whether or not it’s interstate.)

            1. You forgot about the part where the federal governmental agency responsible for the drugs specifically ruled this particular drug legal and acceptable to them, and further more declared that they had no jurisdiction over it.

        2. There is absolutely no principle of law that says if you buy something and it later becomes contraband, you get your money back. You may WANT that to be the law, but it isn’t.

  3. What good are rights abrogated at a sick whim? Viz dumb mass hysteria pandemic pandemonium.

    Damocles’ Sword of Truth must scythe long and wide and deep, with great prejudice.

  4. I’d like to add that the refusal to compensate the owners of the bump stocks is remarkably petty. Bump stocks have never been very common, and they aren’t particularly expensive. All the owners could have been compensated at full market value, and it would have been a rounding error in the BATF’s budget.

    I suspect that the bureau didn’t actually expect this blatantly wrong ‘interpretation’ of the law to survive review long enough to be put into effect, and so were not at all concerned with the details of implementation. Working out some way to compensate the owners would have been unnecessary work if they were expecting the new regulation to be struck down the moment it went before a court. (As it should have been! It flatly contradicts the actual text of the law it is supposedly implementing.)

    1. There’s no way people who were trying to circumvent a ban on machine guns deserve one penny of taxpayer money.

      1. First, bump stocks don’t meet the legal definition of “machine guns”, the BATF’s new interpretation is nothing but a lie, I can’t reasonably describe it any other way.

        Second, they weren’t just “trying”, they were succeeding. They bought them legally, at a time when the BATF was telling anybody who asked that they were not machine guns, and were perfectly legal.

        Third, you’re appealing to no higher principle than, “People who are doing things I don’t like should get screwed over by the government.”; If you own something legally, and the government doesn’t want you to own it anymore, the government has to pay for it.

      2. Let’s say you built a house in 1989, following the then current building code that required 2×4 walls with R-11 insulation. Later the government changes it’s interpretation of the building code and requires anyone with less than R-19 wall insulation to bulldoze their house without compensation, in order to save us all from global warming.

        Just sucks to be them?

        (and to be clear, I thought the ATF’s original decision that bump stocks were legal was misguided; they famously once decided a shoestring used to bumpfire was a machine gun and should have done the same for bump stocks. But having made the decision, I don’t think they should reverse w/o compensation)

        1. Yeah, the shoe string decision was the bogus one.

          The law says a machine gun fires more than once for a trigger pull.

          All these devices do is make it easier for you to pull the trigger repeatedly. But you still have to pull it yourself, and get only one shot per pull. Ergo, not a machine gun.

          Literally, you can accomplish the same effect without any special hardware, just by practice in holding the gun the ‘right’ way. So a gun is a machine gun or not depending on how you hold it? Or is it your hand that’s the machine gun?

        2. That’s not what happened here.

          It’s closer to there’s a law prohibiting marijuana greenhouses. But it has traditionally been interpreted as applying only to greenhouses with skylights. A new administration comes in and says it applies to indoor greenhouses as well. Now, you want your money back for having built an indoor greenhouse to grow your marijuana.

          Nope, sorry.

          Machine guns are illegal. Gun owners who thought they found a regulatory shortcut around that should be out their money, period.

          1. Like I said: Your position is nothing more than, “People who are doing things I don’t like should get screwed over by the government.”

            And, no, a gun with a bump stock is not, per the statutory definition, a machine gun. It just fails to meet the terms of the statute, period: You have to pull the trigger every time you want a shot.

            Bet you’d really freak if you knew Gatling guns were legal, too, and not legally machine guns either.

          2. “…who thought they found a regulatory shortcut…”

            Just so we’re on the same page here: this wasn’t a case where Acme Bump Stocks, Inc. started selling them saying ‘we think they are legal’. This was a case where Acme sent an actual example to the ATF, and the ATF in its infinite wisdom[1] said ‘all good with us, not a machine gun’.

            You seem to be saying that people can never rely on any agency ruling. That seems like a bad way to run a country. Seriously bad. Your local electrical inspector makes decisions all the time, but once he signs off on a permit, that installation is legal. You’re really fine if instead he knocks on your door tomorrow and says ‘I changed my mind, we’re red tagging your house, vacate immediately, sucks to be you’?

            [1]FWIW, the ATF made that ruling in 2010 …

            (It feels weird to defend bump stocks. I don’t think they are useful for self defense, I don’t think they have a militia purpose, so I don’t think they have any 2A protection, I think the original approval was in error … but once they were approved I think we owe the purchasers their money back if we change our mind)

            1. They’re not useful for self defense, they don’t have a militia purpose, they’re just silly toys, but the original approval wasn’t in error, because they didn’t violate any existing statute. And it wasn’t the job of the BATF (They’re not the “ATF”, you can’t drink them, you can’t smoke them, and you can’t fire them.) to invent new gun laws, just to enforce the ones Congress enacted.

              Still don’t violate any statute, the BATF’s ruling was clearly contrary to the actual text of the statute.

            2. Would you feel differently about the entitlement to compensation if this had been a statutory change instead?

              1. Not really. The issue seems the same, regardless of the mechanism.

                I think everyone agrees compensation is owed when society at large takes land to build a dam or whatever. Do the ethics really change just because the property in question isn’t real estate?

      3. BATFE had made a previous public finding that bump stocks were not machine guns.

  5. Are we really not going to mention that insane declaration that a “bump stock” is a “machine-gun?” Never mind that a bump stock does not have literally any of the defining characteristics of a firearm in the first place, let alone a machine-gun?

    It is not a receiver. It does not hold any bullets. It does not fire any bullets. It does not have a barrel. It does not have a trigger.

    Before there’s any reason to bother arguing about the Constitutionality, it’s more appropriate to argue that the ATF is arguing that words don’t mean anything anymore.

    1. By standard BATF reasoning, anything that can convert a gun into a machine gun is, legally, a machine gun itself. A full auto sear, by itself, for instance. Kinda bogus, but long standing bogus.

      The real problem here is that the legal definition of a machine gun is, ““any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.””

      Bump stocks don’t actually do this. They simply don’t. You need a separate actuation of the trigger for each individual shot. All they do is make it easier for you to repeatedly pull the trigger. Something you can accomplish just by holding the gun right!

      This is a flatly bogus ‘interpretation’ of the law, that directly contradicts it’s actual text.

      This is why the Obama administration, no friend at all to gun owners, didn’t try this bullshit. Even they thought there was no chance that the courts would uphold it.

      That’s why I say that the BATF thought this was a meaningless sop to gun controllers, that it would be promptly shot down by the courts. I’m guessing they were as shocked as anybody when it was upheld.

      1. I’ll note that I’ve used a Hellfire trigger. (Much superior to bump stocks!) And it really IS a question of being assisted in repeatedly pulling the trigger. You have to want to repeatedly pull it, and make some effort in that direction, or it just doesn’t happen. If you just passively hold the trigger down, you get one shot, and that’s it.

      2. By standard BATF reasoning, anything that can convert a gun into a machine gun is, legally, a machine gun itself. A full auto sear, by itself, for instance. Kinda bogus, but long standing bogus.

        Since that’s clearly how “machinegun” is defined by statute, I think any bogosityneeds to be laid at the feet of Congress, not the ATF.

        1. Well, no. The statutory definition is that the machine gun is the weapon itself. The BATF’s extension is that a machine gun is any gun, AND possession of the means to make that gun into a machine gun. “Constructive possession”, IOW.

          And that can get pretty dicey for gun owners who have machine shops and libraries. IIRC, the BATF has even asserted that ownership of machine tools and the plans for an auto-sear can be regarded as constructive possession.

          1. Incorrect.

            The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

            26 U.S.C. §  5845(b).

            1. Fair enough, I’d forgotten that part. They actually have a statutory basis for their position on auto-sears, as opposed to bump stocks.

    2. Before there’s any reason to bother arguing about the Constitutionality, it’s more appropriate to argue that the ATF is arguing that words don’t mean anything anymore.

      No, the ATF is relying on the meaning enacted by Congress: “machinegun” is defined for purposes of this statute to include not only an actual firearm, but also “the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” 26 U.S.C. §  5845(b), as incorporated by 18 U.SC. §  921(a)(23).

      (This doesn’t speak to Brett Bellmore’s point that bump stocks don’t, in fact, convert firearms into machineguns, of course.)

  6. IANAL. Can someone challenge the interpretation about bump stocks in court? Or is it a case of Chevron deference?

    1. The rule was challenged in court. The D.C. circuit did apply Chevron in rejecting the challenge.

      https://casetext.com/case/guedes-v-bureau-of-alcohol-1

      1. More a matter of “but, guns!” than Chevron, if you ask me. The rule was sufficiently contrary to the statute that Chevron wouldn’t have saved it if not for “but, guns!”.

  7. So really all your saying is you don’t think the statute supports the administration’s interpretation. It’s just a simple question of statutory construction, plus a question of how much to defer to administrative agencies. All this highfalutin’ deep constitutional theory about the nature and existence of a federal police power is really besides the point, isn’t it?

    My original point remains. The statute has been previously found constitutional. So if the expanded construction is a valid interpretation, there is no need for compensation; if it isn’t, the seizures themselves are unlawful.

    Finally, the words “police power” can be used to mean two distinct things, a legislative power to create law and an executive power to enforce. Just because the same words are used doesn’t make these two things the same.

    1. I too was confused about Blackman’s federalism versus Takings Clause argument. But now having read this post and especially The Turtle Dove’s comment (the first in the thread), I think Blackman is arguing that if the expanded construction is not valid, those who in the past complied with turning over their bump stocks are due retroactive compensation per the Takings Clause.

    2. “So if the expanded construction is a valid interpretation, there is no need for compensation; if it isn’t, the seizures themselves are unlawful.”

      No, prior to last March, a finding that the construction was invalid would have avoided need for compensation, by avoiding the taking itself. Once the law went into effect, and the owners had to dispose of their lawful property or become felons, the only choices were between a lawful and an unlawful taking.

      Both of which require compensation, but the latter might appropriately include damages, too.

  8. “If 18 U.S.C. 922(o) is beyond Congress’s enumerated powers, as applied to the bump stock ban, then just compensation must be provided.”

    I don’t understand this at all. If it was beyond Congress’s enumerated powers, then the act was ultra vires and the property must be returned. I don’t see how compensation factors in.

    1. Presumably because much of the property has likely been destroyed at this point.

  9. The real victims here are the manufacturers. Put out of business by a bogus interpretation of a law, forced to destroy their inventory without any compensation.

    And even if the Supreme court eventually gets around to correcting the BATF on this, I doubt they’ll be made whole.

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