District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power

"The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation."


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 Trump Administration's policy was challenged in several courts.

I filed an amicus brief on behalf of the Cato Institute in Guedes v. Bureau of Alcohol, Tobacco, (D.C. Circ.). We contended that this reversal of positions from the prior administration was not entitled to deference. The Supreme Court ultimately denied cert in Guedes, over Justice Gorsuch's dissent. (Kristin Hickman and Jonathan Adler commented on the denial.)

As far as I am aware, all other courts have likewise turned away challenges to the bump stock ban. Until today at least.

Judge Starr of the Northern District of Texas found that the Trump Administration's policy may be unconstitutional. Here is the introduction from Lane v. United States:

Bump stocks allow semi-automatic rifles to fire at a rate close to machine guns. In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule determining that bump stocks qualify as prohibited machine guns under federal law and required their destruction or surrender. Brian Lane lawfully purchased three bump stocks before the rule took effect and raises a Fifth Amendment challenge that the federal government must compensate him for taking his property. The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself. It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power, the Court DENIES the motion to dismiss WITHOUT PREJUDICE. The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation. The Court requests that the federal government also address any limits on that federal power and the Court's proper role in examining the validity of the underlying rule when determining if there was a compensable taking.

Judge Starr rejects the notion that the federal government has a police power.

The federal government here raised the talisman of police power 31 times in its motion to dismiss and an additional 19 times in its reply. This seemed unusual to the Court because the Court had thought the police power is a power reserved for the states, not for the federal government. Fearful the Court was wrong, it turned to the first place one should always turn to with such questions: the Constitution. Article I, section 8 enumerates the powers the People gave to the federal government at our Nation's founding: the tax power, the borrowing power, the commerce power, the naturalization power, the bankruptcy power, the power to coin money, the postal power, the maritime power, and the war power.39 None of these powers is the police power.

Instead, the federal government has to rely on one of its enumerated powers. And it hasn't. Judge Starr gave the parties a chance to re-plead their case.

Rather than deny the federal government's motion to dismiss outright, the Court will allow it an opportunity to file a new motion to dismiss, based on the limited enumerated powers the federal government has (as confirmed by the Constitution, the Supreme Court, and even Wikipedia). If the federal government opts for the commerce power, it should discuss the limitations in Lopez and Morrison. Also, the federal government should be prepared to address whether the validity of the final rule is an issue under the proper judicial framework for assessing the taking.51

Judge Starr is quite right. The federal government lacks a police power. And I haven't seen this argument addressed in any other bumpstock cases.

Stay tuned.

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  1. 1. Wow, that’s the most snarky court order or judgment I have ever seen. I can’t remember which VC blogger had opinions about judicial decorum, but whoever it was presumably has opinions about this one as well.

    2. I thought an unlawful taking was, by definition, not a taking under the takings clause?

    1. Wouldn’t an unlawful taking inherently be unlawful on that basis?

      1. Indeed, and therefore not a taking, but a legal nullity.

      2. There are a lot more decisions of that quality on the way. This is your Trump-Leo judiciary in action.

  2. “…the rule falls under a valid use of the police power, which requires no compensation…”

    Why does the police power supersede the takings clause?
    Particularly when the property was legally purchased…

    Years back, the Maine Attorney General stated that if the state were to exercise its police power to close the state’s nuke power plant (a referendum question that was twice defeated), the state would have to compensate the owners.

    Was he wrong?

    1. No, he wasn’t. This opinion is a complete mess for several reasons. Maybe it was bad lawyering but the Judge’s snarkiness is particularly misplaced given that he is completely focused on questions that are not particularly relevant. And ignores a very basic question – in what world can a property owner sue the Federal Government directly under the Fifth Amendment for money damages for a Taking? He seems to have missed the recent Supreme Court cases on Bivens, but maybe those only apply to rights that are not the fetish of Richard Epstein and his fellow right-wing travelers.

      1. The Federal government can be sued for just compensation in district court under the Little Tucker Act. . .

      2. in what world can a property owner sue the Federal Government directly under the Fifth Amendment for money damages for a Taking

        A just world operating under a Constitution.

        I’m not sure if we have that though. We tend to ignore peoples rights and give deference to the government, because reasons.

    2. “Why does the police power supersede the takings clause?”

      I guess the reasoning is that, as you have no right to violate the law, confiscating contraband doesn’t constitute taking anything you had a right to in the first place.

      However reasonable this might (or might not!) be in the case of property you obtained after its illegality was established, I can’t see how it would be applicable to property that was legal when you took ownership of it, and only afterwards rendered illegal.

      1. But again, the premise of the argument that the Judge says the Federal Government was making – and based on the Judge’s opinion, I have a hard time believing what he says – the police power overrides the Takings Clause. That is just stupidly wrong. The point of the Takings Clause is to make sure that when the Government uses the police power (or any other power, such as the Federal Government’s enumerated powers) to take property, the owner gets just compensation. The fact that a State may take property pursuant to a completely valid exercise of the police power says NOTHING about whether it is a taking. Judge is just completely confused and then goes off in a snarky direction to discuss things that are totally irrelevant.

        1. There is precedent, I believe, that the takings clause doesn’t apply to “contraband”, on the theory that you have no legally recognizable property right in what it is illegal for you to own in the first place.

          But, as I say, even accepting that, it’s hard to see how this would validly apply to ‘contraband’ which was legally acquired, and became illegal only because the government changed the law.

          Of course, in this case the government would assert that the law wasn’t actually changed, just a ‘mistaken’ interpretation corrected.

          1. Agreed. The issue here is whether there was a taking at all, not whether the bumpstock ban is within the scope of the Federal Government’s enumerated powers, which is not relevant to that question. Of course, parties can challenge the ban as being beyond the Federal Government’s enumerated powers, but that is not what was raised here (and it seems other litigations did not really raise it either – as those were more about Chevron and APA issues).

            Nevertheless, this Judge – a 41 year old recent Trump appointee – seems to want to go off on those issues (being favorites of the Federalist Society) in an opinion so he is reaching out to try to decide the issue, in a particulary rude and snarky opinion.

            On the issue of the Government changing the law about the legality of an item, I think that may raise due process concerns more than Takings concerns as the Government has not “taken” the property at all. When the Feds illegalized marijuana in the 30s, they did not go and take everyone’s marijuana, they just made it contraband. Agree that reasonable people may see that issue differently but, again, that is NOT the issue the Judge is trying so hard to reach out and decide.

            1. When the government banned marijuana it likely could have been a taking of the marijuana that was legally possessed in a state before the ban went into place. Of course, nobody sued for a taking back then because they just smoked what they had and it was never an issue. They just couldn’t get any more. It took over 70 years for someone to bring a takings claim over the raisin marketing order. . .
              Many states had also already prohibited marijuana and the federal law was primarily assisting states in implementing their laws. In states that had not prohibited it, such action by the federal government would raise a serious question of a taking as the federal government can’t trump state property rights.

          2. Correct. The analysis here is very simple and the government has tried to cloud it. The question is whether the Final Rule is interpretive of the statute as it existed (i.e. there were never any property rights to be taken because this is the best reading of the statute) or did it create a new legal duty that didn’t previously exist. The D.C. Circuit, Sixth Circuit, and Tenth Circuit have either ruled or indicated at oral argument that the Final Rule did the latter—it created a new legal duty that in the context of this case destroyed property rights that existed in what had been legally possessed property.

            1. What is remarkably petty here, is that the amount of money we’re talking about isn’t all that great. Bump stocks aren’t terribly popular, and they’re not fantastically expensive.

              The cost of compensating the owners for the market price of the bumpstocks would be a rounding error in the federal budget.

              I suppose the problem here is that to compensate the owners would require a genuine statutory basis for the taking, which is lacking because the regulatory interpretation is utterly bogus. And there’s little chance of getting a law enacted giving the action a real statutory basis, because the heat of the moment is past.

              Even seeking that real statutory basis would amount to admitting the regulatory action was wrongful, too. So they can’t even try it.

          3. But, as I say, even accepting that, it’s hard to see how this would validly apply to ‘contraband’ which was legally acquired, and became illegal only because the government changed the law.

            How would it not? You bought something legally, now its illegal and must be disposed of. The government it taking it by forcing you to get rid of it.

            It makes perfect sense.

            1. I meant, how would the reasoning that it *wasn’t* a taking apply?

      2. EXACTLY — “Breach of Contract” doesn’t apply legally, but it definitely applies morally — if the government had any scintilla of integrity, it would consider itself obligated to recognize what citizens did in compliance with its past laws….

    3. re: “Why does the police power supersede the takings clause?”

      Because the police power is a residual power reserved to the States. For the most part, those residual powers are unlimited. However, residual powers that conflict with a federal or constitutional demand (such as the takings clause) get preempted in accordance with the supremacy clause.

  3. Not to worry: the Necessary and Proper Clause, as per McCulloch, covers anything. Without even redefining it as a tax.

  4. Why would it matter if it was a valid exercise of an enumerated power. Take an obvious exercise of Federal power, procuring land to build a Post Office. If the Federal Government brings in a bulldozer and destroys my home and builds a Post Office in its place, I would think that would qualify as a taking?

    Conversely, if the bumpstock ban is not a valid exercise of an enumerated power (I think it is clearly a valid exercise of regulating Insterstate Commerce, but I will assume I am wrong), then the ban is invalid regardless of whether it is a Taking or not.

  5. Also, where does the right to sue the Federal Government for money damages in a federal district court for violation of the Takings Clause exist? Has such a claim been recognized under Bivens? I understand you can bring such claims in the Court of Claims under the right circumstances, but did not know you can just bring a claim for damages in district courts directly under the Fifth Amendment?

    This opinion seems to be an utter mess.

    1. The text of the 14th Amendment?

      Abortion has a less valid supporting text….

    2. Also, where does the right to sue the Federal Government for money damages in a federal district court for violation of the Takings Clause exist?

      Article 3, 9th amendment, 14 amendment. There is no reason a person cannot sue the Federal Government, unless you want to argue they can’t because “reasons”.

    3. Where does the Constitution prohibit me from suing the Feds?
      The government has powers, _I_ have rights. Those rights not enumerated are still extant.

  6. “…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 Trump Administration’s policy was challenged in several courts….”

    Man, I detest that gun-hating, anti-2nd Amendment Trump administration. We need a gun-friendly president like Obama again. I assume it’s Obama decisions like this (and Obama’s opening of national parks to guns) that caused the NRA to support Obama in both his elections.

    1. Yes things are often more nuanced than blinkered partisans would have us believe

      1. I’d always assumed that Trump was open to gun control, nothing in his past suggested to me he had any principled objection to it. OTOH, I did believe he understood that he would only lose by pursuing gun control, because he’d lose supporters from the right, and not gain any on the left.

        The real problem here was the NRA giving him the go-ahead to throw bump stock owners under the bus. That was something of a shocker, though it shouldn’t have been; The NRA leadership aren’t particularly principled, either. They saw their chance to shed an element of the gun community they found embarrassing, and took it, principle be damned.

        1. Brett,
          I think your analysis is spot-on. I think Trump actually has almost no constitutional principles, and made a strategic decision re anti-choice judges, and gun issues. (I think Trump has–and has had for literally decades–a firm belief that it should be easier for people like him to to be able to sue, if mean things are said/written about him.) But in terms of other core beliefs for Trump? . . . none comes to mind.

          (It’s possible that he’s also been consistent on curtailing immigration for an extended period. I just don’t know about this. So, this might be a second core principle.)

          1. He’s a pragmatist, not an ideologue.

            The thing is, being a pragmatist with very little ideology results in him acting like a somewhat principled conservative or libertarian in many cases, because doing so is pragmatic, and he lacks an ideological motive for avoiding doing the conservative or libertarian thing.

            Many nominally conservative or libertarian politicians are ideologues who are lying about their ideology. They’ll actively avoid doing the sorts of things they run on doing, even when it hurts them politically, because their real ideology commits them to doing otherwise.

            So, for instance, Trump has been very good about judges from a conservative perspective, because it’s pragmatic for him to fulfill his campaign promise to nominate judges recommended by the Federalist society, and he lacks an ideological motive to break that campaign promise.

            Of course, nobody can completely avoid having an ideology, and to the extent Trump has one, he’s a nationalist. He’s said this many times now: The purpose of a country’s government is to advance the interests of THAT country, and no other, and the world as a whole would be best off if every government devotes itself to the interests of its own citizens.

  7. I think the ban is either a constitutional regulation, or unconstitutional and void. But it is not unconstitutional as a regulation yet constitutional as a taking. The federal government is not taking bump stocks for public use. It is simply prohibiting their use.

    1. Ding, ding, ding. This Judge is out to lunch.

    2. Thinking that it’s not a taking if the government doesn’t “use” the property, only orders it destroyed, is like thinking that the government doesn’t have to pay compensation if it takes property for private, not public, use.

      It misses the whole point of the taking clause, which is that the government doesn’t get to pick specific fall guys to bear the entire cost of actions supposedly taken for the general welfare. If it deprives you of your property for a constitutional purpose, it has to make you whole, you only bear your share the cost of that constitutional purpose, not the whole cost.

      This regulation deserves to fall simply on the basis that it’s an absurdly dishonest reading of the statute, which simply doesn’t mean what they’re claiming it does. But the courts are barely willing to uphold the 2nd amendment where doing so is politically necessary; If an outfit like the NRA says to go ahead and violate it, they’re never going to uphold it anyway.

      Bump stock owners were thrown under the bus by the NRA, just like machine gun owners were back in the 60’s. I was disgusted by this, but not terribly surprised: The NRA will always compromise if they think they can get away with it, they’re only as principled as they have to be to prevent a membership revolt.

      1. Remember what came out about the NRA just after this…

      2. It is well settled law that if government can prohibit an item as a danger to the public, it doesn’t have to provide compensation for it. Public nuisances condemned as such have never given compensation. Same with forfeitures. Drug dealers don’t get compensation for confiscated drugs. Nobody got compensation for alcohol during Prohibition. Burglars don’t get compensatiok for burglars’ tools.


        If government can prohibit it, it doesn’t have to compensate for it. It’s well-settles law.

        1. That can’t be right or Andrus v. Allard and Jacob Ruppert v. Caffey would make no sense. In both of those cases the Federal Government classified the property as prohibited contraband going forward, which meant it was illegal to manufacture or obtain after the government action. In Andres (eagle feathers) the court said the government couldn’t prohibit eagle feathers that were already lawfully acquired without paying compensation. They could, however, prohibit the sale without paying compensation. In Jacob Ruppert, the court stressed that the plaintiffs were not disturbed in the possession of their lawfully acquired alcohol, only the sale or manufacture of alcohol. In both of those cases had the government outright prohibited eagle feathers or alcohol there would have been a taking of those who had already lawfully possessed it.

          1. The public nuisance question is different as only the states can declare something a nuisance. And these things can’t be a nuisance because generally nuisances only concern uses and not possession and under Lucas the Supreme Court said it is not a nuisance if other people are still allowed to carry on a similar activity. Machine guns are still legal provided they were manufactured before 1986 and there are over 500,000 lawfully possessed throughout the United States. For the mere possession of a bump-stock to be a nuisance (which the federal government can’t declare because it doesn’t have the police power) all machine guns would have to be prohibited or such an item isn’t truly a nuisance.

            1. I’ll point out that heroin and cocaine have legal uses, both can lawfully be taken and possessed with a medical prescription. Yet both are confiscated without compensation if possessed illegally.

              The state of the law may not be as simple as I put it. But it is clearly not as simple as you put it either.

          2. Rupert doesn’t support your position. In Rupert the Supreme Court expressly said that “we are not required to determine here the police power of the states…” Because the statute in question didn’t confiscate the alcohol, only prohibited its sale, the Supreme Court said it wouldn’t decide the question.

        2. It is far from “well settled.” Under your rational the government can take any property it wants without compensation since anything that is “used” in violation of a law can be forfeited. But prohibiting something that was lawfully possessed and forfeiting something because it was “used” in violation of a law is very different. Andrus overrules your argument that “[i]f the government can prohibit it, it doesn’t have to compensate for it. That is certainly not the law.

          Now it is a different argument to say the government is prohibiting it for health and safety reasons or because it has determined it to be dangerous to the public. This is what I think the Judge in this case is getting at–the Federal Government cannot prohibit something on harm prevention rational–only the individual state’s can do this. The Federal Government can prohibit an item, but it would have to be under the same commerce rational it uses to do anything–like prohibiting the sale of eagle feathers in Andrus.

          1. I’m waiting for the DEA to declare someone’s house to be a Narcotic, because the head of the agency says so. Narcotics are contraband, therefore they can seize the house (sorry, “narcotic”) without compensation.

            Makes as much sense as a claim that an inert piece of plastic is a machine gun.

    3. Simply prohibiting their POSSESSION, not use — but how is that different from zoning prohibiting the use of property?

      1. Only if the zoning (etc) had changed after the use had been outlawed. The point is that when the bumpstocks had been sold, they were legal. But then the government made them illegal and thus worthless.

      2. Land use is different. The difference is that land itself isn’t inherently bad. There is a right to make some use of land, so if government takes away that right, it must compensate.

        Contraband is different. It is considered inherently bad (because the government says so, if the law is valid) and there is no inherent right to possess or use it as there is with land.

        1. By that ridiculous standard, you have no private property rights at all. The government could simply declare that your McMansion house is illegal because it uses too much electricity and contributes to global warming, and that you have to raze it without compensation. Do you think that’s reasonable?

    4. Yeah, the Takings Clause reasoning is muddling a relatively straight-forward analysis without adding anything.

    5. But it’s not prohibiting mere use – it is prohibiting possession.

  8. When Dean Barron opened our Constitutional Law class the first thing he did was quote his professor, who apparently said that the one thing you never want to do in Con Law is to read the Constitution. By that standard, this Judge has failed miserably.

    (Barron did say that it was not quite completely accurate).

    1. Why should that not be a complete embarrassment to constitutional lawyers, if true?

  9. Wow, the Federal Government has no police powers? Who is going to tell the FBI?

    1. They have no “police power”, outside federal property like D.C., or property purchased from the states with the approval of the legislature, where the federal government governs as though it were a state.

      The “police power” is, “the inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, health, safety, morals, and welfare except where legally prohibited”

      The federal government lacks this, being a government of enumerated, not general, power. It only has authority over people and property within its jurisdiction on certain enumerated topics.

  10. The Takings Clause argument makes no sense to me. Either Congress has the power to enforce or it doesn’t have the power to enforce. Public Use and Just Compensation don’t change that analysis. It honestly feels like the reading of the Fifth Amendment used in Dred Scott.

    Assuming this is just an Enumerated Powers argument, it seems the place to start based on precedent would be Gonalez v. Raich and how this is similar or different from that. If Congress can ban the sale of a good and the transportation of that good across state lines, can they ban possession in order to facilitate their goal? Are bump stocks factually distinct from marijuana under those circumstances? If not, the next question is a Second Amendment question because it’s entirely possible they’re entitled to greater protection from government interference. But I don’t see the Takings Clause argument at all.

  11. All of this would be irrelevant if the courts actually upheld the 2nd Amendment. Even if you accept that the National Firearms Act is constitutional, which I don’t, the 1986 closure of the registry is certainly not.

    1. All they had to do was say, “We’ve changed our minds, they’re machine guns, register them by X date.”

      1. Right, but the problem with that is that many LEOs won’t sign off on it, there is a $200 transfer tax, and all sorts of other nonsense like needing ATF permission to bring it to another state.

        If not for the NFA rules, bump stocks would never have even been created.

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