SCOTUS Denies Cert in Maryland Shall Issue v. Hogan

This case brought a takings challenge to Maryland's prohibition on bump stocks

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Today the Court denied cert in Maryland Shall Issue v. Hogan. Here, Maryland prohibited the possession of so-called bump stock devices. The Plaintiffs argued that this law violated the Takings Clause. The Fourth Circuit ruled against the Plaintiffs. The cert petition presented this question:

Whether the Fourth Circuit erred in ruling that this Court's holding in Horne that appropriations of personal property and real property must be treated "alike" under the Takings Clause applies only where the statute requires that the owner "turn over" the personal property to the government or a third party.

The Court denied cert, without even relisting it. There are several cases floating involving the federal prohibition on bump stocks. And these cases also present takings claims. I do not think there is much appetite for the takings argument. The federal bump stock cases may have more legs on principles of administrative law.

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  1. Of course. Standard constitutional principles routinely fall in the face of, “But, guns!”

    1. Brett, the power to declare something contraband is a longstanding power with a great history of its own. And historically, nobody thinks the Takings Clause requires just compensation for confiscation of contraband.

      The people who bought bump stocks were attempting to circumvent a lawful ban on automatic weapons. They should not have tried to do this. The federal government does not need to treat a bunch of law-circumventers as if they are “law abiding citizens”.

      And more generally, these people are actually bad for the gun rights movement you support. As are all people who deliberately violate or circumvent gun laws. If you want to convince the public- and judges- that law abiding citizens should have broad rights to own and carry firearms, you need to make it clear that you aren’t a bunch of people who ejaculate in their pants at the thought of owning a rapid fire weapon so quickly and with so much vigor that they MUST figure out a way to make their semi-automatics fire faster even though they know the law.

      1. If suggest that you define “these people” who own(ed) bump stock in terms that at least approximates respect of their inherent human dignity before you approach this topic again.

        1. I have nothing but contempt for people who so fetishize ownership of an automatic weapon that they feel the need to add a modification to their guns to circumvent the law.

          Guns are tools, and gun ownership is a solemn civic responsibility to defend the free state, as stated in the Second Amendment. The militia needs to be disciplined, trained, and regulated. If a person has a gun fetish, it needs to be drilled out of that person.

          1. “to circumvent the law”

            In fairness, the ATF had explicitly, in writing, said they were legal.

            Generally speaking, when the IRS interprets tax laws in certain ways, I don’t view people who rely on that interpretation as scofflaws.

            (And I wouldn’t have a bump stock if you paid me)

            1. “In fairness, the ATF had explicitly, in writing, said they were legal.”

              And properly so. The BATF ‘interpretation’ here is grossly bogus, and I suspect nobody involved actually expected a judge with two neurons to rub together to give it the time of day. It was just a PR throwaway that hit the lottery. Because, Guns.

              1. “And properly so”

                I disagree 🙂

                1. Have you read the statute? In order to be a machine gun, the gun has to fire more than one bullet per trigger actuation. That simply does NOT happen with a bump stock; All it does is make it more convenient for you to hold the gun loosely so that the recoil pulls the trigger off your finger, and then bounces it back again.

                  You can accomplish the same thing just holding the gun right, if you practice.

                  But the key point is that the trigger has to be actuated once for each shot, by your finger. Ergo, NOT a machine gun.

                  1. Yes, I have.

                    It walks like a duck.

                    1. I guess we are at the table pounding stage then?

                    2. It’s not a “walks like a duck” statute! It’s a specific test that bump stocks fail statute!

                    3. “I guess we are at the table pounding stage then?”

                      There’s a thing called guardhouse lawyering. For example, your Mom says ‘you keep your hands out of the cookie jar!’. You upend the cookie jar and eat the cookies, then object to the spanking with ‘But I never put my hands in the cookie jar!’.

                      We have agreed, as a society, that full auto guns ought to be tightly controlled. IMHO, balancing the purpose of the 2nd Am with concerns for misuse, that is the correct decision, as it is with, say, claymore mines and hand grenades. Of course, you can disagree, but that is a separate discussion.

                      But if we adopt, for the sake of argument, the proposition that full-auto is a no-no (w/o going through the NFA hoops), then to me building something that is functionally equivalent and then getting upset that it is viewed equivalently is like tipping over the cookie jar and expecting to get away with it.

                      For a similar example, google ‘Franklin Armory Reformation’. That company made a … something … with straight rifling (which makes no sense … rifling exists to spin stabilize a bullet, there is no functional reason for straight rifling). So it isn’t a shotgun, because the law says those have smooth bores. And it’s not a rifle, because the rifling is straight or something. This … thing… has no purpose other than to walk on the edge of the NFA. People are making similar arguments that AR-15s aren’t guns because the legal definition of receiver didn’t really envision split receivers.

                      I think the ATF muffed it when it originally said bump stocks weren’t covered by the NFA. Recall, if you will, the shoestring that is a registered machine gun (see the crimped on metal part … that’s for the required serial number). If the ATF had done so originally (and frankly, everyone was amazed at the time that they didn’t) this would never have been controversial. There is a long history here of the ATF nixing these attempts at guardhouse lawyering.

                      I’m sympathetic to the argument that congress should have changed the law, vice ATF rulemaking. I’m not particularly sympathetic to casting the ATF’s clumsy reversal as a first order civil liberties outrage. YMMV, of course.

                    4. Your problem here is that it isn’t the spirit of a statute that is the law, it’s the words of the statute.

                      And the federal statutory definition is, “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.

                      Bump stocks require a separate function of the trigger for each shot.

                      The Maryland definition is just a smidgen more vague, “Machine gun.- “Machine gun” means a loaded or unloaded weapon that is capable of automatically discharging more than one shot or bullet from a magazine by a single function of the firing device. ”

                      But if “firing device” means “trigger”, or indeed any part of the gun, it’s the same as the federal definition, because you need a separate actuation for each shot.

                      Literally the only thing bump stocks do is make it easier for you to repeatedly pull the trigger.

                    5. The reason your shoestring made the rifle a machine gun, was that the ring became the trigger, and you only had to pull the ring once to keep firing.

          2. So, I guess you’re incapable of recognizing that people who disagree with you may be of good will, as absaroka points out behaving legally, and also are not mentally ill with a “fetish”.

            This, however is par for the course in a gun debate.

            Just a point, though, if the 2nd Amendment were applied properly, we civilians would have greater access to full auto weapons, not shitty approximations thereof though bump stocks, or ones priced out of common ownership due to the NFA tax stamp.

            1. It wasn’t the NFA tax stamp that drove machine gun prices sky high, it was an amendment to the 1986 FOPA that banned manufacture by and sale to civilians of machine guns. So, the inventory of machine guns available for civilian ownership was fixed at that moment, never to increase. With increased demand, prices went up and up and up.

              1. Yea, you can’t get a tax stamp for a post ’86 gun. But if we need to be specific, thanks for that clarification, appreciate it.

              2. Well, technically, at the time the NFA was enacted, the tax was more than the retail price of a machine gun, so it did immediately drive the price sky high. Then inflation reduced its significance until people stopped caring.

                Then in 1986 the government refused to let you pay the tax. At that point, by the reasoning of the case that originally upheld the NFA, it stopped being constitutional, because the Court had ruled that it was only a tax as long as it yielded revenue.

                In fact, United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991) ruled that it was indeed now unconstitutional. And that is still good law in the 10th circuit. last I heard.

                Of course, the Hughes amendment is being interpreted as doing what the earlier Court had agreed Congress lacked any constitutional authority do do, now that the commerce clause has been transmogrified into a general police power of the sort Congress deliberately wasn’t given.

      2. “con·tra·band
        /ˈkäntrəˌband/
        Learn to pronounce
        See definitions in:
        all
        crime
        american civil war
        noun
        noun: contraband

        goods that have been imported or exported illegally.
        “the police looked for drugs, guns, and other contraband”
        trade in smuggled goods.
        “the government has declared a nationwide war on contraband”
        h
        Similar:
        smuggling

        illegal traffic
        black marketeering
        trafficking
        bootlegging

        the black market
        goods forbidden to be supplied by neutrals to those engaged in war.
        noun: contraband of war; plural noun: contrabands of war
        (during the US Civil War) a black slave who escaped or was transported across Union lines.

        adjective
        adjective: contraband

        imported or exported illegally, either in defiance of a total ban or without payment of duty.
        “contraband drug shipments””

        Contraband are things that were illegal when you obtained them. NOT things the government up and decided to make illegal after the fact.

        The fact is, no matter what bullshit interpretation of the law the courts decide to indulge “Because, Guns!”, bump stocks were perfectly legal, and still do not honestly fit the statutory definition of an automatic weapon, which requires the gun to fire more than one bullet per actuation of the trigger.

        1. “Contraband are things that were illegal when you obtained them. NOT things the government up and decided to make illegal after the fact.”

          So if I have some LSD or fentanyl from before they were banned, I’m good to go?

      3. I don’t find the takings argument very compelling, but bump stocks were designed to circumvent the law in about the same way as you’d “circumvent” a 65-mph speed limit by driving 64.

        1. I find it compelling: You own something legally, and out of nowhere, the government up and tells you to destroy it or become a felon. And not even by passing a new law, just by ‘interpreting’ an old law to mean something it manifestly doesn’t mean, and they’d previously admitted it didn’t mean.

          Damn straight they’ve taken it, and ought to pay. The courts were just happy to make the owners fall guys.

          1. Could you give me an example where this happened previously, either where the gov’t did shell out the $ or they didn’t?

            1. Can you cite a previous example where the government made legally purchased property a felony to possess, and didn’t grandfather in the existing owners?

              1. The cases I cited were upheld without a grandfather clause. The statutes appear to have made the continued possession a misdemeanor, but I’m not sure why that would be constitutionally significant.

            2. The compensation argument was rejected in Samuels v. McCurdy, 267 U.S. 188 (1925) and Mugler v. Kansas, 123 U.S. 623 (1887). I know of no cases endorsing it, but I’m sure Brett will be along with a cite any minute.

              1. I’m quite comfortable with thinking the courts are wrong about something, as you well know.

                1. Indeed, they often are.

          2. And not even by passing a new law, just by ‘interpreting’ an old law to mean something it manifestly doesn’t mean, and they’d previously admitted it didn’t mean.

            This case is a challenge to a statute passed by the Maryland legislature, not to the ATF regulation.

            I ask again, please stop trying to help my side.

            1. The Maryland law is materially indistinguishable from the federal law, aside from referring to a “firing device” rather than “trigger”.

      4. Shorter Dilan: “People who follow the law are circumventing it.”

      5. The people who bought bump stocks were attempting to circumvent a lawful ban on automatic weapons. They should not have tried to do this. The federal government does not need to treat a bunch of law-circumventers as if they are “law abiding citizens”.

        Actually, it does.

        Another word for “circumvent” here is “obey.”

    2. Amazing. Even with the SCOTIS 6-3, Brett is still blaming them for being dirty liberals.

      1. Disingenuous interpretation. What they are doing is waiting for the right case, or engaging in “switch in time to save 9” behavior. Also, there are very few cases where the Robert’s court injected themselves in a Warren Court manner. Pretty much just Heller/McDonald and that one where they got rid of a portion of the VRA. I would like to know if you can name more, I’m curious.

        If it was 6-3 liberals on the Court, you know this is where they would be heading, ending “constitutional crouch” liberalism. They played their hand in 2016 with that one, but surprise lost the election they thought was in the bag.

        Also, conservatives conserve, it’s in their name. So you can naturally expect less Warren Court type decisions from the right. It’s an internal debate on the right how much it’s worth doing so at this point.

      2. I’m not saying they’re dirty liberals, they’re just dirty.

        The 2nd amendment is the red haired stepchild of the Bill of Rights, barely so much as acknowledged by the judiciary. The judiciary’s attitude has barely budged since State OF N.J. V. Joseph Pelleteri, where the court (Holding owning an illegal gun to be a strict liability offense, with ignorance of the law no defense.) said, “When dealing with guns, the citizen acts at his peril.”

        Even the justices who were part of the Heller majority are not free of this attitude. It’s just not a big deal to them if 2nd amendment rights are violated, or other rights are violated in the process. Because, Guns!

        1. This is just your usual made up telepathy. Pretty sure we got a pretty critical mass of SCOTUS folks who are pro-gun. m_k’s theory is the much more likely one than yours.

          1. Robert’s is “pro-gun” only if we are using a binary sort of pro/anti typology. On a sliding scale, he’d be a 51 out of 100.

            1. Based on what, other than the “logic” that Roberts upheld the mandate as a tax in NFIB v. Sebelius and therefore is secretly a liberal?

              1. I wouldn’t to as far as to call him a liberal, but he’s really not pro-gun.

                Please, stay inside the baseball diamond. You’re out in left field and just looking to insult, and therefore, this reply looks odd.

        2. This isn’t a second amendment case.

          Stop helping.

          1. No, it’s not a second amendment case, but it IS a gun case. I’ve observed that the courts get fairly hostile to citizens’ rights as soon as guns are involved, as opposed to, say, stamp collections.

  2. This case was a terrible vehicle (I am from MD), on many levels. I do not think that the SC could get remotely close to the questions presented in this case. Prof Blackman should do more research on cases before he speculates about why cert gets denied.

  3. There’s a long history that the police power doesn’t violate the takings clause. If a ban is lawful, then the thing has no value as it cannot be sold or even given away to anyone, and so the just compensation is zero.

    Drug dealers don’t get compensation when their drugs!(and other stuff) are taken. Nor does anyone else involved in a forefeiture action. That’s what all the fuss about civil forefeiture is about.

    1. This case had other vehicle problems, but I think that you identified a critical one: Without knowing whether the ban itself is lawful (i.e. which weapons and accessories are within the scope of the 2nd amendment), it’s hard to reach the merits of whether the taking was proper.

      Also, I should point out, the MD law is not a confiscation per se. MD does not make you destroy it. One can still store a bump stock in VA and shoot it there, and some FFLs offer this service. If the ATF allowed registration of bump stocks as machine guns during a certain period, then MD would let you keep your bump stock as well.

      Honestly, Maryland Shall issue had to try, but there was never a hope in hell for this case to be a good vehicle for the Supreme court to take up.

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