A regulatory “taking” is when government legislation destroys or reduces the value of one’s property. The Constitution does not prohibit the federal government from regulating away the value of property, although it does require “just compensation.” (The courts have not always required compensation in cases of regulatory takings.) Recently proposed federal gun legislation would impose a regulatory “taking” on select semi-automatic guns and gun magazines, not by confiscating those items directly from their owners, but by outlawing their transfer. If one cannot sell or will an item, its value is substantially reduced.
Obviously Dianne Feinstein’s proposed ban on so-called “assault weapons” constitutes a regulatory “taking” of the value of the affected guns, as it would ban the “transfer” of all those guns. The NRA obtained a draft copy of Feinstein’s legislation, and, by the NRA’s reading, “under Feinstein’s new bill, ‘assault weapons’ would remain with their current owners until their deaths, at which point they would be forfeited to the government.”
However, there seems to be nothing in Feinstein’s proposal that prohibits the transfer of existing magazines by their current owners. A writer for TruthAboutGuns.com believes Feinstein’s proposal would prohibit such transfers, but I see nothing in Feinstein’s summary or the NRA’s summary supporting that conclusion. (I have not yet seen the bill’s language.)
On the other hand, legislation proposed by Representatives Carolyn McCarthy and Diana Degette apparently would ban the transfer of existing so-called “large capacity” magazines, meaning those holding more than ten rounds of ammunition. The new bill is H. R. 138; “As of 01/08/2013 text for H.R.138—To prohibit the transfer or possession of large capacity ammunition feeding devices, and for other purposes—has not been received.”
A January 3 release from McCarthy and Degette states, “The High Capacity Ammunition Feeding Device Act, as the bill is formally known, bans the sale or transfer of ammunition magazines holding more than 10 rounds. Such a standard was federal law between 1994 and 2004, when the assault weapons ban was in effect.” The Denver Post claims, “DeGette introduced legislation that would ban high-capacity magazine clips in the week-old 113th Congress. The legislation mirrors failed legislation that she and Rep. Carolyn McCarthy of New York introduced last year. . . . This restriction was in place from 1994 to 2004, during the assault weapons ban, but has since been lifted.”
Although both Degette and and the Post claim the new proposal mirrors the 1994 ban, that does not seem to be the case. The 1994 ban did not ban the transfer (or importation) of existing magazines; the new proposal apparently does both.
First consider the language of the 1994 ban: “[I]t shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device,” except that provision “shall not apply to the possession or transfer of any large capacity ammunition feeding device otherwise lawfully possessed on or before the date of the enactment of this subsection.” This was known as a “grandfathering” clause.
Contrast that with the language of H. R. 308, which McCarthy introduced in 2011: “[I]t shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device,” except that provision “shall not apply to the possession of a large capacity ammunition feeding device otherwise lawfully possessed within the United States on or before the date of the enactment of this subsection.”
Notice the absence of the word “transfer” in the “grandfather” clause of H. R. 308. Notably, while the bill appears to ban the transfer of all affected magazines, it makes no provision for what’s supposed to happen to those magazines upon death—they apparently cannot be “transferred” to children or other heirs.
If the newly proposed legislation in fact prohibits the transfer of magazines holding more than ten rounds—the overwhelming majority of which are factory-standard magazines owned by tens of millions of Americans—that will constitute a significant regulatory “taking” of those items.
Such legislation would, over the years, also turn millions of peaceable Americans into criminals under federal law when—either by lack of familiarity with the provisions or by intentional civil disobedience—they illegally transfer their magazines to their children, spouses, or others.
How turning millions of peaceable Americans in federal criminals is supposed to stop violent crime, is beyond me. Perhaps Representative DeGette can explain that.
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