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Proposed Laws as Constitutional takings?

Ozman

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My question, as basically stated in the subject line, is does the proposal amount to a Fifth Amendment Constitutional taking?

It's not at all uncommon that many gun owners have hundreds, if not thousands (especially under recent market prices) of dollars in magazines that will become illegal when and if this law passes.

Also, beyond inconvenience and practicality of use, some guns themselves will become immediately unusable. For instance, the S&W 4006 TSW semi-auto, of which there are many thousands out there. Nobody will be making 7 round mags for that gun. How many people will be left with collections of entirely unusable, valueless guns as a result of this law. Does that not amount to a taking?

Any input from learned counsel and others with thoughts on the matter would be appreciated.

As always, thanks.

Steve
 

terraformer

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The answer is yes but it's qualified yes. In reality, Even an honest judge could potentially rule against us initially. That is on the takings issue I mean. But that is only because this specific flavor of takings has not necessarily been covered by prior caselaw. Conceptually though, yes, this is a violation of the takings clause.
 

Len-2A Training

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Value of our guns/mags will definitely decrease if we have to dump them to be legal. Again it looks like a "taking" to me. However court action will likely take years and then they are gone anyway so there is no way to make us whole again even if we were to win the battle.
 

Kevin_NH

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Difficult to make a claim as "takings" so long as there is a market for them elsewhere in the country. Same for the claim that the value of your "pre-ban" magazines has been degraded by having to sell them at a reduced price because they're only pre-ban in Massachusetts -- the value was artificially inflated by the previous MA law, and MA doesn't have a duty to keep the value artificially high.

Passing a similar law nationwide would make it easier to have a claim under the 5th, as generally a US citizen can't sell guns or magazines internationally.
 

terraformer

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Difficult to make a claim as "takings" so long as there is a market for them elsewhere in the country. Same for the claim that the value of your "pre-ban" magazines has been degraded by having to sell them at a reduced price because they're only pre-ban in Massachusetts -- the value was artificially inflated by the previous MA law, and MA doesn't have a duty to keep the value artificially high.

Passing a similar law nationwide would make it easier to have a claim under the 5th, as generally a US citizen can't sell guns or magazines internationally.

This is just one of the problems but yes, there is a problem while MA & NY are the limited areas effected but property is not just monetary value. If you deprive someone of the right to exploit the use of property, that is a taking too. The year grace period creates challenges, etc. But ultimately all of the "problems" will simply serve as cover for a judge to rule the state's way. It's not ultimately going to pass muster. It can't.
 
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But that is only because this specific flavor of takings has not necessarily been covered by prior caselaw.
It is an interesting form of taking when the government tells someone they must sell something, but not offer to buy it. This has already happened in the US in 1942 when Japanese Americans were given a very short period of time to sell their homes, businesses, and belongings they could not carry prior to relocation.
 
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The answer is yes but it's qualified yes. In reality, Even an honest judge could potentially rule against us initially. That is on the takings issue I mean. But that is only because this specific flavor of takings has not necessarily been covered by prior caselaw. Conceptually though, yes, this is a violation of the takings clause.

Has anything similar been done before? I can't think of an example -- where the law is satisfied only if person A does not own an item, yet is fine with A selling to B as long as B lives somewhere else. And, where this is only not a taking because there exists a market of B people who are outside of the reach of the law. The closest comparison, in a way, that I can think of is requiring range time to get a gun license but denying a permit to anyone wanting to open a range (this or similar was an issue in Chicago, right?). The common element is a law that is only acceptable (under some standard) because there exists an area outside of the purview of that law doing exactly what that law serves to stop.
 

Ozman

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Thanks for the input guys.

Just a couple of random additional thoughts. Your thoughts on diminution of value are spot on. I was thinking/hoping that the resulting diminution in value would perhaps amount to at least a constructive taking. Same thing with the guns that will no longer be able to be used as a result of no magazine availability, i.e., a constructive taking.

I'm out of my depths which is why I'm asking here, and I suppose I know the answer, but couldn't a valid arguement for a preliminary injunction be made, especially against the government given the "compelling state interest" that I seem to remember they have to show. Can they really show a "compelling state interest" for suddenly going from 10 to 7 round mags. Isn't that what they would have to demonstrate to prevail against a PI. Again, guys, just tossing it out there.

MM2A Compliant: I'm with you on that. I'm shocked at the number of people on the board openly stating they intend to violate the law. WTF?

Steve
 
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Kevin_NH

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Good question; I can't recall any prior statewide bans on possession of a durable good anywhere in the USA that didn't include a grandfather clause and permit transfer. Even prohibition didn't outlaw possession of booze, just "manufacture, sale, or transportation".
 

terraformer

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Has anything similar been done before? I can't think of an example -- where the law is satisfied only if person A does not own an item, yet is fine with A selling to B as long as B lives somewhere else. And, where this is only not a taking because there exists a market of B people who are outside of the reach of the law. The closest comparison, in a way, that I can think of is requiring range time to get a gun license but denying a permit to anyone wanting to open a range (this or similar was an issue in Chicago, right?). The common element is a law that is only acceptable (under some standard) because there exists an area outside of the purview of that law doing exactly what that law serves to stop.

It's not just the jurisdiction issue you raise (ie; the chicago/ezel case of requiring something that can't be had inside the jurisdiction) that complicates this. They didn't give a grace period solely to fig leaf the confiscation and takings issue. It also potentially creates a ripeness issue in that the court won't hear the case until the taking actually happens (a year from enactment). Most takings cases, if not all of them, have been initiated by people with papers showing the government is moving in on a piece of real estate or other property so the ripeness is going to be an issue here.

In the end, there are bits and pieces of case law out there which address each point but not on point. ie; on a different topic and in a different context. All of this is to say it walks like a taking, it quacks like a taking and everyone knows it is a taking but it's going to require some good lawyering to get that point home in court. A task we are up to.
 
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It is an interesting form of taking when the government tells someone they must sell something, but not offer to buy it. This has already happened in the US in 1942 when Japanese Americans were given a very short period of time to sell their homes, businesses, and belongings they could not carry prior to relocation.

It's actually quite different from 1942. The law would essentially require gun owners to destroy something of value. You can't sell it, because there are no legal buyers. Thankfully, I don't think it will get through the House.
 
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It makes no differece if it's legal or not. The lib polititions in this state have been doing whatever they want for so long and being backed by the lib courts, that they just don't care anymore. The only recourse is the next election, vote for anyone that doesn't have incumbent next to his name.
 
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