A Maryland gun rights group is taking another shot at gaining financial compensation from the state for individuals compelled to surrender their bump stocks when the General Assembly banned possession of the devices that can be placed on firearms to make them fire faster.
In papers filed with the Supreme Court last week, Maryland Shall Issue urged the justices to hear a claim by other gun rights advocates that a similar federal ban on rapid-fire trigger activators amounted to a governmental “taking” of personal property for which their formerly lawful owners are owed “just compensation” under the U.S. Constitution.
MSI’s filing came 15 months after the justices declined without comment to hear the group’s appeal of a 4th U.S. Circuit Court of Appeals ruling that Maryland owes no compensation because the state had not put the “taken” property – activators – toward a public use, such as constructing a school, hospital or road. With its ban, Maryland sought to destroy the activators – not put them to use – the 4th Circuit stated in its 2-1 decision in June 2020.
In the case now pending at the Supreme Court, gun rights advocates from other states are challenging a lower court ruling that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, similarly owes no compensation for its bump stock ban. The U.S. Court of Appeals for the Federal Circuit said ATF’s action was not a “taking” because the ban was in keeping with the government’s existing authority to prohibit machine guns.
In support of its fellow advocates, MSI told the Supreme Court that the 4th and Federal circuits were wrong to treat the compelled surrender of previously lawfully possessed property as something other than a taking for which compensation is owed.
“In short, appropriations of personal property are per se takings no less than appropriations of real property,” MSI President Mark W. Pennak, an attorney, wrote in the group’s brief. “That the property was legally acquired and possessed prior to the issuance of the ATF rule is dispositive.”
In its brief, MSI added that the justices could avoid the Takings Clause issue by hearing — and agreeing with — other pending Supreme Court challenges questioning ATF’s statutory or regulatory authority to issue the ban.
“I’m looking forward to this,” Pennak said Monday of the pending appeals.
These cases are “really interesting stuff for Supreme Court nerds,” he added.
The gun rights advocates pressing the Takings Clause appeal made a slippery slope argument in urging the justices to recognize as a compensable taking ATF’s ban on rapid fire activators that they had owned legally.
“The Federal Circuit’s holding raises fundamental questions about the nature of personal property in a nation in which nearly every object is subject to some general grant of legislative authority to an agency,” wrote Patrick Strawbridge, the advocates’ counsel of record at the high court. “If the Federal Circuit is right, then federal agencies can, with a stroke of a pen, outlaw not just the future sale but the mere private possession of cars that burn too much gas, or light bulbs deemed too inefficient, and so on – without paying a dime of compensation to their owners.”
Strawbridge is with Consovoy McCarthy PLLC in Boston.
U.S. Solicitor General Elizabeth B. Prelogar has until Oct. 7 to respond to the gun rights advocates’ request for Supreme Court review.
The case is docketed at the high court as Roy Lynn McCutchen et al. v. United States, No. 22-25.
Maryland’s Democratic-led legislature passed the bump stock ban just months after police found the rapid-fire accessory was used in the mass slaying of 58 people at an outdoor country music concert in Las Vegas in October 2017. Gov. Larry Hogan, a Republican, signed the ban, SB 707, into law in April 2018, prompting MSI’s constitutional challenge in Baltimore federal court.
U.S. District Judge James K. Bredar ruled in November 2018 that the ban fell within the state’s police powers and did not constitute a taking of property. The 4th Circuit affirmed, prompting MSI’s request for Supreme Court review.
In its successful opposition to MSI’s petition, the state said the 4th Circuit correctly held that the Constitution’s requirement that government compensate owners of property seized for public use does not apply when a state bans the possession of dangerous items to protect public safety.
“(F)ederal court decisions are not divided on the principal issue presented by this case: Whether compensation is due to owners of property that the state has deemed so injurious to public health or safety to merit its ban,” Assistant Maryland Attorney General Adam D. Snyder wrote in papers filed with the high court.
“The principle makes textual sense because the Fifth Amendment prohibits the government from taking private property ‘for public use,’” Snyder added. “Here, no ‘public use’ is even potentially implicated because no one uses the banned bump stocks; they are simply prohibited, the objective being to prevent their use.”
The legal principle also “makes practical sense because the potentially prohibitive costs of paying compensation claims should not be permitted to deter a state from taking steps to address new threats to public safety,” Snyder wrote.
MSI’s unsuccessful appeal was docketed at the high court as Maryland Shall Issue Inc. et al v. Lawrence J. Hogan Jr., Governor of Maryland, No. 20-855.