If the Government Prohibits Bump Stocks, Do They Need to Compensate Owners?

Trevor Burrus and Mallory Reader

In 2018, Maryland Governor Lawrence Hogan signed into law Senate Bill 707, which prohibits a person from possessing any device that increases the rate at which a gun’s trigger is activated or the rate of fire increases. That includes bump stocks and other modifications. The new law bans the possession, sale, transfer, and purchase of such devices, and a violation could result in a hefty fine and up to three years in jail. Maryland Shall Issue, Inc.—a nonprofit, nonpartisan organization dedicated to the preservation of gun owners’ rights—filed suit in federal court. MSI didn’t argue that the state lacked power to pass such law, but rather that just compensation is owed to the owners for the taking of their previously legal property. The Fifth Amendment says that private property cannot be taken except for a public use and with just compensation. If bump stock owners are essentially giving up their property for the “public good,” then shouldn’t they be owed compensation?

The district court dismissed MSI’s Takings Clause claim because the law does not include a governmental confiscation of the guns nor a mandate that owners cede possession to the State. The Fourth Circuit Court of Appeals agreed. Now, MSI seeks review by the Supreme Court in order to affirm that the Takings Clause requires just compensation when the most fundamental property right, possession, is usurped by the government. Cato has filed a brief in support.

This case is about whether the Takings Clause of the Fifth Amendment protects lawfully acquired and lawfully owned personal property that the state legislature subsequently decided to ban totally. In 2015, in Horne v. Department of Agriculture, the Court held that “direct appropriations of real and personal property” are treated “alike.” Cato argues that this remains true even if the regulation in question doesn’t require the owner to “turn over” the property to the government or a third party. Dispossession of property is the fundamental feature of Fifth Amendment takings, and the law here effectuates an ouster that actually and physically defeats the owner’s property rights.

Cato urges the Court to grant the petition and use this case to clarify that personal and real property must be treated alike under the Takings Clause regardless of whether the given statute requires a “turn over” of the property to the government. For when all fundamental aspects of property ownership are gutted by the government, just compensation is owed.