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District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power

Added 03-31-20 07:21:02pm EST - “"The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation."” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “District Court Finds Bump Stock Ban May Constitute a Taking, Because the Federal Government Lacks a Police Power”. Below is an excerpt from the article.

In 2018, the Trump Administration announced that federal gun control laws would now be read to prohibit bump stocks. Previously, the Obama Administration determined that the National Firearms Act and the Gun Control Act did not prohibit bump stocks. The Trump Administration's policy was challenged in several courts.

I filed an amicus brief on behalf of the Cato Institute in Guedes v. Bureau of Alcohol, Tobacco, (D.C. Circ.). We contended that this reversal of positions from the prior administration was not entitled to deference. The Supreme Court ultimately denied cert in Guedes, over Justice Gorsuch's dissent. (Kristin Hickman and Jonathan Adler commented on the denial.)

As far as I am aware, all other courts have likewise turned away challenges to the bump stock ban. Until today at least.

Judge Starr of the Northern District of Texas found that the Trump Administration's policy may be unconstitutional. Here is the introduction from Lane v. United States:

Bump stocks allow semi-automatic rifles to fire at a rate close to machine guns. In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule determining that bump stocks qualify as prohibited machine guns under federal law and required their destruction or surrender. Brian Lane lawfully purchased three bump stocks before the rule took effect and raises a Fifth Amendment challenge that the federal government must compensate him for taking his property. The federal government responds that the rule falls under a valid use of the police power, which requires no compensation. But as explained below, the federal government forgot the Tenth Amendment and the structure of the Constitution itself. It is concerning that the federal government believes it swallowed the states whole. Assuming the federal government didn't abolish the states to take their police power, the Court DENIES the motion to dismiss WITHOUT PREJUDICE. The Court will allow the federal government to try again and explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation. The Court requests that the federal government also address any limits on that federal power and the Court's proper role in examining the validity of the underlying rule when determining if there was a compensable taking.

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