MY FIREARMS ARE MY PROPERTY! NOT THE STATE’S!
When Americans challenge State actions that unlawfully target the fundamental right to armed self-defense, they universally point to the Second Amendment of the Bill of Rights where the fundamental, eternal, and unalienable right is codified.
The right of the people to keep and bear arms shall not be infringed” is concise, clear, coherent, and categorical.
But there is another right, equally important. Yet, it is one that gets scant attention.
It is a fundamental, eternal, unalienable, and unassailable right NO less sacred and profound than the right of the people to keep and bear arms.
It is a Right contiguous to and one that complements the Right contained in the Second Amendment. In fact, without it, the Right to armed self-defense is incomplete, attenuated, and devoid of effect.
It is the right of Americans to the exclusive ownership, possession and enjoyment of and sovereign dominion over their property.
Americans will find the codification of this Natural Law Right in the last portion of the Fifth Amendment of the Bill of Rights of the U.S. Constitution.
The Fifth Amendment says,
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The portion of the Fifth Amendment we direct our attention to here is referred to in law as the “Takings Clause.”
Several State Governments, and the Federal Government too, have, through the passing years and decades, denied individuals the right to own and possess firearms and component parts of firearms, such as, but not limited to ammunition magazines, suppressors, and, yes, “bump stocks.”
This Government action violates the “Takings Clause” and “Due Process Clause” of the Fifth Amendment, and it is in violation also of the “Equal Protection Clause” of the Fifth Amendment (which is tacitly invoked in the Due Process Clause of that Amendment). And it is in violation of the “Equal Protection Clause” of the Fourteenth Amendment.
But of all the Natural Law Rights of Man—those enumerated in the First Eight Amendments and in the Tenth Amendment of the Bill of Rights and those unenumerated Rights established in the Ninth—a few are front and center because they are central to maintenance of one’s physical safety and individual autonomy.
They are:
The Natural Law Right of Self-Preservation (of Mind, Body, Spirit, and Soul) through any means necessary to secure that Right (of which the keeping and bearing of arms was, for centuries, and remains today, the best and most effective means available to secure self-preservation), and
One’s Independence of Thought (manifested in the Natural Law Right of Free Speech), and
One’s exclusive Right of Ownership and Possession of, and the Enjoyment of, and Dominion over his Property.
The Right of Free Speech and the Right of the People to Keep and Bear Arms are well known. The Right to own and possess property is less so.
But is the import of the “Takings Clause” of the Fifth Amendment truly pertinent to and crucial to the exercise of the right to armed self-defense? It is.
Consider, what would it mean for the Common Man to have an individual right to keep and bear arms if he can be readily deprived of that “property interest” in those arms through State action.
Does that not serve to nullify the notion of an absolute, exclusive ownership of (sole title to) and possession of and enjoyment of the arms he keeps and bears?
Plainly, the right of the people to keep and bear arms and to have an exclusive ownership and possessory interest in those firearms, ammunition, components of firearms, and all the other paraphernalia and accessories associated thereto, would severely, negatively impact the right to armed self-defense.
That brings us to the meaning of the “Takings Clause.”
What is it, how does it operate, and why do Americans hear so little about it?
To get a handle on this, it helps to look at the salient parts of it, as written in the Fifth Amendment:
“Private Property”
“Taken” (“To Take From”)
“(For) Public Use”
“(But Only If there is) Just Compensation (For The Taking)
Some of the terminology seems clear. Some of it doesn’t.
The conjunction of two or more of the expressions is just as confusing for the average person, and no less so for lawyers and jurists.
The Federal Government, and many State Governments— those in “Blue” States, of course, but some “Red States” too—demonstrate marked suspicion of the Common Man, and convey a dismissive attitude toward, or otherwise exhibit an outright abhorrence of, the notion of ‘Individual Rights’ and the notion of “Natural Law Rights.”
This explains why Governments routinely blatantly ignore our Nation’s Bill of Rights and run roughshod over them and the Common Man.
Black’s Law Dictionary (8th Edition) defines each of these expressions.
The expression ‘Private Property’ means, property “protected from public appropriation.”
This is interesting when one comes to see just how blatantly, flagrantly, and cavalierly the State and Federal Governments routinely take private property away from America’s citizens—sometimes appropriated for the public use and sometimes not.
In law there are many kinds of Private Property. When talking of Private Property, unlike discussions about Public Property, we are concerned with property belonging to individuals, and what that means.
There are two broad groups of ‘Private Property’: ‘Real Property’ and ‘Personal Property.’
‘Real Property’ means ‘land and anything grown on it, attached to, or erected on it, excluding anything that can be severed without injury to the land.’
‘Personal Property’ means a movable [tangible, physical object] or intangible thing [such as a trademark, tradename, copyright, and patent] that is subject to ownership and not classified as real property.
‘Take’ or ‘Taken’ (i.e., the ‘Taking’ of, appropriating Property’) means ‘to obtain possession or control [over] whether legally or illegally;’ ‘seize with authority, to confiscate, or apprehend;’ ‘to acquire for public use by eminent domain (of a governmental entity.’
‘Public Use’ means ‘application or employment of something, especially a long-continued possession . . . as distinguished from possession or employment that is temporary or occasional.’
‘Just Compensation’ means ‘. . . a payment by the government for property it has taken under eminent domain—usually the property’s fair market value, so that the owner is theoretically no worse off after the taking.’
Since the “Takings Clause” is most often used in connection with the concept of ‘eminent domain,’ we need to define that expression as well even though it isn’t mentioned in the Fifth Amendment.
‘Eminent Domain’ means ‘the inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.’
The question for us, as supporters of the right of the people to keep and bear arms, is two-fold:
First, since the Founders recognized the Natural Law Right of one to own property, did the notion of Government Taking of Property apply to every kind of property conceivable that a person may own in his individual capacity? Specifically, if a person has a Natural Law Right to own and possess firearms—a right that shall not be infringed—under what set of circumstances is a State taking of that Property (firearms, or ammunition, or component parts of firearms, or any related paraphernalia in connection with firearms) lawful, if ever?
Second, assuming arguendo, the State can lawfully “take” one’s firearms and component parts, and ammunition, etc., must it provide just compensation (or, for that matter, any compensation) to the injured American citizen, just as the Government must do so when exercising the “power” of Government under the principle of eminent domain (even if it does not have the “right” of “eminent domain) (or does “might (power) equal right”))?
Courts have dealt with these matters, but rarely in a comprehensive or sound, analytical, legal and logical way. And unfortunately, often in a slipshod, inconsistent, and even underhanded manner.
Courts set their imprimatur on Executive Branch of Government action that is dubious or outright illegal. That imprimatur operates as a makeweight to give the appearance of Governmental conduct that is lawful when it isn’t.
Governments have agendas. Those agendas are grounded in belief systems and ideologies antithetical to the U.S. Constitution and to Natural Law.
Because the “Taking” of private property is an arcane and nebulous issue, unscrupulous Governments, both State and Federal, operated by ruthless, immoral or amoral men, deliberately obfuscate, skirt over, or openly defy the import and purport of the Constitution and the fundamental, unalienable Rights and Liberties of the people.
The U.S. Supreme Court needs to address and clarify the obscure points of the “Takings Clause” given its dire impact over the sanctity and inviolability of the individual, and the inexorable weakening of the Sovereignty of the American people over Government.
This manifests when Government executive officers and Courts routinely misuse the “Takings Clause” and usurp the authority of the American people over Government by using powers beyond the scope established in the Constitution.
A reckoning is past due.
We may begin with these truisms:
“The right of a person to own property, like the right to armed self-defense, predates man’s crafting of government; it does not rely on the Constitution for its existence.
The Bill of Rights codifies rights pre-existent and therefore internal and intrinsic to Man’s being and essence and are therefore removed from State control and interference.
The right to armed self-defense is inextricably bound to the unalienable, unassailable right to self-defense, that is to say, self-preservation. Firearms are the best means available today as in the distant past to best secure one’s survival when threatened by beast, by man-beasts, and by the man-beast of Government. Armed self-defense, then, is not distinct from the general right to self-defense. It is subsumed in it.
Similarly, the Right of a person to own, and possess private property, and to be free from Government intrusion into one’s exclusive ownership of firearms, ammunition, and accessories, is and must be absolute as must his dominion over that property. Therefore, Government encroachment on one’s absolute title over and enjoyment of his property is and must be unalienable and unassailable.
As one Law Professor writes, pointing to the preexistence of the Natural Law Right to own and possess property:
The Takings Clause, presumes the preexistence of something it refers to as ‘property.’ The Constitution does not purport to create property. . . . The Constitution uses the word ‘property.’ The Constitution certainly did not invent the word ‘property.’ The word ‘property’ predates the Constitution. The meaning of the word ‘property’ predates the Constitution. Without the Constitution, property, particularly private property, exists and would exist. No grant or privilege or law of the United States creates ‘property.’ ‘Property’ does not owe its existence to the government any more than human beings (people) owe their physical existence or their rights [like the right to armed self-defense] to the government. This Pre-Existence Principle provides part of the foundation to the Takings Clause.
The principle of pre-existence of ‘property’ leads to the second Takings Clause principle, one regarding government power. From the power to wage war to the power to regulate commerce, these powers, which often require government use of property, cannot be exercised through taking property unless the government pays compensation. To suggest a specific example, the Constitution expressly authorizes the creation of post roads and post offices. In order to create post offices and post roads, the United States government needs land, needs to use land. Inasmuch as it did not have land for post roads or post offices at the founding, it would be required to acquire that land. Notwithstanding the very specific power to acquire land, the Constitution declared that such acquisition power should be subject to, perhaps subservient to, private property, prohibiting taking without payment of just compensation. This discussion leads to another foundational principle: private property expressly limits government power.”
3 Ala. C.R. & C.L. L. Rev. 25, 66-67 (2013), by Stephen Durden.
While the taking of Private “Real” Property (as opposed to Private “Personal” Property)—when necessitated for public use—has a long-standing jurisprudential history, the taking is lawful only so long as the Government provides “Just Compensation” to the owner harmed by the taking and there is a legitimate Public Use for it.
This invariably or almost always involves the taking of “Real Property.” And the questions that arise are whether there is a public use for the property that overrides the owner’s legal title to and possessory interest in that property and whether the owner receives just compensation (generally understood as “fair market value”) for it.
The application of “Takings” of personal property when the Government has no public use for it and provides no compensation to the person is another matter entirely.
The “Taking” of that “Personal Property” is a stretch that doesn’t pass Constitutional muster, especially when the property at issue is inextricably tied to another unalienable, unassailable right, namely and specifically, the right of the people to keep and bear arms.
Yet, Courts in “Blue” State jurisdictions routinely take that property in the absence of providing “Just Compensation” for it and in the absence of any Public Use for it. But there is an issue that takes precedence over this one: Is the taking of a person’s firearms or components of those firearms ever Constitutionally permissible even if, theoretically, the State did provide “Just Compensation” for the property, and a legitimate public use did exist to meet the Fifth Amendment requirements?
The salient problem thus remains because such “Taking” will always collide with the right omnipresent in the Second Amendment.
When faced with an actual challenge to a Government action grounded on a Fifth Amendment “Taking” of firearms or firearm accessories, sans “Just Compensation to the owner, of the property, and when there is presumptively a lack of public use for the property, Courts brazenly rule the action legal and Constitutional anyway.
They do this even though on its face such action violates the Fifth Amendment “Takings Clause,” and, by logical implication, violates the Second Amendment as well.
Let’s consider a couple cases.
First, we consider the case, Association of New Jersey Rifle and Pistol Clubs vs. Attorney General of New Jersey, 910 F.3d 106 (3rd Cir. 2018).
This case involved a challenge to New Jersey’s LCM Ban. The Court justifies (really rationalizes) the ammunition magazine ban on “Mass Shootings.”
“New Jersey has made it illegal to possess a magazine capable of holding more than ten rounds of ammunition.”
“Mass Shootings “ from 2006 to 2015 served as the pretext for this law in NJ and in nine other States. And by bringing up the pretext for the Act as the first matter discussed in the Court opinion, a person can already see where the Court’s rulings are headed.
Civilians are not permitted to continue to own and possess magazines defined as ‘LCM’ (Large Capacity Magazines).
And take note of the fact, as the Court points out: both retired New Jersey Police officers and active duty officers are exempted from the ban. Fancy that!
How does the average Common Man who is not an active duty or retired police officer comply with the Act?
The Court says this:
The Act provides several ways for those who are not exempt from the law to comply. Specifically, the legislation gives LCM owners until December 10, 2018 to (1) modify their LCMs ‘to accept ten rounds or less’; (2) render firearms with LCMs or the LCM itself inoperable; (3) register firearms with LCMs that cannot be ‘modified to accommodate ten or less rounds.’ (4) transfer the firearm or LCM to an individual or entity entitled to own or possess it; or (5) surrender the firearm or LCM to law enforcement.
On the day the Governor signed the Act into law, Plaintiffs, NJ Rifle and Pistol Clubs and two individuals filed suit under Section 1983 of the Civil Rights Act, alleging violations of the Second Amendment, the Takings Clause of the Fifth Amendment, and violation of the Equal Protection clause of the Fourteenth Amendment.
Two of the three judges found for the NJ-AG, with the third judge dissenting.
On the Fifth Amendment challenge, the Court Majority ruled that the Government’s Fifth Amendment Taking of the LCMs is neither a physical taking by the Government nor a constructive, onerous “regulatory” Taking and thereupon concluded the New Jersey Government did not violate the Fifth Amendment. Huh?
The Government is infringing on a person’s ownership and possessory interest in a major component of his firearm.
The owner must either modify the magazine at his expense or destroy it. If he chooses to modify the “LCM,” this reduces the effectiveness of it.
Moreover, this act will likely void the manufacturer’s warranty since the magazine is an integral component of the weapon made to function in accordance with the manufacturer’s design and engineering of it.
If the property owner sells the ammunition magazine, that sale is made under duress. He is therefore unlikely to receive fair market value for it.
If he surrenders the magazine to the police, under compunction of State law, he receives no compensation for it.
If he cannot modify it, and cannot readily obtain a fair value (Just Compensation) for it, and wishes to retain possession of it, but without rendering it inoperable, he has to make the case that he cannot modify it without effectively destroying it.
In that event, he must register the “LCM” separately from the weapon even though it is an integral part of it. That places both him and the banned component under a perpetual microscope.
Registration effectively infringes the New Jersey owner’s absolute control over the magazine, as the State demands that his right to exclusive ownership is conditioned on the owner’s compliance with mandatory and draconian law enforcement procedures. Such registration procedures had not hitherto existed. The Government acquires constructive title over it. And, of course, the Government could eventually modify the law, requiring “the owner” to surrender or destroy the magazine anyway, during his lifetime. And, what happens after the individual dies? The Government encroaches on the owner’s right to bequeath the “LCM” to an heir, thereby further weakening one’s exclusive right over the property.
In the event of the original owner’s death, the owner’s heir cannot reregister the LCM in the heir’s name. Under State Statute, he must render it inoperable, or transfer it to a person or entity who is entitled to own or possess it, or surrender it to law enforcement.
Note the absence of any discussion of “Public Use” here as the Government tacitly says the LCM has no Public Use.
And, by dictating how “the owner” must comply with the law, the Government is denying the fact of a “Private Use” for the LCM, as well.
This New Jersey law violates one’s Natural Law Property Right in the ammunition magazine. The State Law therefore also operates as a violation of the Natural Law Right to Armed Self-Defense.
In another case, this one out of Rhode Island, Ocean State Tactical, LLC vs. Rhode Island, 646 F. Supp 3d. 368 (D.R.I. 2022), the Court ruled a ban on LCMs without compensation (whether fair or not) does not violate the Takings Clause requirement for Just Compensation requirement because of other considerations that presumptively and effectively nullify the Fifth Amendment requirement.
The Court took it as axiomatic that, where a State acts under the auspices of its “Police Power,” such action overrides Fifth Amendment concerns. How exactly? The Court doesn’t say.
But, as ostensible support for the decision, the Rhode Island Court judge cites several sister court jurisdictions that have upheld bans on all manner of firearms accessories, including bump stocks. However, those findings are not legal precedent in Rhode Island.
In any event, unconstitutional actions of a multiplicity of States do not ipso facto as if by magic, evolve into a constitutional action, overriding the Bill of Rights.
The Court finds the LCM Ban to be a valid exercise of the police power. Statutes similar to Rhode Island's, which outlaw possession of LCMs with no provision for compensation, have been upheld against Takings Cause challenges, as have a number of laws prohibiting particularly deadly firearm accessories. See Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, 910 F.3d 106, 124-25 (3d Cir. 2018), vac. on other gnds sub nom, Ass’n of N.J. Rifle & Pistol Clubs, Inc., v. Bruck, 142 S. Ct. 2894, 213 L. Ed. 2d 1108 (June 30, 2022) (LCMs); Duncan v. Bonta, 19 F.4th at 1112 (California statute similar to Rhode Island's); Wiese v. Becerra, 306 F. Supp. 3d at 1198 (California prohibition of LCMs); Cf. Akins, 82 Fed. Cl. at 622-23 (no taking by the ATF's classification of a certain weapon as a "machine gun," thus prohibiting its sale to civilians); Fesjian, 399 at 866 (D.C. 1979) (Firearm Control Act of 1975 prohibiting registration of machine guns not a 5th Amendment taking); Maryland Shall Issue v. Hogan, 353 F. Supp. 3d 400, 417 (D. Md. 2018) (ban of bump stocks and other rapid-fire trigger activators not a taking); McCutchen v. United States, 14 F.4th 1355, 1368 (Fed. Cir. 2021) (inclusion of bump stocks in category of prohibited machine guns not a taking, even though ATF changed its position); Mitchell Arms, Inc. v. United States, 26 Cl. Ct. 1, 5 (1992), aff'd, 7 F.3d 212 (Fed. Cir. 1993), cert. den., 511 U.S. 1106, 114 S. Ct. 2100, 128 L. Ed. 2d 662 (1994) (declaration by ATF that semiautomatic assault-type rifles were not suitable for ‘sporting’ purposes, which made them not importable, not a taking); Roberts v. Bondi, No. 8:18-cv-1062-T-33TGW, 2018 U.S. Dist. LEXIS 141261, 2018 WL 3997979, at *3 (M.D. Fla. 2018) (prohibition of bump stocks not a taking); Rupp v. Becerra, No. 8:17-cv-00746-MLS-JDE, 2018 WL 2138452, at *8 (C.D. Cal. May 9, 2018), rem. for cons. of Bruenth Cir. June 28, 2022) (prohibition of ‘bullet buttons,’ which allowed a quick detaching and replacement of magazine, used in San Bernardino 2015 mass shooting to shoot thirty-six people in less than four minutes, not a taking).”
The cases cited turn the sanctity of the Takings Clause on its head.
Plainly, State Governments that take a person’s private property without any compensation, let alone “fair compensation” make a mockery of the very notion of private personal property rights.
Yet, it begs the very question at issue to say no violation of the “Takings Clause” ensues because Public Policy, “Public Safety,” and the Police Powers of the State render one’s private property considerations moot, even irrelevant.
When the property under attack is necessary to effectuate the most important right of any person, self-preservation, the insouciance exhibited by these State Governments is unsufferable.
These States make patently clear they don’t give a damn about the value of human life.
The fact they don’t even provide for the public safety that they incessantly go on about makes their attack on one’s basic right to take responsibility for his own Personal Safety that much more egregious.
The American who wishes to exercise his right to armed self-defense is asking nothing of the State but to be left alone.
By preventing a person from being left alone, a State is saying one’s life is not his own. A person slowly devolves into a thing, an object. He becomes as much the property of the State as those things, his firearms and accessories, that once were his own.
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