Gun owners sue Florida over 'bump stock' ban

[Baitball Blogger]

It's all about protecting their legal precedent. We have to start finding legal wedges to form towholds.



TALLAHASSEE — Gun owners have filed a second lawsuit against the state over gun-related provisions in a new school-safety law, this time alleging that a ban on “bump stocks” is an unconstitutional taking of property.

The case, filed last week in Leon County Circuit Court, asks a judge to order “full compensation” for what the plaintiffs’ attorneys estimate are “tens of thousands, or more” Floridians who own bump stocks or similar devices.

The ban on bump stocks, which make semi-automatic weapons fire faster, was included in a law passed this month in response to the Feb. 14 mass shooting at Marjory Stoneman Douglas High School in Parkland that left 14 people dead and 17 injured.

The law also raised the minimum age from 18 to 21 and imposed a three-day waiting period for purchasing rifles.

http://www.orlandosentinel.com/news/politics/political-pulse/os-bump-stocks-lawsuit-20180320-story.html

[Hoyt]

1. Anyone with a bump stock is a threat to society and should prohibited from owning any guns.

Last edited Tue Mar 20, 2018, 05:30 PM - Edit history (1)

Why would anyone except white wing racist/terrorists be interested in a bumpstock?

[AncientGeezer]

3. Anyone with a bean can is a threat....no?

[boston bean]

39. Can the beans inside the can morph into lead bullets?

[SoCalMusicLover]

6. White Wing Racists Have Right To Own Bump Stocks Too

The Constitution does not prohibit Racists from owning firearms, therefore they are allowed.

The NRA won't EVER give up the right to own WHATEVER gun or accessory they want.

[jmowreader]

7. Rat-a-tat-tat is fun. That's the supposed reason.

The rock-and-roll setting on the M16A1 rifle is SO much fun, when they invented the M16A2 they changed it to three-round burst only.

Unfortunately for the gun nuts, full auto is also good for mowing people down wholesale - as that nut in Vegas so ably showed.

The bump stock owners have a point: the Takings Clause of the Constitution says the government can't just run around confiscating things; they have to pay for them.

[Hoyt]

9. "Takings Clause" does not apply because the lethal accessory is not being taken

for public use.

The fools bought it. Like any bad investment, though chit.

[NickB79]

17. Public use, or public purpose since 1954

Are you arguing that removing bump stocks from circulation is not a public purpose?

[Demsrule86]

34. No they don't.

[Angry Dragon]

2. Waiting period should be at least one week

[FiveGoodMen]

40. "But I'm mad NOW!"

-- Homer Simpson

[Initech]

4. They should just legalize murder and get it over with already.

It's the waiting I can't stand!

[SoCalMusicLover]

5. You're Exactly Right

[crazycatlady]

38. Only murder with an AR-15

[NickB79]

8. If the current law has no provision for compensation, they will likely win

If the law bans a product that was previously ruled a legal item by both the state and the federal government, and is subsequently banned without a payout, the most likely result is that the courts will rule that compensation must be paid.

However, note that their basis for the suit is for full compensation, not specifically to have bump stocks re-legalized. If they win their case and the court rules the existing law null and void, the legislature can simply reauthorize the exact same bill, only adding a compensation clause to it.

Checking online, I see a bump stock runs between $100-$250 each. 10,000 of them at full price is $2.5 million. That's a decent sum of money, but for the state of Florida that's pocket change compared to the cost of another mass shooting.

[Hoyt]

10. Compensation applies when property is taken for public use. The public ain't

going to use this piece of lethal crud.

[NickB79]

11. The USSC ruled on this issue in 2015, and ruled personal property is covered

http://www.abajournal.com/news/article/us_taking_of_personal_property_requires_compensation_scotus_rules_in_major/

The U.S. Supreme Court has ruled that the Fifth Amendment’s takings clause requires the government to pay compensation for takings of personal property.

The court ruled in the case of raisin producers contesting a government set-aside program. SCOTUSblog calls the decision (PDF) “a major blow to government’s program of trying to boost prices by keeping crops off the market.”

Chief Justice John G. Roberts Jr. wrote the majority opinion, which was joined in full by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Three other justices agreed that the set-aside program was a taking, but disagreed on valuation.

The government’s duty to pay just compensation applies to personal property as well as real property, Roberts said. “The government has a categorical duty to pay just compensa­tion when it takes your car, just as when it takes your home,” Roberts wrote.

[Hoyt]

12. For public use. Read the 5th Amendment and case, don't leave out

"public use."

[fescuerescue]

14. It's certainly a public purpose

The safety of the public.

It would be hard to argue that their isn't a public purpose in banning bump stocks.

[Hoyt]

15. In my view and I am sure the defense attorneys, it's like prohibiting loud exhausts or other public

nuisance. No compensation is necessary.

At worse, since the possession or sale of the damn things are banned, they are essentially worthless.

The dang gun-humpers invested in a lethal product and their investment went bad. The heck with them, they get nothing but thoughts and prayers and a big "Tough Chit."

[NickB79]

19. They are legal in 49 states, so they inherently have value

Their loss of value would be entirely due to the legislation passed in Florida, which is why the lawsuit was filed in the first place.

[Lee-Lee]

22. Not the same thing

You can own all the loud exhausts you want. You can have a garage full.

It’s onky when operated on a public road in violation of law that they become an issue.

This is saying that if it’s owned it must be surrendered to the government, no matter what.

[fescuerescue]

41. loud exhausts are perfectly legal in all states

You can own one. you can use it on a track, or in the backwoods.

You can even have it parked it on the street. It's the operation on public streets that is banned.


In the case of bump-stocks. It's now illegal to possess. Even if it never leaves a safe.

IMO, the law will be stricken down.

But we'll find out in a few years as it works it way through the courts.

[Hoyt]

43. Let' hope not. White wingers-- the vast majority of gun promoters -- need to have some of

their lethal toys and weapons controlled.

THE PUBLIC USE TEST: WOULD A BAN
ON THE POSSESSION OF FIREARMS
REQUIRE JUST COMPENSATION?

". . . . .Such laws [bans] would much more likely be passed for the purpose of ridding society of firearms and not because there is a public need to use the weapons. In fact, the weapons would probably be destroyed after seizure. In this more likely case, the public would benefit passively from the arguably safer society in which they would live. This benefit, however, is not public use as defined in this note and does not require compensation under the fifth amendment.

Thus, under the three-part public use test, no compensation would be required by the fifth amendment if there were a federal or state ban on the possession of firearms. Such a result may seem viscerally unfair; however, one must remember that if every regulation of property required compensation, a government would be unable to operate. More importantly, this result is dictated by the words of the Constitution. Under the analysis proposed in this note, that constitutional language is capable of a single, clear interpretation, which can guide courts to a rational treatment of the taking issue.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3833&context=lcp

[NickB79]

18. Public use, OR public purpose since 1954

And banning a lethal weapon modification seems to me to be a public purpose.

[Hoyt]

20. Look, gunners have been spreading this junk, just like they misinterpret 2nd Amendment and Heller

Everything thing gunners say in this regard is to protect their guns and investment. The heck with them.

They didn't offer compensation when switchblades were outlawed, cars that couldn't pass inspection, etc.

You'll know soon enough if you are correct, as well as the other gunner lay attorneys. In the meantime, the NRA and other white wing gun groups will be finding poor, pitiful gun-fanciers who have been harmed by these restriction on bumpstocks.

[Lee-Lee]

23. The government does not seize a car that cant pass inspection

That is a huge and fundamental difference here.

[Hoyt]

27. They are banned from the streets. Besides read this article about the Taking Clause and PUBLIC USE.

The Takings Clause: Not An Obstacle To Smart Gun Laws

As usual, 2nd Amendment experts conveniently leave out the most important phrases. "Well regulated" and "Public Use."

[Lee-Lee]

36. Done under the guise of public safety is public use

The long established case law is that taking things to further an agenda of the government, even if the government doesn’t use it.

Your article at the Giffords Center website dances around some basic facts. Like in none of the cases they cited was property siezed simply because a status of law changed- in fact in all the cases they cited there was a grandfather clause that allowed owners to retain their property, meaning there wasn’t the same fundamental question before the courts.

There is no precedent where a law was passed saying if you own X you must surrender it to the government with no compensation.

Other laws got around Takings Clause issues by allowing owners of an item barred in a jurisdiction the ability to sell it to someone who was in a place were possession was legal, so it was ruled that since they could sell it and get compensation it didn’t violate the takings clause.

This bill, however, mandates all in possession must be either destroyed or turned in without compensation and makes even selling it or giving it to someone in another state a felony, barring any chance for them to get value back for it.

Because they barred even the ability to sell it to someone in another state, there is no grandfather clause, and the only legal course of action is the owner of private property to destroy it or give it to the government without compensation they have gone well past what any allowable legal precinct for the takings clause allows.

If you actually check the cases cited in your article you cite and research them you will see this.

Had they just allowed a grandfather clause and/or left the option for owners to sell them to people in places where they are legal the challenge based on the takings clause likely wouldn’t have any chance. But as is typical the gun prohibition crowd wrote bad laws that didn’t think things out or went too far, so it will backfire.

They could save it with just a grandfather clause or an exemption on the prohibition of transfer to allow sales out of state.

[NutmegYankee]

25. Switchblades are still legally owned in most states.

The Switchblade Knife Act of 1958 banned further importation and interstate sales, but never outlawed ownership. Of the states that ban them, most only apply it to concealed carry or public carrying, or in a specific few possession with attempt to sell. A distinct few states do ban possession, which probably was never was challenged in court as they weren't a common owned item of people Or people were able to apply for a permit to keep them.

[Hoyt]

28. Fine, we should learn from that and ban the private sale and ownership of so-called assault weapons

and switchblades.

[fescuerescue]

42. switches blades were banned to stop gang violence.

As at the time, a switch blade was the "weapon of choice" for street gangs.

[NutmegYankee]

13. Based on Horne v. Department of Agriculture and Berman v. Parker, they have a case.

Especially with Berman v. Parker, which modified public use as "public purpose". Same with Kelo v. New London.

[Hoyt]

21. Well, based on this, they don't have much case. Anyone can sue and delay laws that save lives, but

Last edited Wed Mar 21, 2018, 10:12 AM - Edit history (5)

doesn't mean they will prevail, or should.

lawcenter.giffords.org/the-takings-clause-not-an-obstacle-to-smart-gun-laws/


Note: For some weird reason, one might have to copy and paste the link, or search under article title, The Takings Clause: Not An Obstacle To Smart Gun Laws


"In short, because laws banning dangerous guns and ammunition seek to protect the public rather than to confiscate private property for public use, they are perfectly consistent with the Takings Clause of the Fifth Amendment."

Remember, the people interpreting the 5th Amendment to protect their precious guns, can't read or interpret the 2nd Amendment correctly. Just as a phrase is left out in their interpretation of the 2nd, they leave out "for public use" in their interpretation of the 5th. Then, they claim they are Constitutional scholars.

[NutmegYankee]

24. Your link doesn't work.

Also, it appears to be from a commercial entity, and not an actual legal opinion/decision.

Let me ask you this Hoyt, why did both the United Kingdom and Australia, both countries that have the same legal system as the USA (Common Law), compensate their gun owners? Because it's how the law works. You can pout about it and say obnoxious things about those who disagree with you, but you can't change 1000 years of legal precedent on government seizure of private property.

[Hoyt]

26. Cut and paste the link or search under the title. It cites laws specific to guns. Nutmeg, I really

Last edited Wed Mar 21, 2018, 11:04 AM - Edit history (1)

don't think gun owners deserve a darn thing. They've participated in creating this problem, have elected white wing legislators who not only preserve guns, killing, intimidation, but other white wing agendas.


lawcenter.giffords.org/the-takings-clause-not-an-obstacle-to-smart-gun-laws/


Here are my 4 paragraphs.

The Takings Clause provides that the government shall not take “private property . . . for public use, without just compensation.”1 This provision requires the government to compensate property owners when it takes their property for public use. Most commonly, the Takings Clause has been raised in litigation related to real property (land) where the government is attempting to take or regulate the use of the property through zoning in order to benefit the general public.2

Laws banning especially dangerous guns—such as assault weapons—and large capacity ammunition magazines are not takings and do not require compensation. The Supreme Court and lower courts have long made a distinction between takings of property for public usage, which are takings, and legitimate exercises of state police power that result in a ban or limitation on property that is a threat to public safety or health, which are not takings.3

Recognizing this distinction, several courts have rejected Takings Clause challenges to laws banning the possession of dangerous weapons. For example, in Fesjian v. Jefferson, the District of Columbia Court of Appeals upheld a D.C. law that effectively banned machine guns.4 The court found that “the statute in question is an exercise of legislative police power and not of eminent domain” and therefore did not constitute a taking, even though the ban contained no “grandfather clause” and required owners to dispose of their machine guns.5 Similarly, the Eleventh Circuit in Gun South, Inc. v. Brady rejected a Takings Clause challenge to a law temporarily suspending the importation of certain assault weapons, noting that the government in that case was acting “in a purely regulatory capacity and d[id] not profit from its actions.”6

More recently, in Akins v. United States, the Court of Federal Claims rejected a Takings Clause challenge brought by the inventor of a firearm device that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) reclassified as a machine gun, subject to certain sale and possession restrictions.7 Because ATF was acting pursuant to its conferred police power, the court held that inventor could not state a compensable takings claim under the Fifth Amendment.8 As the court plainly articulated, “[p]roperty seized and retained pursuant to the police power is not taken for a ‘public use’ in the context of the Takings Clause.”9 Quoting longstanding Supreme Court precedent, the court added, “[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed to be a taking or an appropriation of property for the public benefit.”10

________________


Like I said, we'll know soon enough if this challenge thrown up by right wing gun owners, the NRA, etc., and supported by organizations such as the KKK, Stormfront, Militia Groups, 3%ers, Aryan Nation, Friends of George Zimmerman, and worse, prevails and on what grounds.

[NutmegYankee]

29. Some of these cases are based restrictions of sales.

None have been outright bans on ownership with immediate seizure. Some of the laws contained a grandfather clause; some contained only temporary bans; and some placed restrictions on the sale of assault weapons but did not ban their sale. Even the DC case allowed sale outside the district, which is the normal means to get around having to compensate. Some of the previous case law was based on interpreting the 2nd Amendment as not guaranteeing private ownership, but McDonald v. Chicago has closed the door on that.

I understand your opinion, and appreciate the civil discussion. While I do own firearms, I no longer take pleasure in it and haven't touched them in over 3 years. I never owned any considered assault weapons, but still I have also come to consider them a plague on our society, but have rationalized that guns locked away in a safe with me means they aren't out there being sold by the police (which is what they would do if you turned any in).

I do think that a seizure without compensation would do more to rally the hateful right than a just buyback. It would fill them with even more rage, make them even more anti-government, and could cause even more violence. Nor as a liberal do I think the government should take property without just compensation. It goes against a core belief of how government should operate with the people they govern.

[Hoyt]

32. We'll find out soon enough. I don't think the white wingers who want bump stocks will prevail.

You do, and apparently want them to. We'll see. Further debate is fruitless. You like guns in our society, I don't.

I'm waiting for the judge and hope a precedent is clearly set that gunners who hoped to profit from their lethal weapons -- at the expense of society -- are chit out of luck.

[NutmegYankee]

33. It is a non sequitur to state belief in compensation means I want bump stocks in society.

I don’t believe in a government that can take any property for any reason without compensation. Nor does case law support that, especially the link you provided. Just pay the owners and get them off the street. Every other nation who was serious about gun control did just that.

It wasn’t the Great Australian Seizure, it was the Great Australian Buyback.

[Hoyt]

45. Wonder what gunners are going to say about Sessions making possession illegal WITHOUT COMPENSATION?

[Demsrule86]

35. Things have been banned before with no compensation.

[Still In Wisconsin]

16. ...because it can definitely take 20-30 rounds, full auto, to hit Bambi.

Effing gun humpers make me

[Turbineguy]

30. They are fighting for our rights!

To be shot in a public place by a demented stranger with the greatest efficiency.

[Wounded Bear]

31. K & R...

But it's "toeholds."

[Delmette2.0]

37. If a receipt is shown to prove it was a valid purchase and

Standard depreciation and wear and tear reduce the buy back value.

[Amishman]

44. They have a point, I don't like the idea of government seizing any property without compensation

Bad precedent overall even if bump stocks are dangerous and stupid. If the government denies someone of property they should be compensated, period.

I'll go out on a limb to argue that compensation should be overly generous to encourage compliance. I'm fine letting the bastards turn a profit if it means these things actually get removed from circulation and not just hidden away in the attic. My gun nut brother in law was crowing on Facebook that zero bump stocks were turned in after Denver passed their ban. Appeal to their greed and get them turned in.