In response to the horrific Las Vegas massacre, which left 58 dead and many more injured, the Trump Administration issued a Final Rule in December 2018 classifying bump stocks–the device the shooter used to inflict maximal carnage–as “machine guns” and thus banned under federal law. A group of individuals and entities who owned previously legal bump stocks sued in the Court of Federal Claims, arguing that they were entitled to compensation under the Fifth Amendment’s Taking Clause for having to destroy their property. On October 23, 2019, in Modern Sportsman v. United States, the Court of Federal Claims dismissed the challenge, holding that the Final Rule was promulgated pursuant to the police power to protect public safety and therefore not a compensable taking under the Fifth Amendment. The decision could have implications for the pending challenge to the Rule itself and to the viability and scope of new proposals for federal assault-weapons bans.
The Modern Sportsman court summarized its holding as follows:
In reviewing this case, the Court is sympathetic to the plaintiffs who have lost the rights to the bump stocks they purchased while they and the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) seemingly thought bump stocks were not machineguns and were therefore legal. In a private context, what occurred would be remedied by the concept of justifiable reliance and plaintiffs would be compensated. However, the law is different in this case because the government, as the sovereign, has the power to take property that is dangerous, diseased, or used in criminal activities without compensation. Here, ATF acted properly within the confines of the limited federal police power. In nearly all cases, if the government confiscated a gun legally possessed by a person not committing a crime, the government would have to pay just compensation or return the gun. Importantly, however, guns are protected by the Second Amendment of the Constitution, but machineguns are not, as the crime waves of the 1920s and 1930s convinced Congress that machineguns do not fall within the scope of protections offered by the Second Amendment. The courts have not overturned this measure and this Court will not endeavor to do so now.
The case settles (for now) an issue that has been hotly debated ever since the Trump Administration announced it would reclassify bump stocks as machine guns. In fact, there is a currently pending cert petition that raises the question of whether the ATF’s interpretation of the statutory term “machine gun” through its bump stock regulation is correct—or indeed if ATF should have been given any deference at all in its regulations construing that term.
Another potential implication of the decision comes in the context of a hypothetical ban on so-called assault weapons. Some current presidential contenders, most notably, Beto O’Rourke, have argued for a federal law banning assault weapons and implementing a mandatory buy-back. This proposal would reach farther than previous efforts at restricting these types of weapons. Under the 1994 federal assault weapons ban, for example, any prohibited weapons manufactured before the ban’s effective date were grandfathered in and remained legal to possess. Under O’Rourke’s plan, on the other hand, any weapon that qualifies would have to be turned over. That type of proposal is more analogous to the situation with the Final Rule governing bump stocks—there’s no grandfathering in there. And this new Modern Sportsman decision suggests that, as a legal matter, the type of compensation O’Rourke is proposing would not even be necessary. As the Trump Administration argued in that case, “a compensable taking does not occur when the Government takes property that is, or may be, subject to a statutory prohibition.”