In December 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued a rule “to clarify” that bump stocks—or gun stocks that can assist semi-automatic firearms in mimicking a fully automatic weapon—are “machine guns” and are therefore banned under the Gun Control Act of 1968. Accordingly, when the rule took effect in March 2019, the ATF, in an unprecedented move, instructed those who possessed bump stocks to “destroy the devices or abandon them at an ATF office.”

According to a plaintiff challenging the regulation, ATF’s regulation represented the first time in the history of the United States that the federal government has outlawed the possession of property by ordering it destroyed or surrendered without just compensation.

Despite the groundbreaking nature of ATF’s rule, courts have been somewhat divided on whether the bump stock ban is an unconstitutional “taking for public use, without just compensation” under the Fifth Amendment. The Supreme Court has held the Takings Clause applies to personal property. Although there is no federal police power enumerated in the Constitution, courts have largely found the ATF’s action is not a taking because it is made under the federal government’s “police power”—an authority traditionally reserved for state governments.

What the Parties Are Arguing

Plaintiffs challenging the rule argue that requiring the surrender or destruction of what were lawfully acquired bump stocks is both a physical taking and a regulatory taking. It is a physical taking under Horne v. Department of Agriculture because the rule permanently dispossesses bump stock owners of physical property, and it is a regulatory taking under Lucas v. South Carolina Costal because the rule deprives bump stock owners of all beneficial uses of their property.

The government has contended, however, that actions taken under its “police powers” are not takings “for public use” because the government is acting to preserve public health and safety.

Whether or not an action is a taking under the police power theory turns on whether or not the federal government has a police power in the first place because the federal government only has powers enumerated in of the Constitution.

In a footnote, the rule asserts that, “[i]n the takings context, the use of the term ‘police power’ in connection with Federal regulation does not posit the existence of a ‘plenary police power,’” citing to Lopez v. the United States, which held that a gun control law that would transform Congress’s commerce authority into a police power was unconstitutional. The footnote continues, “Rather it refers to the ‘the power of the federal government to engage,’ pursuant to one or more of its enumerated powers, ‘in activities not unlike those engaged in by the states under their inherent sovereign powers’ to protect public welfare,” and cites to a Federal Circuit opinion.

The ATF did try to distinguish the rule from California’s ban on high capacity magazines, which the 9th Circuit held was a taking, because bump stocks are “deleterious devices.” However, the agency did not recognize that California, as a state, has a police power, whereas the federal government does not. In fact, every U.S. Supreme Court case the rule cited in support of its position that the ban was not a taking dealt with state laws.

Several Courts Have Found Federal Police Power Justifies Bump Stock Rule

In October 2019, the Court of Federal Claims dismissed a suit challenging the ban as a taking finding the use of the police power does not trigger a just compensation requirement because such an action is not for “public use.” In Modern Sportsman, LLC v. United States, the court held that “ATF acted properly within the confines of the limited federal police power.” Another Court of Federal Claims decision, McCutchen v. United States, reached a similar conclusion.

In February 2021, the D.C. District Court, citing Modern Sportsman, followed suit finding it is “well settled” that banning the possession of property “for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community,” cannot be a taking. Notably, these decisions almost exclusively cited to cases that upheld uncompensated takings at the state government level. And none of the decisions discussed Lopez or fully explained whether they agreed with the rule’s footnote distinction between a federal government “plenary police power” and police power in “the takings context.”

The Northern District of Texas Found No Federal Police Power Exists and Gave the Government the Opportunity to Justify the Rule on the Basis of Enumerated Powers

However, one court has come out the other way. In Lane v. United States, the Northern District of Texas recognized that the federal government does not have a police power justifying a taking without just compensation. After concluding that the text and structure of the Constitution do not provide the federal government with a police power, Judge Brantley Starr discussed how the Supreme Court had confirmed the limitations of federal police power and noted that even Wikipedia affirmed that the police power is limited to the states.

However, rather than ruling against the federal government outright, the district court gave the government an opportunity to file a new motion based on the federal government’s enumerated powers. As South Texas College of Law Professor Josh Blackman has explained, the federal government may be able to seize property without compensation under authority of the Commerce and Necessary and Property clauses (although perhaps not in this context). Notably, Judge Starr asked the government to explain how Lopez and United States v. Morrison, holding that Commerce Clause does not extend to regulating violence against women, may limit the federal government’s ability to rely on these enumerated authorities.

An Affront to Separation of Powers?

In addition to being challenged as a taking, the rule has also been facially challenged as a violation of the separation of powers. Last month, the Sixth Circuit Court of Appeals held that 1) the ATF’s interpretation of the Gun Control Act of 1968 was not entitled to deference because the Chevron doctrine does not apply in the criminal context and that 2) the ATF’s rule was “not the best interpretation” of the statute. The court recognized that the executive branch agency “could use Chevron deference to interpret a statute so as to criminalize the activity and then prosecute an individual for doing it” and that the Constitution makes Congress responsible for determining “the scope of what should be criminalized.” Accordingly, the Sixth Circuit enjoined the rule in the four states in its jurisdiction: Kentucky, Michigan, Ohio, and Tennessee. There is now a circuit split on the issue as the Tenth and D.C. Circuits have reached the opposite conclusion.