Ownership of Arms Protected by Takings Clause, 2nd and 14th Amendments

Why I Am Suing The Governor of Virginia, iStock-1055138108
Ownership of Arms Protected by Takings Clause, 2nd and 14th Amendments. iStock-1055138108

U.S.A.-(AmmoLand.com)-– On August 30, 2022, a three-judge panel in the Third Circuit Court of Appeals unanimously ruled the Pennsylvania government violated the Takings clause, the Second Amendment, and the Fourteenth Amendment when they refused to return a gun collection of the parents of a man who was convicted of murder.

The parents never committed a crime. The state never used the parents’ gun collection as evidence.  From a list of properties, I estimate 47 guns, accessories, computers, and other items valued at $40,000 or more were taken.

The State refused to return the parents’ property under the rule of force: we have them, and we won’t give them back.

After their son had lost his appeal, the parents asked for their property back. It had not been used as evidence in the case.  The state refused. The parents sued in federal district court under U.S. 42:1983, civil rights act. The case was filed on June 10, 2020.

The District Court ruled against the parents. The parents appealed to the Third Circuit Court of Appeals.

The appeals court ruling, written by Judge Bibas, appears to be unanimous (no dissent was seen) and very strongly written. The Bruen decision was important in this case. From the order of the three-judge panel:

BIBAS, Circuit Judge. Although police may seize potential evidence using a warrant, they may not keep it forever. Yet they did that here. After a man assassinated a Pennsylvania State Trooper and injured another, troopers seized his parents’ guns. The government never used the guns as evidence. And eight years after the crime, once the son lost his last direct appeal, the officers still refused to return them—even though the officers do not claim that the parents or the guns were involved in the crime.

Because the parents were never compensated, they have a takings claim. And because they lawfully owned the guns, they have a Second Amendment claim too. But since they had a real chance to challenge the government’s keeping the guns, they got procedural due process. So we will affirm in part, reverse in part, vacate in part, and remand.

The court made strong statements affirming the Second Amendment protects arms from being arbitrarily confiscated, even if compensation is made:

II.BY HOLDING ON TO THE PARENTS’ GUNS AFTER THE CRIMINAL CASE ENDED, THE OFFICIALS INFRINGED THEIR RIGHT TO KEEP ARMS

The Second Amendment guarantees “the right of the people to keep and bear Arms.” According to the parents, the officials validly seized their guns under a warrant, but violated that right by refusing to return them. To decide that claim, we ask whether the constitutional text and “this Nation’s historical tradition” permit holding on to the guns. N.Y. State Rifle & Pistol Ass’n, Inc.v. Bruen, 142 S. Ct. 2111, 2126 (2022) (abrogating United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), which set forth our previous framework for evaluating Second Amendment challenges). They do not. We hold that unless an exception applies, the Second Amendment protects a person’s right to keep his lawfully owned guns…

The government notes that the Takings and Due Process Clauses more clearly protect private property. Walters, 660 F.3d at 317; Schwab & Sprankling at 167–68. So, it suggests, the Second Amendment provides “not a property-like right to a specific firearm,” but just a general right to buy guns. Houston, 675 F.3d at 445.

We disagree. We would never say the police may seize and keep printing presses so long as newspapers may replace them, or that they may seize and keep synagogues so long as worshippers may pray elsewhere. Just as those seizures and retentions can violate the First Amendment, seizing and holding onto guns can violate the Second. The Second Amendment may let the government outlaw specific types of weapons—perhaps “dangerous and unusual weapons.” Heller, 554 U.S. at 627 (dicta); accord Bruen, 142 S. Ct. at 2143; Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1548 (2009). But as we have explained, it does forbid unjustifiable burdens on the right to “keep” one’s own arms.

 And that protection is not redundant of more property-focused protections. For instance, the Takings Clause allows seizures so long as the government pays “just compensation.” But the Second Amendment appears to forbid “disarm[ing] private citizens” even if the government compensates those citizens for their property. Cf. Heller, 554 U.S. at 591–92. The other guarantees do not prevent this one from applying too.

This is a strong ruling restoring Second Amendment rights. As a Circuit Court ruling, it is a precedential ruling which applies to the entire Third Circuit. The Third Circuit includes Pennsylvania, New Jersey, Delaware and the District of the Virgin Islands.

For New Jersey, Delaware, and the District of the Virgin Islands, this is a tsunami in firearms law, potentially washing away decades of Second Amendment infringements.

The long-awaited Bruen decision is restoring Second Amendment rights by affirming the “text and history” requirement for interpreting the plain language of the Constitution set forth in the Heller decision.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Cruiser

“It’s not a justice system, it’s just a system.”

Wild Bill

Well said.

Boom

I bet some of those weapons had already made it to private safes within the homes of the personnel of ‘the department’…

john

If they appeal, I hope the SC will strike the non sensical phrase from Heller,
“dangerous and unusual weapons.” Heller, 554 U.S. at 627 , all weapons are dangerous and anything can be called a weapon, and WTH is a unusual weapon, it was not defined….Even our founders used the generic all in-compassing word ARMS. The Government has abused its power for decades….what part of “SHALL NOT BE INGRINGED” don’t they get. It is all about disarming the American people, I will not comply.

Last edited 1 month ago by john
Finnky

F15’s, machine guns, ballistic missiles, SAMS – these all spring to mind as standard weapons. Thus none of them are “unusual.” Thus all should be protected for common use..

Wild Bill

Sure, but do you think that you can afford one?

swmft

Im sure there is a lot of us stuff on black market right now, the teleban needs money more than us stuf they will never be able to maintain

Finnky

No I could not afford most of those. Wouldn’t even want to feed a machine gun… Other items require significant maintenance, for which I am not qualified. While I’m a safe driver I’ve only flown a glider and suspect I’d quickly kill myself with a jet of any sort.

I don’t need any of those items, just legal right to acquire them if I did need them.

DIYinSTL

Biological, chemical, nuclear, and radiological are the “dangerous and unusual” weapons that come to mind which may not be covered by the Second Amendment. Not everyone I know agrees to that limitation.

swmft

anti personal mines all stuf government has ,because of tyrannical nature of government tactical nukes would be protected and both neutron and explosive, icbs maybe not but short range …fbi surrounds house blow up their headquarters and low yield their staging area unless army came after you there would be no more response, and with the bad stuff they have done under color of law if they ever try a waco again there will be no one supporting them local police may even form a line to defend . when people talk about deep state it is these criminal elements… Read more »

Last edited 1 month ago by swmft
HLB

If the government takes your property and illegally keeps it, and then you take it back by whatever means required, can they use force to stop you? In other words, is a person required to use the judicial system to achieve a legal end? If you are required to use the judicial system, then that forces you to spend your money and time to do so (5th amendment takings clause?), whereas they are paid by taxpayers for their time and suffer no losses. I submit that the end justifies the means.

HLB

Roland T. Gunner

That is part and parcel of the government’s “process is the punishment” doctrine.

musicman44mag

Never keep all of your eggs in one safe. All the more reason for 80% lowers and handguns. They can’t take what they don’t know about.

DIYinSTL

… and are unable to find with a broadly written search warrant. Unless you have 160 acres and the equipment to bury things deep, it’s near impossible to hide both guns and ammo from their prying eyes, pry bars, and sledge hammers.

musicman44mag

Lol. Why do you limit yourself to your property.

swmft

I have places on my property they could try and search would cost them dearly ,hell there is a sinkhole in the driveway that is bridged that does not show ,big enough to swallow a bulldozer (never recovered) have tried to see how deep it is more than 300 feet ,so nature can be used as an advantage too

musicman44mag

That’s right, think ahead and think big.

John Dow

I’d like to know by what reasoning they took property from the parents in the first place. How are computers related to the son’s crime?

Ope

How are the parents firearms related to their sons crimes? None of the parents property has anything to do with his crimes.

Wild Bill

It was institutionalized theft. I wonder if they got every gun back and in what condition.

Finnky

I’d agree about jet if I were younger, but at my age and fitness level maneuvering “Gs” could possibly do me in. Point was that while I wouldn’t find value in training ME to fly the jet, got no problem with other people doing so. Heck if it were a bit cheaper one I were wealthier – might make sense to buy one (or a few) and make available for community use . No clue what maintenance is required for SAMS or ballistics, but as you said firearms are easy. Most important is just how wrong biden is about needing… Read more »