On October 1, 2017, a man opened fire at the Route 91 Harvest Music Festival in Las Vegas. Fifty-eight people were killed and over 500 injured as Stephen Paddock fired more than a thousand rounds into the crowd. Paddock was able to fire so many rounds because his guns were equipped with “bump stocks,” devices that attach to guns and allow them to fire multiple rounds in quick succession, mimicking automatic fire. In the aftermath President Trump issued a memorandum to the Attorney General requesting that the DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) ban bump stocks and other attachments that “turn legal weapons into machineguns.” After notice and comment concluded, the ATF issued a final rule in December 2018 banning bump stocks and requiring owners of bump stocks to “destroy” or “surrender” all bump stock devices within ninety days. The regulation has been met with significant pushback, including a challenge to the validity of the rule, which is now up for certiorari. A coalition of sellers and owners filed suit alleging that requiring the destruction or surrender of their property amounted to a taking without just compensation under the Fifth Amendment. The plaintiffs had together destroyed nearly 75,000 bump stocks supposedly worth over $20 million. The government moved to dismiss the case for failure to state a claim.
The Court of Federal Claims dismissed the complaint in The Modern Sportsman v. United States because the regulation of bump stocks was a valid exercise of the police power. Senior Judge Loren A. Smith began by reviewing the regulatory history of automatic weapons and bump stocks in particular. He explained that Congress regulated machine guns since 1934 and had banned machine guns in 1986. That ban included “any part designed . . . for use in converting a weapon into a machinegun.” Judge Smith explained that the ATF had in recent years interpreted this language to include any device which allowed multiple shots to be fired with a “single pull of the trigger.” In a 2018 rule, the ATF interpreted the statute to ban all bump stocks.
Judge Smith then dismissed the plaintiffs’ takings claim. He clarified that in order to bring a takings claim, plaintiffs must show that the property has been taken “for a public use.” And under existing doctrine, property is not taken for “public use” if it is seized as an exercise of the police power. In particular, compensation is not required “where the purpose of a regulation . . . is to prevent injury to the public welfare as opposed to merely bestowing upon the public a nonessential benefit.” Judge Smith concluded by highlighting the extent to which allowing such a claim to proceed would hinder any government efforts at gun control. If the government were required to compensate gun owners whenever a particular gun was banned or restricted in use, it would “effectively ‘compel the government to regulate by purchase.’”
The outcome of Modern Sportsman was unsurprising. Despite the plaintiffs’ contention that certain gun regulations can amount to a regulatory taking, scholarship and precedent suggest otherwise. Most applicably, in 2008 the Court of Federal Claims heard Akins v. United States, in which plaintiffs brought a Takings Clause claim against a ban of the “Akins Accelerator.” The Akins Accelerator was a particular version of a bump stock with an internal spring. The court held that the banning of the Akins Accelerator did not amount to a taking both because the regulation was a proper exercise of the police power and because the manufacturer’s “expectancy interest” in manufacturing and selling Akins Accelerators was limited. Because firearms were such a heavily regulated industry, Akins should have been aware of the possibility that particular guns might be banned or regulated at any time.
Though the Modern Sportsman decision was correctly decided, in failing to fully engage with the significant losses suffered by plaintiffs, the court missed an opportunity to explain why its decision was not only correct, but also fair. Modern Sportsman explicitly expressed sympathy for the plaintiffs’ predicament in several passages throughout the opinion. However, it engaged very little with the level of loss suffered by plaintiffs. The court mentioned the total number of bump stocks destroyed by plaintiffs, but it never placed a dollar figure on the loss (puzzlingly, neither does the complaint). But reporters have estimated that the plaintiffs suffered a $20 million loss of inventory, which on first glance seems like a tremendously unfair blow for a business to absorb no matter the wisdom of the regulation. Akins handled this difficulty by explaining that gun sellers are on notice that such regulations are possible, and thus can prepare for that eventuality. Modern Sportsman would have curtailed any hint of unfairness by further explaining the lack of an expectation interest in the ability of plaintiffs to sell bump stocks.