Takings Clause and the Second Amendment

Eugene Volokh takes a look at the case of US v. Edward L. Brown. The question seems to be whether the Court can order a collection destroyed after the collector is convicted of a felony, or whether the collector is permitted to transfer the collection:

For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the government’s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process of law….

The Court seems to have argued that the government can direct the liquidation of the collection for the convicted person’s benefit. Meaning the government directs the collection to be sold, with the proceeds going to the convict. This would seem to me to be the fair way of going about it.

This is all assuming it’s a case where the firearm isn’t subject to forfeiture, or is contraband. Obviously if a collection of guns is pulled off a drug dealer, those guns are subject to forfeiture, along with other property used in furtherance of the crime. Another case would be an unregistered machine gun, being contraband, could just be taken.

3 thoughts on “Takings Clause and the Second Amendment”

  1. On the other hand, I can see a person wanting their children to get firearms that have been in the family for many years, so the liquidation of the firearms might not be the best choice of things to mandate.

  2. The court simply found that just because all of a sudden a person cannot lawfully possess firearms, doesn’t mean the government can take them without compensating for them. The most likely way would be for the court to direct liquidation with the proceeds being returned to the dispossessed owner. This doesn’t apply to firearms that are taken by due process through forfeiture or confiscation or firearms that could not be lawfully possessed prior to the loss of rights.

    Transfer to a family member is problematic since it is seen as a way to appear to comply but keep possession. I don’t see a way that they would permit the firearms to be held for minor children since parents have control over minor children property, i.e., constructive possession. If you’re at risk of being convicted of a felony and you want to keep the firearms in the family, you’ll have to see if your lawyer can arrange an acceptable transfer prior to the conviction.

  3. Closest analogy I can think of is stock – if someone is forced by a court to no longer possess stock in a company – what happens to that stock? I(It’s a little quirky in that stock cannot be destroyed).

    I think they’re forced to sell in that case.

    Me, I’d have sold the firearms in question with a contract to return them if I was acquitted; I think. Which is close to what happened here, no?

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