Do red flag laws violate the 5th Amendment’s taking clause?
pkbites originally asserted that red flag laws “routinely violate” the 5th and 6th Amendments. Johnny_L.A. more specifically suggested that a red flag law may run afoul of the provision in the 5th Amendment which states “nor shall private property be taken for public use, without just compensation”. This provision is usually called the takings clause.
The argument relies on three premises: first, that the 5th Amendment’s taking clause applies to the states; second, that a firearm qualifies as private property for the purposes of the takings clause; third, that a court’s decision to take away someone’s firearms under a red flag law constitutes being “taken for public use” with respect to the takings clause.
Does the 5th Amendment’s taking clause apply to the states?
The answer is technically no, but effectively yes. Those who don’t care about the distinction (which is mostly inconsequential, in my opinion) may wish to skip to the next heading.
The 5th Amendment itself, passed in 1791, applies only to the federal government. Justice Marshall and a unanimous Court held that the 5th Amendment, and the takings clause specifically, is “not applicable to the legislation of the states.” Barron ex rel. Tiernan v. the Mayor and City Council of Baltimore, 32 U.S. 243 (1833). This holding was a major factor in the passage of the 14th Amendment in 1868, which among other things contains a nearly verbatim copy of the 5th Amendment’s due process clause.
XIV. […] No State shall […] nor shall any State deprive any person of […] property, without due process of law.
In 1896, the Supreme Court held that the 14th Amendment’s due process clause - not the 5th Amendment’s takings clause - requires states to provide compensation when taking private property for public use. Chicago, Burlington & Quincy Railroad Company v Chicago, 166 U.S. 226, 236 (1895). In the words of Justice Harlan,
"Due protection of the rights of property has been regarded as a vital principle of republican institutions. ‘Next in degree to the right of personal liberty,’ Mr. Broom in his work on Constitutional Law says, ‘is that of enjoying private property without undue interference or molestation.’ (p. 228.) The requirement that the property shall not be taken for public use without just compensation is but ‘an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen.’ 2 Story Const. § 1790; 1 Bl. Com. 138, 139; Cooley’s Const. Lim. *559; People v. Platt, 17 Johns. 195, 215; Bradshaw v. Rodgers, 20 Johns. 103, 106 ; Petition of Mt. Washington Road Co., 35 N. H. 134, 142; Parham v. The Justices &c., 9 Georgia, 341, 348; Martin et al., Ew parte, 13 Arkansas, 198, 206 et seq.; Johnston v. Rankin, 70 N. C. 550, 555.
[…] “The [state] legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.”
So while the 5th Amendment and its takings clause is inapplicable as applied to the states, we have an identical restriction through the 14th Amendment’s due process clause. It makes sense to speak of the 5th Amendment’s takings clause as “incorporated” against the states, and to speak of a violation of the 5th Amendment’s takings clause although the relevant provision is, technically speaking, the 14th Amendment’s due process clause.
Does a firearm qualify as private property for the purposes of the takings clause?
Yes. The takings clause and the power of eminent domain (international equivalent: compulsory acquisition) is usually associated with the taking of real property, i.e. land. Thing.Fish in his response seemed to imply that the “private property” covered by the takings clause only extends to real property. This was shot down in-thread but I do want to add an authority.
In 2015 the Supreme Court held that the government’s Fifth Amendment duty to pay just compensation applies to personal property (in the case, raisins) as well as real property. It is even suggested that the takings clause was probably a response to the practice of impressing horses, carriages, and other military supplies during the revolutionary war. Horne v. Department of Agriculture, 576 U.S. 350, 357 et seq (2015). (For those interested, the majority for this holding consisted of Justices Roberts, Scalia, Kennedy, Thomas, Alito, Ginsberg, Breyer, and Kagan; only Justice Sotomayor disagreed).
Does a court’s decision to take away someone’s firearms under a red flag law constitute count as being “taken for public use”, with respect to the takings clause?
I’m not sure about this one and hope others can provide a more definitive answer.
Traditionally takings involve transfer of title from the individual to the government. Red flag laws are distinguished by their temporary nature. In Florida the judge may order the respondent to surrender all licenses, firearms, and ammunition for a period of up to twelve months. I am not sure if this counts as a transfer of title because, notably, the individual must complete another background check to have the property returned.
The Supreme Court has long held that the “property” protected by the 5th and 14th Amendments is more broad than formal title. The common metaphor is that “property” is a “bundle of rights”. The Court has ordered compensation for state regulations or “regulatory takings” that destroy “property” such as patent rights, easement rights, and materialmen’s liens. James v. Campbell, 104 U.S. 356 (1882); United States v. Welch, 217 U.S. 333 (1910); Armstrong v. United States, 364 U.S. 40 (1960).
The federal government banned the sale of products made of eagle parts in the '70s. A seller of eagle feather trinkets sued on the theory that the regulation deprived him of “property” because he no longer could sell his inventory, and on lost value. The Court rejected the argument, noting that he still possessed the feathers and could charge people to look at them. Andrus v. Allard, 444 U.S. 51 (1979). Contrast with firearms and ammunition that has been surrendered under a red flag law, which are for the duration of forfeiture neither in the owner’s possession nor available for the owner to display for commercial purposes.
The case of Mugler v. Kansas, 123 U.S. 623, 668 et seq. (1887), comes to mind as possibly controlling, but on further examination it does not seem to resolve the question to my satisfaction. Kansas had prohibited the manufacture and sale of alcohol, and owners of breweries who disregarded and were thus convicted under the relevant laws. They contended, inter alia, that the prohibition destroyed the use of the brewers’ property (a vested property interest) without compensation. Therefore, the law was an unconstitutional “taking” of “property” and so the convictions must be overturned.
The Court rejected the brewers’ arguments. They distinguish between exercise of the eminent domain power (taking of property “for public use”), and of police powers (exerted “for the protection of the health, morals, and safety of the people”):
As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes,. is prejudicial to the public interests.
Red flag laws are surely intended to protect the health and safety of the community. On the other hand red flag laws are distinguished because the owner is not prohibited from using his property for specified purposes, he is actually ordered to surrender the property for a period of time. His control and use of the property for lawful purposes is disturbed and his right to dispose of the property is abridged, albeit not necessarily permenantly.
Another point of distinction between these cases and red flag laws is the official who causes the “taking”. In all of the cases I can find, it is a political branch. In red flag cases, it is a judge.
This raises a complicated philosophical question. Do state judges establish and abridge property rights - do they make common law - or do they merely find whether a property right exists at common law? If a judge issues a protective order for me to surrender all firearms &c, did the judge take away my right to use my property for lawful purposes, or did the judge find that in my present state I have no right to use this property? If it is the former, I would call it a taking. If it is the latter, I would not.