Modern Sportsman, LLC v. United States
| Decision Date | 23 October 2019 |
| Docket Number | No. 19-449,19-449 |
| Parties | THE MODERN SPORTSMAN, LLC, et al., Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Fifth Amendment Takings Claim; Informal Rulemaking; Police Power; Bureau of Alcohol, Tobacco, Firearms and Explosives; Bump Stock; Machinegun; Motion to Dismiss; RCFC 12(b)(6).
Ethan Albert Flint, Flint Law Firm, LLC, Edwardsville, IL, for plaintiffs.
Nathanael Brown Yale, U.S. Department of Justice, Civil Division, Washington, DC, for defendant.
In reviewing this case, the Court is sympathetic to the plaintiffs who have lost the rights to the bump stocks they purchased while they and the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") seemingly thought bump stocks were not machineguns and were therefore legal. In a private context, what occurred would be remedied by the concept of justifiable reliance and plaintiffs would be compensated. However, the law is different in this case because the government, as the sovereign, has the power to take property that is dangerous, diseased, or used in criminal activities without compensation. Here, ATF acted properly within the confines of the limited federal police power. In nearly all cases, if the government confiscated a gun legally possessed by a person not committing a crime, the government would have to pay just compensation or return the gun. Importantly, however, guns are protected by the Second Amendment of the Constitution, but machineguns are not, as the crime waves of the 1920s and 1930s convinced Congress that machineguns do not fall within the scope of protections offered by the Second Amendment. The courts have not overturned this measure and this Court will not endeavor to do so now.
This case is before the Court on defendant's Motion to Dismiss. On December 26, 2018, the Department of Justice's ("DOJ") Bureau of Alcohol, Tobacco, Firearms and Explosives issued a Final Rule clarifying that the term "machinegun" encompasses "bump-stock-type device[s]" (hereinafter "bump stocks"), and consequently requiring the timely surrender or destruction of bump stocks.1 Plaintiffs allege that the Final Rule's requirement to surrender or destroy their bump stocks effected a Fifth Amendment taking of their property.
The impetus for ATF modifying its regulations arose when, after the deadly mass shooting in Las Vegas on October 1, 2017, President Trump issued a memorandum to the Attorney General. Application of the Definition of Machinegun to "Bump Fire" Stocks and Other Similar Devices, 83 Fed. Reg. 7,949, at 7,949-50 (Feb. 20, 2018) (hereinafter "Bump Stock Memorandum"). In that memorandum, the President urged the DOJ to "fully review" how ATF regulates bump stocks and similar devices, and, "as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns." Id.; see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,516-17 (Dec. 26, 2018) () (hereinafter "Final Rule"). In response to the President's Bump Stock Memorandum, ATF published a Notice of Proposed Rulemaking in the Federal Register on March 29, 2018, in which it proposed changes to its regulations concerning machineguns listed at 27 C.F.R. §§ 447.11, 478.11, and 479.11. Bump-Stock-Type Devices, 83 Fed. Reg. 13,442 (proposed Mar. 29, 2018) (hereinafter "NOPR"). After an opportunity for notice and comment, which closed on June 27, 2018, ATF published a Notice of the Final Rule on December 26, 2018. See generally Final Rule. The Final Rule had an effective date of March 26, 2019, affording owners of bump stocks a period of ninety days to either destroy or surrender their devices at a local ATF office. Id. at 66,530, 66,554. Accordingly, plaintiffs collectively destroyed and discarded the resulting scrap from 74,995 bump stocks.2 See Amended Complaint (hereinafter "Am. Compl.") at 7.
Plaintiffs filed their Complaint with this Court on March 26, 2019, and an amended complaint on March 28, 2019. See generally Complaint; see generally Am. Compl. On May 28, 2019, defendant filed its Motion to Dismiss pursuant to Rule 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"), arguing that a taking did not occur because the requirement to surrender or destroy bump stocks served to protect the public health and safety, and was therefore a valid exercise of the police power. Defendant's Motion to Dismiss (hereinafter "Def.'s MTD") at 1. Defendant further alleged that "a compensable taking does not occur when the Government takes property that is, or may be, subject to a statutory prohibition." Id. Plaintiffs filed their Response to defendant's Motion to Dismiss on June 23, 2019, reiterating their takings arguments. See generally Plaintiffs' Opposition to Defendant's Motion to Dismiss ). On July 22, 2019, defendant filed its Reply in support of its Motion to Dismiss. See generally Defendant's Reply in Support of Its Motion to Dismiss (hereinafter "Def.'s Reply"). The Court held oral argument on August 28, 2019, and defendant's Motion to Dismiss is fully briefed and ripe for review. For the reasons set forth below, the Court grants defendant's Motion to Dismiss.
Over the past century, Congress has passed a series of laws to regulate the interstate firearms industry with the underlying goal of increasing public safety. When enacting the first of these major statutes, the National Firearms Act of 1934 ("NFA"), Congress wanted to ensure firearm regulations would not be too liberally construed. See H.R. REP. NO. 73-9741, at 1-2 (1934). Accordingly, the NFA regulated the manufacture, importation, and dealing of a narrowly-tailored set of firearms.3 26 U.S.C. § 5801 et seq. (2018); see H.R. REP. NO. 73-9741, at 1-2 (1934). Among those firearms was the "machine gun," which the NFA originally defined as "any weapon which shoots, or is designed to shoot, automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the trigger." National Firearms Act, 73 Pub. L. No. 474, 48 Stat. 1236 (1934); H.R. REP. NO. 73-9741, at 1-2.
Congress further augmented its regulation of machineguns through the Gun Control Act of 1968 ("GCA"), 18 U.S.C. § 921 et seq. The purpose behind enacting the GCA was to more effectively regulate interstate commerce in firearms, with the ultimate goal of combatting the "skyrocketing increase in the incidence of serious crime." S. REP. NO. 89-1866, at 1 (1966); see generally 18 U.S.C. § 921 et seq. Moreover, Congress sought "to reduce the likelihood that [firearms] fall into the hands of the lawless or those who might misuse them," and to assist States and their political subdivisions in enforcing existing firearms laws. S. REP. NO. 89-1866, at 1; see generally 18 U.S.C. § 921 et seq.
Less than two decades later, Congress passed the Firearm Owners Protection Act ("FOPA"), Pub. L. 99-308, 100 Stat. 449 (1986), reiterating its desire to fight violent crime while simultaneously strengthening protections for the rights of law-abiding gun owners. 132 Cong. Rec. 9590 (1986) (statement of Sen. Orrin Hatch); see generally Pub. L. No. 99-308, 100 Stat. 449 (1986). Significantly, FOPA added 18 U.S.C. § 922(o) to the GCA, making it "unlawful for any person to transfer or possess a machinegun" not lawfully obtained prior to May 19, 1986. Consistent with this prohibition, both FOPA and the GCA incorporated the definition of "machinegun" as used in the NFA,4 which the NFA has for decades defined as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
26 U.S.C. § 5845(b) (emphasis added).
Altogether, these three statutes form the foundation upon which ATF has promulgated rules and regulations that interpret and enforce the objectives of those statutes, including restrictions related to the prohibition on owning machineguns not lawfully obtained prior to 1986. Indeed, since the enactment of FOPA in 1986, ATF has promulgated a number of regulations interpreting provisions of the GCA and NFA pursuant to its delegated authority to investigate and enforce criminal and regulatory violations of Federal firearms law. Def.'s MTD at 5 (citing 18 U.S.C. § 926(a), 26 U.S.C. §§ 7801(a)(2)(A), 7805(a), 28 U.S.C. § 599A(b)(1), 28 C.F.R. § 0.130(a)(1)-(2)). Among those regulations are 27 C.F.R. §§ 447.11, 478.11, and 479.11, which contained identical definitions of the term "machinegun" to those in the NFA and GCA prior to the Final Rule. Final Rule at 66,514. Pursuant to those regulations and ATF's delegated authority, if the owner of a firearm or device wants to know if their firearm or device meets the definition of "machinegun," he or she may request a clarification letter from ATF; ATF may in turn require the submission of a prototype for testing.5 BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, NATIONAL FIREARMS ACT HANDBOOK § 7.2.4 (2009), https://www.atf.gov/firearms/docs/atf-national-firearms-act-handbook-chapter-7/download.
In 2002, ATF received a request for clarification regarding the Akins Accelerator, which ATF temporarily determined was not a machinegun. Final Rule at 66,517. Upon further review of the device and receipt of related requests from members of the firearms industry, however, ATF determined that the Akins Accelerator was in fact a machinegun. Id. (citing ATF Ruling 2006-2). Thus, ATF first classified a...
To continue reading
Request your trial