Confiscation and the 5th


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Werewolf
November 22, 2004, 10:36 AM
The subject of gun confiscation occasionaly crops up here. One of the arguments presented concerning why it won't happen is how much it would cost the government to buy firearms back from owners if a confiscation law were passed based upon the 5th amendment requirement for "just compensation".

Here's what the 5th says about that:Amendment V
...; nor shall private property be taken for public use, without just compensation.I don't believe that if confiscation were made law that the government would have to pay owners 1 red cent.

Why? The key prhase in the 5th is "taken for public use".

In the event of confiscation the confiscated firearms would not be taken for public use. They'd be destroyed. Only if some were turned over to LE agencies for their use could one make the argument that they were for public use. IMO that would be a stretch since it would be easy for the government to claim that LE agencies weren't public.

I don't believe the 5th can be used as an argument against confiscation based on the cost of confiscation?

Thoughts...
Comments...

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Hawkmoon
November 22, 2004, 11:52 AM
Standard disclaimer: IANAL

However, that's never prevented me from having an opinion. You have an interesting point, but I would argue that you are taking an overly-restriction definition of "use."

Any sort of confiscation program would have to be taken under the police power theory. The purpose of a governmental entity having police power is to secure the public safety, health and welfare. Thus (one might argue), any action that furthers that goal constitutes a "use" of any tangible property involved. Bt taking the citizens' firearms, the gummint would be "using" them to (supposedly) enhance public safety. Ergo, compensation would be required.

Erich
November 22, 2004, 12:35 PM
Let's just hope we never have to hash this question out in court, hmm? :(

squadfounder
November 22, 2004, 12:37 PM
This is indeed and interesting question...

The quandary indeed lies in the definition of the statement "public use" and I think that given the track record of many who like to interpret the Constitution in whatever manner serves their own agenda, I think there is cause to fear that the 5th would not provide ironclad protection.

This historical example is a bit different, but when prohibition was enacted and alcohol made illegal, great quantities of booze were destroyed under government supervision. Does anybody know if bar and distillery owners, etc., were compensated by the gov't for the product they already had on hand?

Sam Adams
November 22, 2004, 01:05 PM
My understanding of the law (and I'm no Constitutional specialist) in this area is that once the possession of something has been made illegal, it is "contraband." As contraband, one is not "allowed" to own it, and it therefore ceases to be your "property." Those people who have ever had drugs confiscated from them could probably back me up (and I think that there are precious few of them on THR, but you get the point).

My position is that if the 2nd won't protect us from government action in this area, neither will the 4th, 5th or any other amendment. Only Travis McGee's Rule .308 will offer sufficient protection. Rule .308 has some pretty big and sharp teeth, so I wouldn't want to be someone sent to collect the "contraband." [Of course, as with virtually everyone else on THR, I don't think that any law or amendment to the Constitution can make firearms ownership illegal or morally wrong, but that's a different matter than is being discussed in this thread].

Sam
November 22, 2004, 01:31 PM
It is all right there in Sam Adams tagline in the works of
The Big Kozinski. When it come down to confiscation who in the #@ll thinks they will pay the slightest bit of attention to the constitution?

Sam

Preacherman
November 22, 2004, 05:49 PM
The 5th would still come in for some heavy use, though...

FED: "We've come to collect your guns."

GUN-OWNER: "Guns? What guns?"

FED: "The ones you're on record as having purchased."

GO: "Oh, those... I sold them / lost them / they were stolen" (delete whichever is not applicable).

FED: "Will you swear to that?"

GO: "I'll have to take the 5th on that one... " :D

DigitalWarrior
November 22, 2004, 06:02 PM
Fed: The fifth what? The Constitutionally granted rights have been revoked for social terrorists. Guns kill tens of thousands of people every year and you are hiding these weapons of mass destruction. We invoke our right to search these premises.

-or-

Fed: Get in the back of the car. :eek:

Standing Wolf
November 22, 2004, 06:04 PM
They can't have my guns. That's not on the list of options.

R.H. Lee
November 22, 2004, 06:11 PM
Preacherman's post raises interesting points. First, it is my understanding that lying to a federal agent/officer is a felony. So, if they can prove you are still in possession of the 'contraband', they've got you. OTOH, if they search your 'domicile', and come up with nothing, where are they? But if you say nothing, just stare at them, then they come in and search and still find nothing, you've not lied, so what can they do?

Didn't Australia offer compensation, 'buyback', recently for outlawed firearms?
How did they handle the outlawing of handguns in England recently?

When California passed Roberti-Roos (IIRC) back in 2000, I don't think they offered any compensation, just notice through the media that certain firearms would be illegal to possess after such-and-such a date, and if you were in possession, you'd be guilty of a felony.

And doesn't Chicago, or someplace in IL, currently have a JBT team going door to door confiscating firearms?

DigitalWarrior
November 22, 2004, 06:18 PM
First, it is my understanding that lying to a federal agent/officer is a felony.

Nothing good can come of talking to the police. Let your lawyer do it.

spartacus2002
November 22, 2004, 06:52 PM
First, it is my understanding that lying to a federal agent/officer is a felony.

However, SCOTUS has said they can lie to YOU and it's just good investigative tactics.

Thinking about those two statements above sends chills down my spine...

Derek Zeanah
November 22, 2004, 07:03 PM
The problem with this discussion is it discounts the prospect of asset forfeiture (http://www.fear.org/) as part of the collection effort. You know, charging the property itself with the crime, rather than you. After all, only people have rights... :scrutiny:

Sam Adams
November 22, 2004, 07:08 PM
"FED: "We've come to collect your guns."

GUN-OWNER: "Guns? What guns?"

FED: "The ones you're on record as having purchased."

GO: "Oh, those... I sold them / lost them / they were stolen" (delete whichever is not applicable)."

An easier way out is to form a corporation and transfer all of your guns to it. Then you can truthfully state that "I don't own/no longer own any of the guns that you claim I purchased X years ago." If they ask "Well, if you don't own them, then who does?" your answer should either be a repeat of your first, or "Sir, I would like to contact my attorney, and until he/she is present, I respectfully decline to answer any further questions." The latter statement may be the very best answer to give first, last and always - but having some entity owning the guns is probably preferable to owning them yourself.

Travis McGee
November 23, 2004, 11:22 AM
Does anybody seriously believe that when the fedgov arrives at the place where they are ready to confiscate our guns (ignoring the 2nd Amd) they will be bothered by the compensation issue? Not in the least will they be bothered. "For public use" will be one escape clause, if they feel they need one at all. They will just declare the guns to be dangerous contraband ("tools of terrorism" for example) collect them, and destroy them.


In my novel, they go after semi-auto rifles first, after a bogus "stadium massacre." I think confiscation will go down easier if it's in stages. Most hunters and skeet shooters won't mind much, if "only" semi-auto rifles are banned, as long as they are "allowed" to keep their bolt rifles and shotguns...for a while.

http://matthewbracken.web.aplus.net/bookcover.jpg

SLOdraw
November 24, 2004, 12:12 AM
"First, it is my understanding that lying to a federal agent/officer is a felony."


Martha Stewart is in club fed for lying to an investigator/during an investigation, not insider trading.

Mulliga
November 24, 2004, 01:26 AM
If it ever gets to confiscation, I doubt I'll greet the gun-grabbers so calmly. :eek:

carpettbaggerr
November 25, 2004, 07:10 PM
If it gets to confiscation, I doubt the grabbers will be polite. Or worry about warrants.

Ryder
November 25, 2004, 07:43 PM
lying to a federal agent/officer is a felony

And why isn't there a penalty for them to lie to us? Must not be such a bad thing afterall. ;)

As for the original question. If they are confiscating them for public safety then that is a form of public use as far as I am concerned... But I won't be taking any of their money.

Zedicus
November 26, 2004, 11:15 AM
I think Travis has it Pegged, It'll be the "The'll never come after my Huntin Rifle/Shotgun" Crowd who will be the main problem,

It's how they got away with it in the UK, & just look at the UK now, Violent Crime is up, Self-Defence is more or less Illegal & Now they are Banning Knives!. :fire: :barf:

artherd
November 26, 2004, 01:22 PM
Who gives a ????? it's not going to be a factor for me.

Sergeant Bob
November 26, 2004, 06:43 PM
Travis McGee In my novel, they go after semi-auto rifles first, after a bogus "stadium massacre." I think confiscation will go down easier if it's in stages. Most hunters and skeet shooters won't mind much, if "only" semi-auto rifles are banned, as long as they are "allowed" to keep their bolt rifles and shotguns...for a while.

Matt, what I'm interested in is your new novel, "Domestic Enemies". How's it coming along?

For those folks who are relatively new to the board, you really MUST READ ENEMIES FOREIGN AND DOMESTIC (http://www.enemiesforeignanddomestic.com/) if you want to explore a really scary (and believeable) gun confiscation scenario.

If you enjoyed reading about "Confiscation and the 5th" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!