Eminent Domain and Guns

[Sam Adams]

With the Kelo case that's before the USSC this week, everyone is talking about property rights - IOW, the rights connected up with real property (i.e. real estate). However, this has me thinking (which is dangerous, I know)...

...let's say that New London wins, and every village, town, city, county and state can now buy your property for "market value" (whatever that means, which if nothing else means lots of money for lawyers), whether you want to sell it or not. Does anything prevent a local government from forcing you to sell it your guns, ammo, reloading equipment and components, bayonets, etc., which it will then turn around and sell to some foundation funded by George Soros and a bunch of other anti-gun billionaires for a small profit (thereby justifying "public use")? Could this be the new tool of the antis?

 

[Sam Adams]

Moderator

If you think that this belongs in Legal & Political, please move it. FYI, I was in General, and saw a post about Eminent Domain, so I posted it here.

 

[Waitone]

Very perceptive sir. If the SC rules in violation of the Constitution then we will see the beginning of the confiscation of private property primarily in the US but all over the world. Control private property and you control everything else. Oh, it won't be obvious. There will be treaties and programs and institutions. . . .kinda like what happens now. Just there will be no recourse should you want to fight.

Now let's suppose just to be supposing. Whaddya think is going to happen when government (you name the level) beings to feel free and porky to begin property confiscation and they happen to run afowl of an advocate of Second amendment rights. Is that when we begin to see the interaction of the second and fifth amendments?

 

[TallPine]

Does anything prevent a local government from forcing you to sell it your guns, ammo, reloading equipment and components, bayonets, etc.,

Okay, well ... then here's the ammo ...

 

[Sam Adams]

Is that when we begin to see the interaction of the second and fifth amendments?

I'm sure that several cases will result. The only questions are when, and to what extent?

 

[Sam Adams]

Okay, well ... then here's the ammo

I'm sure that a lot of good citizens will be happy to make sure that the bullets get to the correct authorities as fast as possible - and unless FedEx has Mig-25 delivery planes, our way will be faster.

 

[duckslayer]

They can only take real property from you under ED. Everything else is personal property. I don't see this happening.

 

[Otherguy Overby]

Here's the deal

Let's just assume the SC roles over.

At some time in the future government just starts taking property everywhere using Eminent Domain and offering to move you into "govenment approved" public housing somewhere.

You've lost your real estate.

Since the government would then own most of the land, except of course for the rich, famous and well connected, would you the expect the very same government to manage it well?

You've lost your future.

The government, as always mismanages everything, so your assets dwindle to nothing. The economy is dying because the government now needs all profits just to survive... Gotta pay the bureaucrats and JBTs, you know.

You've lost everything.

You are then left with only your life to defend.

Nothing to lose.

Do you still have a gun?

And ammunition?

You have a future!

 

[patent]

...let's say that New London wins, and​

Its a good question, but I'm not sure the Kelo case matters so much to your question.

As it stands right now they use eminent domain to condem slums all the time, to prevent blight, etc. So why can't they just declare guns a blight to the city, to be causing all kinds of problems, and just take them now? I don't think they need to resell them to Soros at a profit to do this.

patent

 

[patent]

They can only take real property from you under ED. Everything else is personal property.​

Why?

Why can't they take other personal property? Most statutes have limitations in them, the state has voluntarily passed a law that says only real property can be taken, but say those state laws are changed, what then?

 

[Waitone]

I suppose that once you head down the road of confiscated real property you are only a decision or two from the confiscation of personal property.

But I was speculating on the potential of armed force to prevent the seizure of personal real property by constitutional means. Such event would no doubt make it to the courts for review. At some point one could see a case before SCOTUS where one side claimed the second amendment as justification for opposing an illegal and unconstitutional taking "permitted" by the courts interpretation of the fifth amendment.

 

[Sam Adams]

Duckslayer

Here's the text of the 5th Amendment, direct from the USSC website:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis added by Sam Adams]

There's no limitation on the type of property that can be taken "for public use," other than that "just compensation" must be paid.

Reading the arguement of New London in the case at issue, as long as the town (i.e. the public) is better off, then it can take whatever it would like. Making a profit of $1/gun would, apparently, pass muster under this reasoning.

Please tell me I'm wrong...anyone.

 

[Sam Adams]

Waitone

Such event would no doubt make it to the courts for review. At some point one could see a case before SCOTUS where one side claimed the second amendment as justification for opposing an illegal and unconstitutional taking "permitted" by the courts interpretation of the fifth amendment.

I disagree. Such event would only be reviewed by a court in the context of a murder or attempted murder charge...if the property owner in question wasn't staring at the inside lid of a coffin at the time, that is. The case would never make it on appeal to any court, let alone the Supreme Court, based on the notion that the RKBA allows you to use arms to enforce the 5th Amendment "takings" clause.

 

[CAPTAIN MIKE]

Strict Scrutiny Test

While states do reserve 'police powers' under the 10th Amendment, laws that interfere with fundamental rights must pass a 'strict scrutiny' test which means they must be very narrowly tailored to support a "compelling" state interest.

Generally, because the burden of proof is on that state or municipal government that passes the law to show that it should not be invalidated under that standard, and because they are held to that compelling state interestt & 'strict scrutiny' standard it usually means that the law is NOT likely to be upheld.

Rather than fight it out state by state, we should ALL let our Congressmen and Senators know that we expect them to "co-sponsor" legislation that will give our CCW permits the same national recognition that our marriage licenses and drivers licenses have.

 

[Waitone]

You are right. Chances of getting a case like this to SCOTUS would be small if for no other reason than SCOTUS would not want to rule on the purpose of the second amendment. We've lost sight of what the SA is all about. We have a generation of people who can vote who believe the SA is about hunting. Meanwhile, the intimidation and coersive aspects of the SA has disappeared into the memory hole.

That said, I can see such a case winding its way ever so slowly.

 

[Standing Wolf]

Sooner or later, a city such as San Francisco is going to outlaw firearms, then send out letters informing people they've got seven days to turn in their guns. I doubt eminent domain will be involved, but hey, the lefist extremists have a great many tax dollars to pay assault lawyers with, so you never know what will show up in the fine print.

 

[SteveS]

Sooner or later, a city such as San Francisco is going to outlaw firearms, then send out letters informing people they've got seven days to turn in their guns. I doubt eminent domain will be involved, but hey, the lefist extremists have a great many tax dollars to pay assault lawyers with, so you never know what will show up in the fine print.

The mechanism already exists in asset forfeiture laws. They just outlaw certain guns and confiscate...and you can forget about any kind of compensation, they are "contraband."

 

[artherd]

Sooner or later, a city such as San Francisco is going to outlaw firearms

Already in a bill.

 

[Art Eatman]

There was a case over in one of the Carolinas over a governmental refusal to allow a person to build on his property. He sued in federal court that the refusal was a "taking" of a real-property right under the 5th Amendment--and won.

It seems to me that calling for confiscation of personal property of whatever sort would also be a taking, and would be subject to evaluation by a jury--as is commonly the case in disputed Eminent Domain takings of real estate.

If every gunowner forced the government into court, and a jury set a fair-market value on every gun, I doubt that many governmental budgets could afford the effort.

Art

 

[ProGlock]

If the government sides with the city, this only reinforces what I already know to be true...

Abolition of all property and land ownership and the application of all rents for public purposes

Perhaps some others will wake up and realize the horrible truth, but I anticipate the sheep to roll over yet again.

 

[what42]

Sooner or later, a city such as San Francisco is going to outlaw firearms

Isn't this already the case in DC? I don't understand how any law can deny citizens the right to purchase any guns and not be considered in violation of the constitution. Once again the legal system has failed the people. The courts don't seem to be willing to stand up for the government limitations that are clearly laid out in the constitution.

 

[2nd Amendment]

I've seen a lot of fine words over what restrictions the government at all levels is under, how it operates honorably and how it's functionaries are decent sorts.

Fine.

But in the end government does what it wants. It's just a question of size and who is in charge at the time. Given the right combination it's always possible to find a way around any restriction...assuming one is even concerned about appearances. And as I have asked before, what do you really think you're going to do about it? Afterall, what you are willing to do really defines the value of those words on paper that people cite as protection.

 

[Mad Man]

(click on picture above for larger version)

from http://www.peeniewallie.com/2005/06/eminent_domain_1.html

 

[dolanp]

It does make one wonder what would happen if there was a real crisis. As we know during the famous bank robbery in CA, the police went and got guns from a gun shop. If the SHTF would they hit every gun shop and the citizens as well? Leaving some people defenseless so the cops can have more guns?

 

[Vernal45]

But in the end government does what it wants. It's just a question of size and who is in charge at the time.

Bingo


If the governemnt wanted to take guns, it would. This Eminent Domain is just a dangerous precedent. Just think, A Public Health Issue? Some antis have rumbled to fight guns on just that, Public Safety, Health issue. HMMM, not crime but Health. SO, yes, if the Government wanted to, it could. Would it succeed, I have not a clue.