On Cedar Point Nursery and Firearm Regulations
On June 22, the Ninth Circuit heard oral arguments in Duncan v. Bonta. The bulk of the arguments regarded the challengers’ claim that California’s large capacity magazine (LCM) ban violates their second amendment rights. Judge Paul Watford, however, focused on their takings claim, training all six of his questions to both sides on the subject. The next day, on June 23, the Supreme Court issued its Cedar Point Nursery decision – altering (or clarifying, depending how you view it) existing takings jurisprudence.
The statute at issue in Bonta, California Penal Code’s § 32310, bans the possession of LCMs, and it does not exempt those who already lawfully owned one. California required preexisting owners to take one of four actions: remove their LCMs from the state, sell them to a licensed dealer, submit them to law enforcement, or modify them to comply with the regulation.
The challengers argued that the regulation constitutes a per se physical taking. They liken the case to Horne v. Department of Agriculture, in which the Supreme Court held that a state regulation compelling raisin farmers to surrender a portion of their raisins to the government was a per se physical taking. The challengers argued in their briefs that the forced surrender of property, even to a private dealer or to a different state, is equivalent to a government seizure for takings purposes. Furthermore, they argued that LCM owners who comply by limiting the capacity of their magazines is akin to the raisin farmers turning their grapes into wine in Horne; the Supreme Court there determined that this option for compliance did not forestall the takings issue because property rights “cannot be so easily manipulated.”
The state, in briefing and oral arguments, underscored the variety of ways that LCM owners can comply with the regulation short of surrendering possession. During oral arguments, Judge Watford asked the Assistant Attorney General about the process of modifying LCMs to comply with the law; he noted the existence of do-it-yourself videos online and the low cost of fillers that reduce magazine capacity to the legal limit (approximately six to seven dollars). Furthermore, the state distinguished Horne because modifying the size of the magazine doesn’t affect the owners’ ability to retain and use their property for the same lawful purposes.
It should be noted that the Third Circuit rejected a takings claim in a factually similar case, Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey.
Judge Watford did not specifically invoke the then-pending decision in Cedar Point Nursery, but the Court’s decision will nonetheless bear significantly on the parties’ arguments in Bonta. In Cedar Point Nursery, the petitioners challenged a California regulation which required agricultural employers to allow union organizers onto their farm on a limited, but substantial basis. Until now, the Court has distinguished between physical occupations which are temporary/limited and those which are permanent; only permanent physical occupations have been per se takings and have required just compensation. Though California’s access regulation was limited, the Court in Cedar Point Nursery found that it was a taking because it “appropriate[d] a right to invade the growers’ property.” The decision in Cedar Point Nursery thus expanded this category of per se takings to include appropriations of core property rights.
This doctrinal development likely supports a new argument for the challengers beyond Horne. Following Cedar Point Nursery, California’s LCM regulation might “appropriate” preexisting owners’ rights to possess their property without damage or seizure. Takings jurisprudence is currently unclear whether the distinction between real property (as in Cedar Point Nursery) and chattel (as in Bonta) is significant for takings purposes, but Chief Justice Roberts’ majority opinion in Horne seems to support the notion that they should be treated the same: “[t]he Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”
To be clear, a ruling that § 32310 is a taking would not make the LCM ban unconstitutional, it would merely require payment of “just compensation” to all preexisting owners. The implications are potentially vast, however. States frequently ban items when their use is determined too dangerous: notable examples include bump stocks, Four Loco, and anabolic steroids. Furthermore, the bundle of entitlements that property owners possess is wide and somewhat nebulous; if “appropriation” of a core property right is grounds for a taking, these cases might grow ubiquitous. Bans such as California’s may have just become much more onerous for the taxpayer.