Why Massachusetts’ “Bump Fire” Stock Ban is Illegal

The Massachusetts legislation, which was signed into law in November, allows current owners a “grace” period of 90 days from its effective date – 1 February 2018 – to get rid of the items in question.  The State recently sent notifications to this effect to all of its registered licensees and owners.

This letter states in part:

Because the law does not allow for transfer or sale of these prohibited items, if you possess a bump stock or trigger crank within the Commonwealth of Massachusetts you should contact your local police department or the Massachusetts State Police to get details of how to transfer custody of the prohibited item to the police for destruction (emphasis added).

Little wonder so many firearms owners remain staunchly opposed to any sort of national registration effort, but I digress…

While banning the items in question from sale, manufacture for sale, and possession are all regulations of highly dubious constitutionality unto themselves, these are not the central focus of this post.  Rather, I am focusing on the de facto confiscation of these items for destruction (the State government’s own words) as the point of contention in this post.

The United States Constitution, though originally only applicable to the federal government except where otherwise explicitly stated (e.g., Article IV), is now nonetheless incorporated to all 50 States (and territories) via the Fourteenth Amendment’s Due Process and Privileges and Immunities Clauses, as the Supreme Court has acknowledged in McDonald v. Chicago (2010) as relates to the Second Amendment specifically.

Thusly, there are only two circumstances in which a government – be it the federal government or a State government – can confiscate (de facto or de jour) personal property.

The first circumstance concerns the legal requirement for Due Process, as explicitly laid forth in the aforementioned amendment:  “…nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added).

The second provision is the Fifth Amendment’s Eminent Domain Clause: “…nor shall private property be taken for public use, without just compensation” (emphasis added).

Insofar as the Massachusetts’ new law is concerned, it fails to meet both constitutional provisions outright.  This law does not allow for any due process of law prior to de facto confiscation of heretofore legally owned and possessed private property.  Thus, it fails to meet the Fourteenth Amendment’s Due Process Clause on its face.

It also fails to meet the Fifth Amendment’s Eminent Domain Clause, in that “just compensation” is not being granted to these heretofore legal private property owners, nor are the items in question being confiscated for “public use” (i.e., “destruction” – Massachusetts’ words – does not meet the plain language definition of “use”).

I fully expect one of two outcomes (or a combination of both) to be realized from this legislation.  As with previously encroaching legislation in the American northeast, I expect this regulation to go largely ignored by the constituency, and/or I expect appeals efforts to ultimately strike this legislation down as unconstitutional as written and applied.

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