Opinion
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Property Rights and Self-Defense: The right to own firearms and private property is as essential as the right to armed self-defense, and any government infringement undermines the Second Amendment.
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Critique of “Takings” Laws: Current legal interpretations allowing states to ban firearm components without compensation violate both the Fifth and Second Amendments.
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Government Overreach: State actions to confiscate firearms without fair compensation undermine personal sovereignty and reduce individuals to state property.
When Americans challenge State actions that unlawfully target the fundamental right to armed self-defense, they universally point to the Second Amendment of the Bill of Rights, which codifies this fundamental, eternal, and unalienable right.
The right of the people to keep and bear arms shall not be infringed” is concise, clear, coherent, and categorical.
But there is another right, equally important. Yet, it is one that gets scant attention.
It is a fundamental, eternal, unalienable, and unassailable right NO less sacred and profound than the right of the people to keep and bear arms.
It is a Right contiguous to and one that complements the Right contained in the Second Amendment. In fact, without it, the Right to armed self-defense is incomplete, attenuated, and devoid of effect.
Americans have the right to the exclusive ownership, possession, enjoyment of, and sovereign dominion over their property.
Americans will find the codification of this Natural Law Right in the last portion of the Fifth Amendment of the Bill of Rights of the U.S. Constitution.
The Fifth Amendment says,
“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.”
The portion of the Fifth Amendment we direct our attention to here is referred to in law as the “Takings Clause.” Is it pertinent to and crucial to the exercise of the right to armed self-defense? It is.
Consider what it would mean for the Common Man to have an individual right to keep and bear arms if he can be readily deprived of that “property interest” in those arms through State action.
Because the “Taking” of private property is an arcane and nebulous issue, unscrupulous Governments, both State and Federal, operated by ruthless, immoral or amoral men, deliberately obfuscate, skirt over, or openly defy the import and purport of the Constitution and the fundamental, unalienable Rights and Liberties of the people.
We may begin with these truisms:
- The right of a person to own property, like the right to armed self-defense, predates man’s crafting of government; it does not rely on the Constitution for its existence.
- The Bill of Rights codifies rights pre-existent and therefore internal and intrinsic to Man’s being and essence and are therefore removed from State control and interference.
- The right to armed self-defense is inextricably bound to the unalienable, unassailable right to self-defense, that is to say, self-preservation.
Similarly, the Right of a person to own and possess private property and to be free from Government intrusion into one’s exclusive ownership of firearms, ammunition, and accessories is and must be absolute, as must his dominion over that property be absolute. Therefore, Government encroachment on one’s absolute title over and enjoyment of his property is and must be unalienable and unassailable.
While the taking of Private “Real” Property (as opposed to Private “Personal” Property)—when necessitated for public use—has a long-standing jurisprudential history, the taking is lawful only so long as the Government provides “Just Compensation” to the owner harmed by the taking and there is a legitimate Public Use for it.
However, the application of “Takings” of “Personal Property” [IE, Guns and or Magazines] when the government has no public use for it and provides no compensation to the person is another matter entirely.
The “Taking” of that “Personal Property” is a stretch that doesn’t pass Constitutional muster, especially when the property at issue is inextricably tied to another unalienable, unassailable right, namely and specifically, the right of the people to keep and bear arms.
Yet, Courts in “Blue” State jurisdictions routinely take that property in the absence of providing “Just Compensation” for it and in the absence of any Public Use for it.
Is such taking of a person’s firearms or component parts of those firearms ever Constitutionally permissible even if, theoretically, the State did provide “Just Compensation” for the property, and a legitimate public use did exist sufficient to meet the Fifth Amendment requirements?
The problem remains. Such “Taking” will always collide with the right omnipresent in the Second Amendment.
When faced with an actual challenge to a Government action grounded on a Fifth Amendment “Taking” of firearms or firearm accessories, sans “Just Compensation” to the owner of the property, and when there is presumptively a lack of public use for the property, Courts have brazenly ruled the action legal and Constitutional anyway.
They do this even though, on its face, such action violates the Fifth Amendment’s “Takings Clause” and, by logical implication, the Second Amendment as well.
Let’s consider a couple of cases.
First, we consider the case, Association of New Jersey Rifle and Pistol Clubs vs. Attorney General of New Jersey, 910 F.3d 106 (3rd Cir. 2018).
This case involved a challenge to New Jersey’s Large Capacity Magazine (LCM) Ban. The Court justifies (really rationalizes) the ammunition magazine ban on “Mass Shootings.”
“New Jersey has made it illegal to possess a magazine capable of holding more than ten rounds of ammunition.”
“Mass Shootings “ from 2006 to 2015 served as the pretext for this law in NJ and in nine other states. By bringing up the pretext for the Act as the first matter discussed in the Court opinion, a person can already see where the Court’s rulings are headed.
Civilians are not permitted to continue to own and possess magazines defined as ‘LCM’ (Large Capacity Magazines).
And just so you know, as the Court points out, both New Jersey Police officers and active-duty officers are exempted from the ban. Fancy that!
How does the Common Man who is not an active duty or retired police officer comply with the Act?
The Court says this:
“The Act provides several ways for those who are not exempt from the law to comply. Specifically, the legislation gives LCM owners until December 10, 2018 to (1) modify their LCMs ‘to accept ten rounds or less’; (2) render firearms with LCMs or the LCM itself inoperable; (3) register firearms with LCMs that cannot be ‘modified to accommodate ten or less rounds.’ (4) transfer the firearm or LCM to an individual or entity entitled to own or possess it; or (5) surrender the firearm or LCM to law enforcement.”
On the day the Democrat Governor Phil Murphy signed the Act into law, Plaintiffs, NJ Rifle and Pistol Clubs, and two individuals filed suit under Section 1983 of the Civil Rights Act, alleging violations of the Second Amendment, the Takings Clause of the Fifth Amendment, and violation of the Equal Protection clause of the Fourteenth Amendment.
On the Fifth Amendment challenge, the Court Majority ruled that the Government’s Fifth Amendment Taking of the LCMs is neither a physical taking by the Government nor a constructive, onerous “regulatory” Taking and thereupon concluded the New Jersey Government did not violate the Fifth Amendment. Huh?
The Government is infringing on a person’s ownership and possessory interest in a major component of his firearm. The owner must either modify the magazine at his expense or destroy it. If he chooses to modify the “LCM,” this reduces the effectiveness of this weapon.
Moreover, this act will likely void the manufacturer’s warranty since the magazine is an integral component of the weapon made to function in accordance with the manufacturer’s design and engineering of it.
- If the property owner sells the ammunition magazine, that sale is made under duress. He is therefore unlikely to receive fair market value for it.
- If he surrenders the magazine to the police, under compunction of State law, he receives no compensation for it.
- If he cannot modify it, and cannot readily obtain a fair value (Just Compensation) for it, and wishes to retain possession of it, but without rendering it inoperable, he has to make the case that he cannot modify it without effectively destroying it.
In that event, he must register the “LCM” separately from the weapon even though it is an integral part of it. That places both him and the banned component under a perpetual microscope.
Registration effectively infringes on the New Jersey owner’s absolute control over the magazine, as the State demands that his right to exclusive ownership be conditioned on the owner’s compliance with mandatory and draconian law enforcement procedures. Such registration procedures have not existed before.
The Government acquires constructive title over it. And, of course, the Government could eventually modify the law, requiring “the owner” to surrender or destroy the magazine anyway, during his lifetime.
And, what happens after the individual dies? The Government encroaches on the owner’s right to bequeath the “LCM” to an heir, thereby further weakening one’s exclusive right over the property. In the event of the original owner’s death, the owner’s heir cannot reregister the LCM in the heir’s name. Under State Statute, he must render it inoperable, or transfer it to a person or entity who is entitled to own or possess it, or surrender it to law enforcement.
Note the absence of any discussion of “Public Use” here as the Government tacitly says the LCM has no Public Use. By dictating how “the owner” must comply with the law, the Government is also denying the fact of a “Private Use” for the LCM.
This New Jersey law violates one’s Natural Law Property Right in the ammunition magazine. The State Law therefore also operates as a violation of the Natural Law Right to Armed Self-Defense.
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In another case, this one out of Rhode Island, Ocean State Tactical, LLC vs. Rhode Island, 646 F. Supp 3d. 368 (D.R.I. 2022), the Court ruled that a ban on LCMs without compensation (whether fair or not) does not violate the Takings Clause requirement for Just Compensation because of other considerations that presumptively and effectively nullify the Fifth Amendment requirement.
The Court took as axiomatic that, where a State acts under the auspices of its “Police Power,” such action overrides Fifth Amendment concerns. How exactly? The Court doesn’t say.
The Court ruled that the LCM Ban was a valid exercise of police power. The Court says that statutes similar to Rhode Island’s, which outlaw possession of LCMs with no provision for compensation, have been upheld against Takings Cause challenges, as there are a number of laws prohibiting particularly deadly firearm accessories.
The Court then cites several sister court jurisdictions that have upheld bans on all manner of firearms accessories, including bump stocks. However, those findings are not legal precedent in Rhode Island. And, in any event, unconstitutional actions of a multiplicity of States do not ipso facto, as if by magic, evolve into a constitutional action, overriding the Bill of Rights.
The cases cited turn the sanctity of the Takings Clause on its head.
Plainly, State Governments that take a person’s private property without any compensation, let alone “fair compensation,” make a mockery of the very notion of private personal property rights.
It begs the very question at issue to say no violation of the Takings Clause ensues because public policy considerations, and “public safety,” and the Police Powers of the State render one’s private property considerations moot, even irrelevant.
When the property under attack is necessary to effectuate the most important right of any person, self-preservation, the insouciance exhibited by these State Governments is unsufferable.
The fact they don’t even provide for the public safety that they incessantly go on about makes their attack on one’s basic right to take responsibility for his own Personal Safety that much more egregious.
The American who wishes to exercise his right to armed self-defense is asking nothing of the State but to be left alone.
By preventing a person from being left alone, a State says one’s life is not his own. A person slowly devolves into a thing, an object. He becomes as much the property of the State as those things, his firearms and accessories, that once were his own.
About The Arbalest Quarrel:
Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.
For more information, visit: www.arbalestquarrel.com.
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