A use of the Fifth Amendment to protect the Second

by Skip

Commerce Claws the rest of the Constitution?US Senator Diane Feinstein and NY Gov. Andrew Cuomo have infamously said that they would be fine with an outright confiscation of citizens firearms.  We do see talk of Government officials, via either official or de facto gun registration databases, coming to demand peoples’s guns.  Some have mentioned voluntary gun buybacks (which I would be fine with from the owners standpoint (not so much using my tax money to do so, however).  Some, however have declared that such should be mandatory.  Which then triggers the Fifth Amendment:

“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.”

Already there is talk that the NY SAFE gun ban may well be unconstitutional as it mandates that gun owners must get rid of their arms and standard capacity magazines (no, they are NOT high capacity magazines with 10-15 rounds for a handgun and 30 rounds for a modern sporting rifle as those have been sold for years for time and in the millions for quantity of sales). In essence, to this non-lawyer (oh, Grokster Tim?  Weigh in here if you can!), it seem that the State is “taking” a person’s personal property away without recompense (and in fact, declaring them to be a felon).  So would simply paying the owners $50 a pop for mags sufficient?  Hmmm, Lars Larson, a talk show host that I listen to in the early evenings if I am out and about has an interesting theory that simply paying for them is insufficient to satisfy the Fifth (and thus, protecting the Second):

From Big Government:

Larson asked on-air whether the government must pay you when it confiscates your property. The answer is yes, and then some. It does not violate your rights to forbid you from buying some sort of property (if it doesn’t violate some other right; the government can’t forbid you from buying a Bible or a newspaper, for example). Nor does it violate your rights if it passes certain restrictions on using your property.

But the Takings Clause of the Fifth Amendment to the Constitution provides that if the government takes your property, it’s unconstitutional unless the government both (1) gives you “just compensation”—meaning the market value of your property, and (2) that property is for a “public use.” Government uses this power of eminent domain to take land for building things like roads or post offices.

But even if Missouri officials gave citizens money for their guns, they’re still not putting them to a public use, rendering this taking unconstitutional. Although this measure isn’t going to become law, as a lawyer, part of me wishes it would so I could participate in a case where the federal courts would strike down this law and slam the anti-gun politicians behind it.

So good job to Lars Larson. If enough of his colleagues in the media put the same amount of time into understanding the Constitution, we might inform enough American citizens to bring sanity to this discussion, and show Barack Obama’s gun-control agenda to be the big-government power grab that it is, one that has no chance of actually reducing violence.

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