[00:00:00] Speaker 01:
OK, counsel, we've combined these two arguments in 20-1107 and 20-1188.

[00:00:07] Speaker 01:
And the counsel are advised that this is a little more difficult than the normal course of business, because you can't get visual cues from us.

[00:00:26] Speaker 01:
So I'd ask you to listen carefully

[00:00:28] Speaker 01:
for when a judge starts to talk, to ask a question, and to stop what you're saying.

[00:00:36] Speaker 01:
You got that, Ms.

[00:00:37] Speaker 01:
Gelman?

[00:00:39] Speaker 02:
Yes, thank you.

[00:00:40] Speaker 01:
Mr. Dinser?

[00:00:41] Speaker 02:
I understand, Your Honor.

[00:00:44] Speaker 01:
OK.

[00:00:44] Speaker 01:
Ms.

[00:00:44] Speaker 01:
Gelman, you're serving five, I understand.

[00:00:48] Speaker 02:
Yes, that's correct.

[00:00:50] Speaker 01:
OK.

[00:00:50] Speaker 01:
Why don't you go ahead and start your argument?

[00:00:53] Speaker 02:
Thank you.

[00:00:54] Speaker 02:
May it please the court.

[00:00:56] Speaker 02:
The two cases that are before the court today both concern the ATF final rule banning bump stock devices.

[00:01:04] Speaker 02:
That rule required everyone who has lawfully purchased the bump stock to either destroy the bump stock device or abandon it at an ATF office.

[00:01:15] Speaker 02:
The only issue.

[00:01:17] Speaker 02:
Yes.

[00:01:18] Speaker 01:
This is Judge Wallach.

[00:01:20] Speaker 01:
I have a number of questions for you.

[00:01:23] Speaker 01:
Okay.

[00:01:25] Speaker 01:
Since we have some time, I'm going to just go through.

[00:01:27] Speaker 01:
On page 23 of the red brief, the government says the Supreme Court has never held that a statutory prohibition on dangerous personal property as opposed to real property.

[00:01:41] Speaker 01:
That's my insertion.

[00:01:43] Speaker 01:
Is that a correct statement?

[00:01:49] Speaker 02:
Your Honor, could you repeat that for me, please?

[00:01:52] Speaker 01:
The argument argues, and we couldn't find anything.

[00:01:55] Speaker 01:
The Supreme Court has never held that a statutory prohibition on dangerous personal property, as opposed to real property, constitutes a taking.

[00:02:06] Speaker 01:
Is that correct?

[00:02:08] Speaker 02:
I don't know of any Supreme Court case that holds that a prohibition on dangerous personal property is a taking.

[00:02:15] Speaker 02:
This is a fairly novel situation.

[00:02:19] Speaker 01:
Okay.

[00:02:20] Speaker 01:
Page 13 to 14 of the blue brief.

[00:02:24] Speaker 01:
You say that the Supreme Court's early police power cases were made in the context of, I'm quoting you, a mere diminution of property values.

[00:02:36] Speaker 01:
How does that square with Samuels v. McCarty?

[00:02:40] Speaker 02:
Samuels v. McCarty is one of those early cases that the Supreme Court in Lucas v. South Carolina has indicated were a group of cases

[00:02:53] Speaker 02:
that expressed the court's view on why the state may diminish the value of property.

[00:03:03] Speaker 02:
These cases do not apply to cases where all value has been taken from property.

[00:03:11] Speaker 02:
Samuel G. McCarty is an unusual one, certainly, from that group of cases.

[00:03:15] Speaker 02:
But there are circumstances to it that make it inapplicable to this case.

[00:03:21] Speaker 02:
In that case, the setting of that case was that there was the option for the plaintiff to register so that he could sell the remaining alcohol that was in his stocks under the few limitations and he had not registered.

[00:03:40] Speaker 02:
So I view this case as one of the instances of a forfeiture for a failure to comply with an existing regulation.

[00:03:50] Speaker 02:
But that's a more specific answer to your question, but I think that the general answer is that in Lucas V. South Carolina, Justice Kalia explained that these cases cannot be used in the modern context

[00:04:06] Speaker 02:
the way they were, as they existed in the late 19th century and beginning of the 20th century.

[00:04:13] Speaker 05:
This is Judge Toronto.

[00:04:15] Speaker 05:
Can you just remind me?

[00:04:17] Speaker 05:
I don't mean to be petty.

[00:04:18] Speaker 05:
Justice Scalia was speaking for the court there.

[00:04:21] Speaker 05:
Is that right?

[00:04:21] Speaker 05:
Or was he speaking for less than the court?

[00:04:25] Speaker 02:
No, I believe he was speaking for the court.

[00:04:26] Speaker 05:
OK.

[00:04:27] Speaker 05:
So the court said this.

[00:04:28] Speaker 05:
OK.

[00:04:29] Speaker 02:
Yes.

[00:04:30] Speaker 02:
So I think.

[00:04:33] Speaker 02:
Yes, Your Honor.

[00:04:35] Speaker 01:
On page 22 of the Blue Breed, you argued that the final rule, I'm quoting you, was not an exercise of police power because it, quote, was prompted by a change in policy, not by greater familiarity with bump stocks, and was obviously new legislation, not interpretation of statutory language.

[00:04:58] Speaker 01:
Didn't the shooting of all those people in Las Vegas not make

[00:05:02] Speaker 01:
the public and the government more familiar with bump stocks?

[00:05:08] Speaker 02:
I think I want to answer your question as you asked it.

[00:05:15] Speaker 02:
Did the shooting in Las Vegas make the public more familiar with bump stocks?

[00:05:21] Speaker 02:
And the government.

[00:05:22] Speaker 02:
Yes, and the government.

[00:05:24] Speaker 02:
I believe it certainly did alert the public and the government

[00:05:29] Speaker 02:
to what a bump stock is capable of doing.

[00:05:33] Speaker 02:
I don't think that's the same as explaining, showing the government how a bump stock functions and whether the way a bump stock functions would be in, it would fall under the statutory language of what constitutes a machine gun.

[00:05:53] Speaker 02:
It can't, it wouldn't possibly have said anything about that.

[00:05:56] Speaker 02:
It certainly was an,

[00:05:59] Speaker 01:
I want to run through a bunch of questions, so let me do this and we can get on.

[00:06:05] Speaker 01:
On page 23 of the blue brief, you argued that the Venice line of cases is inapplicable because the question here is only whether the appellants had the right to possess their bump stocks when they acquired title to them, that is, whether they were legal.

[00:06:21] Speaker 01:
Your theory of the law, if the government had not given your client

[00:06:25] Speaker 01:
and an opportunity to surrender or destroy their bump stocks.

[00:06:27] Speaker 01:
If the government had waited for the final rule to become effective and then seized their bump stocks as unlawful, would that still be a compensable taking?

[00:06:37] Speaker 02:
Yes, that would certainly still be a compensable taking.

[00:06:41] Speaker 02:
I think the point is that the public who owned bump stocks, when they purchased the bump stocks, the bump stocks were perfectly legal.

[00:06:50] Speaker 02:
So they acquired the entire bundle of property rights.

[00:06:54] Speaker 02:
when they purchase those stocks, the right to possess, the right to use, the right to dispose.

[00:07:01] Speaker 02:
And it was... Okay.

[00:07:04] Speaker 01:
Wait, wait, wait.

[00:07:05] Speaker 01:
I want to keep your answers pretty short because I have a lot of questions.

[00:07:08] Speaker 01:
I'm sure the other judges... Okay.

[00:07:11] Speaker 01:
On page 24 of the blue brief, you argue that we should align our reasoning with a since-abrogated Ninth Circuit opinion that held that an assault weapons ban was not a compensable taking.

[00:07:22] Speaker 01:
so long as a reasonable use of the regulated property exists.

[00:07:28] Speaker 01:
Now, you'd agree with me that an automatic weapon is less accurate than a single shot, would you not?

[00:07:32] Speaker 02:
I think that's correct.

[00:07:35] Speaker 01:
What's a reasonable use for a fully automatic weapon, other than, say, area denial and combat?

[00:07:44] Speaker 02:
I think that what our brief refers to when it speaks of reasonable use is that regulation that

[00:07:51] Speaker 02:
restricted the use of property would not be a taking.

[00:07:58] Speaker 02:
So for instance, a regulation that restricted the sale of bump stocks would not be a taking.

[00:08:05] Speaker 02:
It would have been legitimate for the government to say, you can't sell these anymore.

[00:08:09] Speaker 02:
That wouldn't take away the entire bundle of rights.

[00:08:13] Speaker 02:
Therefore, it wouldn't be a taking.

[00:08:14] Speaker 01:
Ms.

[00:08:14] Speaker 01:
Gelman, my question was, what's a reasonable use for a fully automatic weapon?

[00:08:20] Speaker 01:
And while you're at it, what's your cyclical rate of fire?

[00:08:23] Speaker 01:
Is it 650 per minute?

[00:08:27] Speaker 02:
I believe it's in the triple digits, but I can't be more precise than that.

[00:08:33] Speaker 02:
But a reasonable use could be a sporting use.

[00:08:37] Speaker 02:
I don't feel I'm not in a position to say what the full range of reasonable uses are.

[00:08:44] Speaker 02:
I think that there could be sporting uses.

[00:08:50] Speaker 01:
Okay.

[00:08:52] Speaker 01:
I fired a fully automatic weapon in combat.

[00:08:56] Speaker 01:
One doesn't fire more than a three-round burst.

[00:08:59] Speaker 01:
You'll burn out the barrel.

[00:09:03] Speaker 01:
On page 30, note eight of the blue brief, you say the final rule required that owners of bump stocks not only destroy their bump stocks, but also dispose, dispossess themselves of any remaining scrap.

[00:09:17] Speaker 01:
Why was that, if you know?

[00:09:22] Speaker 02:
I don't know the answer to that.

[00:09:25] Speaker 01:
Okay, I'll ask the government then.

[00:09:28] Speaker 01:
Let's see.

[00:09:32] Speaker 01:
I have a lot more, but I'll feed them to my brethren.

[00:09:37] Speaker 05:
This is just random.

[00:09:38] Speaker 05:
Can I return you to the discussion of...

[00:09:47] Speaker 05:
forfeiture kinds of matters which as a factual kind of matter may be what Amerisource and Acadia are about and some of the older cases in which as I understand it, a person can acquire title to property, real property, personal property, maybe both,

[00:10:16] Speaker 05:
at a time at which it was perfectly lawful to do so, but that later events can turn future possession into an illegality for which there is no compensable taking such as, but not necessarily limited to, use

[00:10:46] Speaker 05:
even by somebody else in a criminal enterprise, perhaps also it becoming a nuisance.

[00:10:58] Speaker 05:
Why should this case not be like that?

[00:11:09] Speaker 02:
Your Honor, you're correct that those are cases in which the owners of the property had

[00:11:15] Speaker 02:
a property interest before the property was taken from them.

[00:11:20] Speaker 02:
But this is a very narrow line of cases in which the seizure was part of the government's administration of our justice system.

[00:11:31] Speaker 02:
So for instance, in Amerisource, the property, a specific piece of property was seized as evidence in a criminal proceeding, use in the criminal justice procedure.

[00:11:44] Speaker 02:
In the Acadia case, property was seized because it was suspected of being in violation of U.S.

[00:11:51] Speaker 02:
law.

[00:11:53] Speaker 02:
In Cam Alamaz, property was seized because it belongs to a person who is suspected of violating the law.

[00:12:01] Speaker 02:
So this was specific seizure of a specific piece of property for the purpose of the administration of the criminal justice system.

[00:12:11] Speaker 02:
You might even say that in exchange for the benefits of having a working system of justice, we have all implicitly agreed that the state has a right to temporarily take a piece of property that is needed to administer justice that almost inheres in the title of the property that we cede the right to the state to take property from us if it's necessary to continue the justice system.

[00:12:38] Speaker 05:
Right, but that way of putting it, and I'm particularly interested in trying to understand cases, this here in title notion, which has certainly played some role, at least in some of the older Supreme Court cases, like United States against Stowell and whatnot, seemingly having some relation to what

[00:13:05] Speaker 05:
at least used to be talked about as a background police power when that phrase police power might have had a narrower meaning relating to health safety and morals than it has come to mean and why this might not be an instance in which property was acquired when there were statutory prohibitions on machine guns

[00:13:35] Speaker 05:
prohibitions that incorporated a certain measure of evolving implementation choices by the agency.

[00:13:45] Speaker 05:
The agency makes an implementation choice and why should that not have the same effect as a title limitation being triggered as automatically, effectively

[00:14:04] Speaker 05:
transferring the title away from, and the possessory interest, away from the previous acquirer?

[00:14:17] Speaker 02:
Well, I'm going to think about that question for a moment.

[00:14:28] Speaker 02:
I think what your honor is saying is that the existence of the statute banning machine guns should serve as a background principle that inheres in the title to a bump stock.

[00:14:42] Speaker 02:
Is that?

[00:14:43] Speaker 05:
Yes.

[00:14:45] Speaker 05:
I mean, I'm groping, so I'm not trying to be precise here because I think this is an area in which there are a lot of concepts floating around not very well.

[00:14:58] Speaker 05:
organized or related to each other or precisely defined in a variety of case law at different levels.

[00:15:07] Speaker 05:
And so I'm trying to explore one strand here which may fit with, which doesn't include this idea of dormant limitations in hearing and title that

[00:15:27] Speaker 05:
bring to life upon certain events and thereby legitimately allow the destruction or dispossession, as a better general word, of property without that being a compensable taking.

[00:15:47] Speaker 02:
Your Honor, what the Lucas Court said is that there would have to be a pre-existing limitation on the property, an independent

[00:15:56] Speaker 02:
pre-existing limitation on the property.

[00:15:59] Speaker 02:
Now, for the machine gun ban to serve as a limitation on the right of an owner of a bump stock, it would be strange that over the course of some 10 years after bump stocks first began to be manufactured, the ATF issued letters

[00:16:21] Speaker 02:
assuring the public that bump stocks are not machine guns under the language of the statute.

[00:16:27] Speaker 02:
Now, certainly the APF is allowed to change its mind.

[00:16:31] Speaker 02:
And that's exactly what it did in the case of the Akins Accelerator.

[00:16:38] Speaker 02:
There's so much discussion of the Akins Accelerator in the brief.

[00:16:43] Speaker 02:
But where the Akins Accelerator was concerned, the agency issued an interpretive ruling

[00:16:51] Speaker 02:
designating the agent accelerator after the fact as spanned by the machine gun gun.

[00:16:58] Speaker 02:
The significance of the interpretive rule is that an interpretive rule is retrospective.

[00:17:03] Speaker 02:
I think we were talking about background principles, and I wanted to refer to some language in the Lucas decision.

[00:17:10] Speaker 02:
The Lucas court said that a background principle that interiors in the title to property

[00:17:18] Speaker 02:
has to do no more than what could have been achieved by the courts.

[00:17:22] Speaker 02:
I think it's very different in this instance.

[00:17:24] Speaker 02:
Before the final rule was issued, there was no court that could have taken the bump stocks away from the people who owned them.

[00:17:36] Speaker 05:
The final rule being... Well, can I just... I mean, why is that?

[00:17:41] Speaker 05:
I mean, why couldn't a court, if the ATF had not been in the picture,

[00:17:47] Speaker 05:
have concluded that on its own application of, you know, the definitional language of in the statute that bump stocks were in fact covered by the statute.

[00:18:05] Speaker 02:
Well, the ATF had issued letters for the 10 years prior to the final rule.

[00:18:10] Speaker 02:
Ms.

[00:18:10] Speaker 03:
Gelman, this is Judge Chen.

[00:18:13] Speaker 03:
Do those classification letters have the force and effect of law?

[00:18:17] Speaker 02:
No, they don't.

[00:18:18] Speaker 02:
They don't.

[00:18:20] Speaker 02:
I would look to what the DC Circuit has decided in the Gatiss case about the nature of the final rule being a legislative rule.

[00:18:29] Speaker 02:
What the DC Circuit did was analyze the language in the rule itself and the circumstances under which the rule was adopted to conclude that the agency intended this to be a rule that would have the force of law and would have prospective effects only.

[00:18:47] Speaker 02:
The language in the rule itself is very clear that buck stocks were not illegal before the final rule was passed, that it would have only perspective effect.

[00:19:01] Speaker 02:
And the rule itself speaks of Chevron deference, which is the standard that is applied to legislative rules.

[00:19:11] Speaker 05:
And it invokes... I'm sorry.

[00:19:14] Speaker 05:
Does the rule say besides invoking the Chevron

[00:19:17] Speaker 05:
framework, we are acting and defending and invoking Chevron Step 2, or does it say, does it ever say, we actually think that this statutory language is ambiguous, so Chevron Step 1 doesn't resolve the matter, we therefore have Chevron Step 2 authority, which we are exercising.

[00:19:41] Speaker 02:
It describes both steps of the Chevron treatment.

[00:19:45] Speaker 02:
In detail.

[00:19:46] Speaker 03:
I'm sorry, is this in the final rule or is this the DC Circuit opinion you're referring to?

[00:19:51] Speaker 02:
This is what the DC Circuit's discussion of what's in the final rule.

[00:19:58] Speaker 05:
I'm sorry, but I didn't quite hear an answer to my question and I don't have the Federal Register materials with me.

[00:20:08] Speaker 05:
In the ATF's announcement of its rule, does it say,

[00:20:15] Speaker 05:
The statute is ambiguous for Chevron purposes and we are exercising our interpretive authority or implementation authority under Chevron step two.

[00:20:34] Speaker 02:
I can't find a place in the rule itself where the Chevron rule is discussed.

[00:20:41] Speaker 02:
But the Chevron deference is discussed both steps of Chevron deference are discussed in the rule itself.

[00:20:50] Speaker 02:
This is part of why the DC Circuit concluded as it did that this was a legislative rule in part because the rule itself invokes Chevron deference and discussed in depth both steps of the Chevron deference.

[00:21:03] Speaker 02:
But there were other reasons as well.

[00:21:05] Speaker 02:
I mean, a specific language of the rule

[00:21:08] Speaker 02:
denying that the ownership of bump stocks was illegal until the rule was passed, and the invocation of the agency's legislative authority under the statutes.

[00:21:21] Speaker 02:
So for a plethora of reasons, the D.C.

[00:21:24] Speaker 02:
Circuit concluded that this was unequivocally a legislative rule and not an interpretive rule.

[00:21:32] Speaker 02:
And the significance of that, of course, is that bump stocks were fully legal.

[00:21:36] Speaker 02:
when everyone who owns one before the rule was passed under the law, under the statute banning machine guns, that statute did not reach bump stocks until the final rule was issued in its legislative capacity.

[00:21:55] Speaker 02:
That's tremendously significant for purposes of taking jurisprudence because it means that everyone who owned a bump stock had the full bundle of rights

[00:22:05] Speaker 02:
in their property.

[00:22:07] Speaker 02:
And it was only the final rule itself that took all of those rights away from the people who had to either destroy their property or abandon it at an ATF office.

[00:22:19] Speaker 02:
That's why in our brief, we've spent so much time discussing the significance of the legislative rule and explaining the difference between the legislative rule with respect to bump stocks and the treatment of the Akins accelerator.

[00:22:32] Speaker 02:
because it in part explains the difference in the outcomes of these cases.

[00:22:37] Speaker 02:
Ms.

[00:22:37] Speaker 03:
Gilman, this is Judge Chen.

[00:22:39] Speaker 03:
I'm trying to understand, I understand your pivot point between a so-called legislative rule and an interpretive rule, and I'm trying to think through why should that matter.

[00:22:51] Speaker 03:
The statute that banning machine guns authorizes the government to enforce

[00:23:02] Speaker 03:
and also interpret that statute to ensure that devices that can convert a weapon into a machine gun are likewise outlawed.

[00:23:14] Speaker 03:
So I guess I'm trying to understand if that's all the government is doing, then the government was authorized in making that interpretation, whether you want to call it a legislative rule or an interpretive rule.

[00:23:31] Speaker 03:
And for purposes of this appeal, we have to assume that that regulation is in fact valid.

[00:23:38] Speaker 02:
Your Honor, I think that's absolutely right.

[00:23:40] Speaker 02:
And that would be a very important point if our lawsuit were challenging the validity of the rule.

[00:23:45] Speaker 02:
But it's not challenging the validity of the rule.

[00:23:48] Speaker 02:
Our lawsuit is only about whether this is a taking, about whether the owners of bump stocks had property rights that were protected, that were taken by the final rule.

[00:23:58] Speaker 02:
And so for that purpose,

[00:24:00] Speaker 02:
I think the distinction between a legislative rule and an interpretive rule is highly significant, because under one scenario, the people who purchased bump stocks acquired property rights when they did so, and under the other scenario, they couldn't.

[00:24:15] Speaker 02:
Yes.

[00:24:15] Speaker 01:
Ms.

[00:24:15] Speaker 01:
Gelman?

[00:24:17] Speaker 01:
Yes.

[00:24:17] Speaker 01:
Can you hear me?

[00:24:19] Speaker 02:
Yes, I can.

[00:24:20] Speaker 01:
This is Judge Wallach.

[00:24:21] Speaker 01:
I have a couple more questions for you, and your time's running low.

[00:24:25] Speaker 01:
OK.

[00:24:26] Speaker 01:
On page 18 of the red break,

[00:24:29] Speaker 01:
notes that in addressing a similar prohibition on bump stocks, the District Court of Maryland emphasized that the principle that the government may ban hazardous materials without compensation is, quote, consistent with the long history of state laws that criminalize, ban, or otherwise restrict items deemed hazardous under the police power, citing the regulation of machine guns, explosive devices, controlled substances,

[00:24:57] Speaker 01:
child pornography, fireworks, and lead-based paint.

[00:25:01] Speaker 01:
That's in Maryland Shell issue versus Hogan.

[00:25:07] Speaker 01:
When the government criminalized the possession of child pornography quite a while ago now, did it have to, under your theory, pay compensation to the pornographers who possessed it before it was illegal?

[00:25:24] Speaker 02:
Well, there's a couple of aspects to that question.

[00:25:31] Speaker 02:
First of all, I don't know of any instance in which anyone did challenge as a taking any sort of limitation, criminalization of child pornography.

[00:25:41] Speaker 02:
I think this is a question that would have to be resolved by looking at the state laws, in effect,

[00:25:50] Speaker 02:
and common law and whether this is regarded as a nuisance under common law.

[00:25:55] Speaker 02:
Because that, of course, would be a background principle that would limit anyone's property rights in anything, including something that would be deemed child pornography.

[00:26:06] Speaker 01:
Would a machine gun be a nuisance?

[00:26:11] Speaker 02:
I think the government has admitted in its brief that bump stocks, they found no law to indicate that bump stocks are a nuisance.

[00:26:19] Speaker 02:
I don't think machine guns could be a nuisance either.

[00:26:22] Speaker 02:
Machine guns, of course, were grandfathered in to the ban on machine guns.

[00:26:26] Speaker 02:
Many of them are still legal and are owned by people.

[00:26:29] Speaker 02:
So that in itself, I think, suggests that it's not a nuisance.

[00:26:32] Speaker 02:
I don't think property itself is often a nuisance.

[00:26:37] Speaker 02:
I think it's ordinarily a use of property that's a nuisance.

[00:26:41] Speaker 01:
So my answer, I think... One last question, please.

[00:26:45] Speaker 01:
We've exceeded your time, but I'll let you keep your five minutes.

[00:26:50] Speaker 01:
On page 13 of the green brief, the Amikian support of the government say that RW Arms engaged in bump stock sales even after the ATF announced its plans to adopt the final rule, displaying a countdown clock on its website and sending promotional emails pointing to the impending ban.

[00:27:14] Speaker 01:
Is that correct?

[00:27:16] Speaker 02:
I believe it's correct that they did sell bump stocks before the rule was announced.

[00:27:23] Speaker 02:
I find that the amicus brief discussion of this interesting because I think it points to something rather different than the amicus brief that identifies.

[00:27:34] Speaker 02:
Ms.

[00:27:34] Speaker 02:
Gelman.

[00:27:35] Speaker 01:
Yes.

[00:27:36] Speaker 01:
Ms.

[00:27:36] Speaker 01:
Gelman.

[00:27:37] Speaker 01:
Yes, I'm listening.

[00:27:40] Speaker 01:
Just tell me, did they display a countdown clock and send promotional emails?

[00:27:45] Speaker 01:
That was my question.

[00:27:46] Speaker 02:
Yes, I believe they did.

[00:27:48] Speaker 01:
Okay, thank you.

[00:27:49] Speaker 01:
Any other questions from the other judges for now?

[00:27:55] Speaker 04:
No.

[00:27:56] Speaker 01:
Okay, then let's hear from the government.

[00:28:01] Speaker 04:
Thank you, Your Honor.

[00:28:01] Speaker 04:
This is Kenneth Thinser.

[00:28:02] Speaker 04:
May it please the court?

[00:28:04] Speaker 04:
I'd like to go directly to some of the answers that were given to Judge Toronto's and Judge Chen's questions about the bundle of rights.

[00:28:13] Speaker 04:
Because, Your Honor, there are no way that they could have gotten the full bundle of rights here that they claim.

[00:28:20] Speaker 04:
The plaintiff's never owned the property rights that are at the basis of their takings claim.

[00:28:25] Speaker 04:
For the first, to start with, and this touches on what the court asked counsel, they have no property interest in the ATF's letters.

[00:28:33] Speaker 04:
The letters offered a safe harbor, but they were described as ATF official position, and counsel has acknowledged

[00:28:40] Speaker 04:
that they could change, and they could not have had a property interest in those.

[00:28:45] Speaker 05:
I'm sorry.

[00:28:47] Speaker 05:
I don't even understand.

[00:28:48] Speaker 05:
A property right in the letters, the asserted property right is in possession of this equipment.

[00:28:57] Speaker 04:
Yes, Your Honor.

[00:28:58] Speaker 04:
They could not have had those... Let me explain it better, Your Honor, more clearly.

[00:29:04] Speaker 04:
Their property interests could not have been expanded or protected by those letters

[00:29:09] Speaker 04:
Those letters were subject to change, as APF said, and so those could not have created any of the sticks in the bundles of rights, which meant that they could have been withdrawn at any time without them being taken.

[00:29:22] Speaker 04:
And the withdrawal of those letters, two things happened.

[00:29:26] Speaker 04:
Those letters were withdrawn and then a new rule was put in place, but the withdrawal of those letters alone,

[00:29:33] Speaker 04:
less bump stocks subject to the always existing ban on machine guns.

[00:29:39] Speaker 03:
But Mr. Dinser, this is Judge Chen.

[00:29:42] Speaker 03:
I'm trying to understand what is the purpose of the letters because right now the way you're characterizing them, they almost sound like a mirage that nobody should have relied on.

[00:29:54] Speaker 03:
And I was under the impression that the letters are something that

[00:29:59] Speaker 03:
these owners, these requesters for classification rulings are entitled to rely on them.

[00:30:04] Speaker 03:
I understand you reserve the right to change your rulings on these matters, but nevertheless, if I were to receive a clearance letter from ATF and that the bump stocks are in fact legal and not outlawed by the statute, I don't know

[00:30:28] Speaker 03:
I think I could make an argument that now I've detrimentally relied on that classification letter that was reaffirmed over and over again for a decade and only to have the rug pulled out from me a decade later.

[00:30:43] Speaker 04:
Respectfully, Your Honor, because those letters

[00:30:48] Speaker 03:
Not only did the ATF handbook say that the letters were subject to change, but... Do the letters precisely say, oh, and we hereby reserve the right to potentially change our view of this matter?

[00:31:04] Speaker 04:
Did it say something like that?

[00:31:06] Speaker 04:
The letters didn't, but in the National Firearms Handbook where it authorizes the letters,

[00:31:12] Speaker 04:
It says, and I'm quoting here, Your Honor, classifications are subject to change if later determined to be erroneous or impacted by subsequent changes in the law or regulation.

[00:31:21] Speaker 05:
What are you just citing?

[00:31:23] Speaker 05:
Do you have a cite for what you just said?

[00:31:26] Speaker 04:
I do, Your Honor.

[00:31:26] Speaker 04:
That's the National Firearms Handbook that is used by ATF.

[00:31:31] Speaker 04:
That is the ATF handbook.

[00:31:33] Speaker 04:
That is the basis of their saying, we're willing to give these letters out.

[00:31:38] Speaker 04:
So they let people know.

[00:31:40] Speaker 04:
And then, of course, we had the example of Akins.

[00:31:42] Speaker 04:
It did, in fact, change.

[00:31:45] Speaker 04:
And all I'm saying is that the fact that these

[00:31:48] Speaker 04:
These letters could not have given them bundles, sticks in the bundles and vice.

[00:31:51] Speaker 04:
When they bought their, they understood that they weren't going to be prosecuted, that ATF's take on it was that these weren't illegal, but if ATF had tried to prosecute them under the machine gun ban, these would have been of course thrown up and of course ATF or the DOJ or whoever tried to prosecute them would have lost.

[00:32:10] Speaker 04:
But the withdrawal of these letters,

[00:32:12] Speaker 04:
That itself can't be taken under cases like Mitchell Arms.

[00:32:17] Speaker 04:
Those are just policy statements.

[00:32:19] Speaker 04:
So what you end up with is, and this gets to Judge Toronto's question about in-nearings, what in-neared into their ownership of these bump stocks was the ban on machine guns.

[00:32:31] Speaker 04:
Okay, that was done in 1986, preceded all of these bumps off.

[00:32:36] Speaker 04:
And what it means is that their bundle of rights, and they did have a bundle of sticks in their bundle, but they were always subject to the prohibition of machine guns.

[00:32:45] Speaker 05:
So can you address how what you just said fits with the DC Circuit's reasoning, and was it Gueras is the name of the case?

[00:32:59] Speaker 05:
that said the new rule was legislative versus interpretive.

[00:33:05] Speaker 05:
I'm not sure that's the most significant thing in what the D.C.

[00:33:09] Speaker 05:
Circuit said, but it made a rather large point of saying it was really quite important that possession before the date of the rule not be declared illegal.

[00:33:26] Speaker 04:
Yes, Your Honor.

[00:33:28] Speaker 04:
So, I mean, there's a lot to your questions.

[00:33:30] Speaker 04:
I want to make sure I hit it all.

[00:33:31] Speaker 04:
They did make this determination about legislative versus interpretive.

[00:33:37] Speaker 04:
We disagree both with the plaintiff's citing of this as relevant to the analysis of taking or the analysis of the police power and whether that can be brought into play.

[00:33:48] Speaker 04:
We don't think it has any relevance.

[00:33:49] Speaker 04:
And on top of that, we believe that this was properly deemed interpretive.

[00:33:55] Speaker 05:
What... Let's assume we're not going to disagree with the D.C.

[00:33:58] Speaker 05:
Circuit.

[00:33:59] Speaker 05:
Okay.

[00:34:01] Speaker 04:
But even if you don't disagree with the D.C.

[00:34:05] Speaker 04:
Circuit, what the D.C.

[00:34:07] Speaker 04:
Circuit did was it cited National Mine Association, which had this quote, those general descriptions do not describe tidy categories and are often of little help in particular cases.

[00:34:17] Speaker 04:
So the point being, this distinction, legislative versus interpretive, it's never been used in Takings Law.

[00:34:23] Speaker 04:
The plaintiffs have never cited a case that has used this distinction in any way.

[00:34:27] Speaker 04:
And we recommend, especially since it doesn't provide nice, tidy distinction, that it not be transported over here where it really provides no use.

[00:34:36] Speaker 05:
Now, what the... Well, here I guess is another attempt imprecisely to try to express my worry.

[00:34:46] Speaker 05:
I think that there's rather a lot to this notion of a limitation in hearing and title.

[00:34:52] Speaker 05:
But that immediately raises the question whether the event that triggers the possessory illegality is an event that changes or merely applies

[00:35:13] Speaker 05:
a legal standard that adhered in title.

[00:35:17] Speaker 05:
And that makes me think that maybe it is rather important whether what ATF did here was legislative or interpretive or the like.

[00:35:30] Speaker 05:
And, you know, to say this has never been used in taking law, I will say is simply not helpful to me at the moment in trying to figure out how to make conceptual sense out of this.

[00:35:40] Speaker 05:
So I'm really interested in help

[00:35:42] Speaker 05:
in making conceptual sense.

[00:35:45] Speaker 04:
OK, and I think I can do that, Your Honor.

[00:35:47] Speaker 04:
Let's imagine for a second that ATF withdraws these letters and doesn't pass this rule.

[00:35:53] Speaker 04:
So what we have then is we have a prohibition, a statutory prohibition on machine guns.

[00:35:59] Speaker 04:
And so then we have the potential that ATF or DOJ or some federal officer arrests somebody for having a bump stock and says, this should fall under the machine gun statute.

[00:36:12] Speaker 04:
And the policy statements or the letters are no longer in existence.

[00:36:16] Speaker 04:
And they take this person into court and prosecute them.

[00:36:19] Speaker 04:
And what we have from the plaintiffs, and they admit on page 17 of the reply brief, that enforcing the law is not a taking.

[00:36:26] Speaker 04:
So putting aside the new rule, it would be OK under the plaintiff's acknowledgment

[00:36:33] Speaker 04:
If we withdrew the letter, which did not create a profit interest, and we prosecuted these people without any notice, and it wouldn't have been particularly fair, but we prosecuted these people without any notice, and we just prosecuted them under the statute, that couldn't be a taking, because the statute has existed since 1986.

[00:36:49] Speaker 04:
That's inuring into this.

[00:36:51] Speaker 04:
So that is, when we talk about the bundle, and the sticks that they own, they don't own the bundle that protects them from being prosecuted under that statute.

[00:37:02] Speaker 04:
They could have, and so they could have been found guilty.

[00:37:05] Speaker 04:
All the rule did was interpret the statute and give people to be fair notice about when this, you know, how this interpretation was going to be applied.

[00:37:15] Speaker 05:
So, so that, I mean, do you think, do you think that the analysis that you just articulated would change if in that prosecution, the court said that as applied, this was void for vagueness?

[00:37:30] Speaker 05:
I'm sorry, as applied what?

[00:37:32] Speaker 05:
I missed the last word, Your Honor.

[00:37:33] Speaker 05:
As applied what?

[00:37:34] Speaker 05:
That the firearm statute by itself was void for vagueness as applied?

[00:37:43] Speaker 05:
Or that because of inherent uncertainties, let's call them ambiguities, I'm not sure that matters, it would be interpreted by reference to the rule of lenity not to apply

[00:38:00] Speaker 04:
I don't think it would matter, Your Honor, because the real question would be this.

[00:38:05] Speaker 04:
If the government started prosecuting people who owned bump stocks criminally, the value of those bump stocks would be presumably, I mean, if the government started these prosecutions, presumably the value would go close to or to zero.

[00:38:22] Speaker 05:
Well, unless the void for Reagan is a rule of lenity, rulings, you know, stock

[00:38:29] Speaker 05:
in which case the value would go right back up.

[00:38:32] Speaker 04:
Um, I, I, I, I, I guess if, if that was ultimately, you know, adopted throughout the country, but, um, but I, I, I don't think so, your honor.

[00:38:42] Speaker 04:
I think that, I mean, ultimately the, the, the, there's two ways that I, I, I think that that statute as written in New Earth, its interpretation can be limited.

[00:38:56] Speaker 04:
in which case its effect on their property rights could be limited.

[00:39:00] Speaker 04:
And in that sense, I guess I would have to acknowledge with the court that, but whatever it was,

[00:39:07] Speaker 04:
They didn't have the full set of sticks in the bundle.

[00:39:10] Speaker 04:
They had something that was limited by the existing.

[00:39:13] Speaker 04:
And we have to recognize that people who were buying bump stocks were buying them so that they could stimulate machine guns.

[00:39:21] Speaker 04:
I mean, there's no other use for these things other than to get as close to a machine gun as you possibly can.

[00:39:28] Speaker 04:
the Akins accelerator was already held to be illegal because it had a spring and tried to stimulate a machine gun.

[00:39:35] Speaker 04:
And so the reality is that interpreting these as that should not have been a stretch.

[00:39:43] Speaker 04:
So the new regulation, all that did was interpret and say that APS is going to interpret the

[00:39:56] Speaker 04:
the automatic and the trigger function to include bump stocks.

[00:40:02] Speaker 04:
And that was an interpretive process.

[00:40:04] Speaker 04:
We believe that was an interpretive process.

[00:40:07] Speaker 05:
And do you have a, can you answer the question?

[00:40:11] Speaker 05:
I think I asked Council on the other side about whether ATF in its final rule, what exactly it said about Chevron step one and Chevron step two and in particular did it say

[00:40:25] Speaker 05:
The statute is ambiguous under Chevron step one, and therefore we are exercising authority under step two.

[00:40:36] Speaker 04:
My understanding is, Your Honor, is that it mentions Chevron.

[00:40:39] Speaker 04:
It does not indicate step two.

[00:40:41] Speaker 04:
And what it announces, and I'm quoting here, is the, quote, best interpretation, end quote, of the statutory items.

[00:40:49] Speaker 04:
Based on a quick look, that's my understanding of what the regulation did.

[00:40:55] Speaker 05:
Okay, thanks.

[00:40:57] Speaker 04:
And in fact, the plaintiff's site gives him wine where the court offered this statement.

[00:41:02] Speaker 04:
If you had an expression in a statute such as interurban railway, the query might come up as to what is an interurban railway.

[00:41:10] Speaker 04:
A particular agency may adopt a rule defining an interurban railway that, in a sense, may be called an interpretive rule.

[00:41:17] Speaker 04:
And although the rule here did other things as well, the core of the rule here is they interpreted elements of what a machine gun is.

[00:41:27] Speaker 04:
And so with that, I'm going to move on to police power and talk about why the police power here deceit separate from the property interest issues.

[00:41:34] Speaker 04:
The police power deceits the plaintiff's takings claim.

[00:41:38] Speaker 05:
Can I just pose the following concern I have about that?

[00:41:47] Speaker 05:
In Kelo, building on Midkis and whatever Midkis built on, I think the Supreme Court has said, we now understand the term police power to be essentially the same as public use, which is essentially the same as public purpose.

[00:42:11] Speaker 05:
If that's right, then what

[00:42:16] Speaker 05:
All nine justices in Kelo agreed with, which is that something that is, that an action that is a taking that is not for a public use is actually illegal whether or not compensation, unconstitutional, whether or not compensation is paid.

[00:42:41] Speaker 05:
So how does this notion of police power, if it is,

[00:42:46] Speaker 05:
essentially equivalent to public purpose, serve as a cabining of the government's authority to dispossess people of property without having to pay?

[00:43:08] Speaker 04:
I think the Bennis case and other Supreme Court cases have been clear that

[00:43:15] Speaker 04:
And there's no question that Hilo describes the limitation that public use provides to the Fifth Amendment.

[00:43:22] Speaker 04:
But that case was not a case about the limitation of police power.

[00:43:28] Speaker 04:
It was a question of what happens if you have eminent domain and you don't have public use.

[00:43:34] Speaker 04:
The benefit case explains eminent domain is only one way.

[00:43:39] Speaker 04:
that the government can acquire or, in this case, order the destruction, but acquire individual, in that case it was a car, acquire individual's property.

[00:43:50] Speaker 04:
And if the property is being acquired not under eminent domain, but under police power, then the limits under eminent domain don't even apply.

[00:44:02] Speaker 05:
Right, but that I guess is what is really puzzling.

[00:44:08] Speaker 05:
Venice and I think the Amerisource at Acadia are cases that are either about something in here's in title or about forfeiture, customs cases where

[00:44:31] Speaker 05:
you know, there are background principles that make possession illegal and if you're a part of one of those background principles is, you know, seizing property for evidentiary purposes in a criminal proceeding and that would be kind of a temporary one.

[00:44:49] Speaker 05:
The customs one is long-standing background, kind of border control.

[00:44:54] Speaker 05:
What I am confused about is

[00:45:00] Speaker 05:
how it makes any sense as a constitutional matter to say the police power, which at the federal level is, you know, the exercise of the commerce power or some other, um, delegated constitutionally delegated authority for the public good.

[00:45:14] Speaker 05:
Um, how that doesn't, how one could say that whenever Congress or an authorized agent of Congress does something for that incredibly broad range of purposes,

[00:45:27] Speaker 05:
It doesn't have to pay for property as long as it doesn't say, we're not using the eminent domain power.

[00:45:33] Speaker 05:
Oh, that's right.

[00:45:34] Speaker 05:
It doesn't say we're using the eminent domain power.

[00:45:38] Speaker 04:
I think, so if it was just the label, Your Honor, that would be tremendously problematic.

[00:45:44] Speaker 04:
I agree.

[00:45:44] Speaker 04:
So I think that there's two things.

[00:45:48] Speaker 04:
There's the question of public use.

[00:45:50] Speaker 04:
So it is the public, I mean, this- Right, but assume for these purposes,

[00:45:56] Speaker 05:
that dispossession encompasses both seizure and transfer, either to the government or to some private party, or destruction.

[00:46:06] Speaker 05:
And I know the government keeps wanting to resist that, but just assume for the purposes, because I think that that's pretty much right under General Motors.

[00:46:15] Speaker 04:
I think, so there is that question, whether this was a physical taking or whether this was regulatory.

[00:46:20] Speaker 04:
But putting that aside, the next question is whether it's for destruction or if this case would be fundamentally different, if the government demanded these bump stocks and then distributed them to the army, right?

[00:46:34] Speaker 04:
Then it would be for public use as opposed to getting them off the street.

[00:46:38] Speaker 04:
There's a fundamental difference between those two things, which is recognized in the Horn case.

[00:46:45] Speaker 04:
So that's the first question.

[00:46:48] Speaker 05:
And so what does Horne say about you must destroy this versus you must give it to us?

[00:46:53] Speaker 04:
No, no, it says that it recognizes, it says in acknowledging the variation in treatment between regulatory and physical taking when the result might be the same, it says a physical taking of raisins and a regulatory limit on production may have the same economic impact on the product.

[00:47:09] Speaker 05:
Right, but the difference between hand me your property and destroy your property

[00:47:15] Speaker 05:
Um, is really that one of them is a physical taking and one of them is not?

[00:47:21] Speaker 04:
I, this court actually addressed that in Rose Acre.

[00:47:24] Speaker 04:
And, and in, in that case, which mostly dealt with eggs was also the question of whether the, the, um, they want, the government wanted to test the chickens in the houses, whether they had salmon.

[00:47:35] Speaker 05:
This is that, that single passing sentence, citing a case that wasn't actually about that.

[00:47:40] Speaker 05:
Is that what you're referring to?

[00:47:42] Speaker 04:
I don't believe so.

[00:47:43] Speaker 04:
I think this was an analysis by the court.

[00:47:45] Speaker 04:
The court said, and the plaintiff said, look, they're demanding our chickens so that they can kill them and test them for salmonella.

[00:47:52] Speaker 04:
And that's a physical taking.

[00:47:53] Speaker 04:
And what the Rose Acre Court said, what is clear is that had the regulations required Rose Acre itself to kill and test the hens, no per se taking could be fast.

[00:48:01] Speaker 04:
Right.

[00:48:02] Speaker 05:
That's the sentence I'm talking about.

[00:48:05] Speaker 04:
Yeah.

[00:48:05] Speaker 05:
And then it cites a case that doesn't support that sentence.

[00:48:08] Speaker 05:
So I'm not quite sure how much force to give.

[00:48:10] Speaker 05:
to give to that, you know, facially hypothetical statement without a supporting case.

[00:48:19] Speaker 04:
Well, let me go deeper, Your Honor, on the distinction.

[00:48:22] Speaker 04:
We believe, because the truth is, public police power is used in a variety of areas.

[00:48:29] Speaker 04:
We believe that there are certain core police powers where there are, and I think Lucas, they don't use this term, but Lucas,

[00:48:38] Speaker 04:
indicates that there are some things that there is a public benefit, even if it's incidental or... But these core police powers, which are the ability to outlaw something, the ability to protect borders, there's no economic benefit.

[00:48:55] Speaker 04:
It's not... You're not getting the benefit of... Nobody's getting the financial benefit.

[00:49:00] Speaker 04:
When Mr. Kamenoma's laptop was removed from him and ultimately broken and the files corrupted,

[00:49:08] Speaker 04:
There was no other person who was saying, oh, now I've got this economic benefit.

[00:49:13] Speaker 04:
There was no transfer of that.

[00:49:15] Speaker 04:
That is at the core.

[00:49:16] Speaker 04:
When you start looking at core police powers, the one, so in our mind, the police power can be used in two ways, and considered in two ways.

[00:49:25] Speaker 04:
In the core police power items, it ends the analysis at that point.

[00:49:30] Speaker 04:
And in Kamel Maas, in questions about drugs, about bringing in

[00:49:37] Speaker 04:
goods that are forgery, those are our core.

[00:49:42] Speaker 04:
And that just ends the analysis.

[00:49:44] Speaker 04:
In non-core areas where, as you said, it can come up, you know, you can label anything, police power, in non-core areas, then it should drop down to a 10-central analysis.

[00:49:55] Speaker 04:
And the character of the government

[00:49:57] Speaker 04:
taking and the investment backed expectations, these things will look at the police power and the nature of these things.

[00:50:03] Speaker 05:
So help me, try to define this better.

[00:50:06] Speaker 05:
If there's some class of government compelled destruction orders or other possession is a crime pronouncements that you think are not

[00:50:26] Speaker 05:
do not constitute takings at all.

[00:50:32] Speaker 05:
Just maybe I didn't hear it, but define this better for me.

[00:50:38] Speaker 04:
And this is the distinction that Venice came up with, where they said, basically, there's no eminent domain being used here, so we're not concerned.

[00:50:48] Speaker 04:
If there's no economic benefit to

[00:50:54] Speaker 04:
the government, either in acquiring the goods or, for example, in the Lucas case, if you stop somebody from building anything on their property, we're going to assume that there's an economic benefit to the neighbors, to avoiding erosion, to all these things.

[00:51:09] Speaker 04:
If there's no economic, when ecstasy was banned, when lawn darts were banned, when child pornography was banned, there was not an economic benefit to an identified class.

[00:51:21] Speaker 04:
You could come up with some hypothetical, but that wasn't the point of it.

[00:51:24] Speaker 04:
The point was not to create an economic benefit.

[00:51:26] Speaker 04:
On the other hand, if you regulate somebody's apartment building so that people get to low income housing, the tenants get to stay there beyond what they were contractually allowed to.

[00:51:43] Speaker 04:
the situation in San Diego Gardens, then that's, I mean, that comes from the commerce clause, but that's the kind of thing that needs to go to pencentral analysis.

[00:51:53] Speaker 04:
And in fact, Roseacre, which even though it had potential of diseased eggs, or the Yancey case, which had, you know, chickens or turkeys that were potentially diseased, those cases went to pencentral analysis.

[00:52:06] Speaker 04:
So the, and I'm not saying if there's this wonderful bright line I can draw for the court, but what I can say is that the cases that are easiest are the cases and what are core are, something's being banned, something's being outlawed.

[00:52:21] Speaker 04:
It's not for the financial benefit of some group, it's to protect the health, the safety and the like.

[00:52:28] Speaker 04:
of the citizenry and that's why we have this police power that is separate from eminent domains.

[00:52:36] Speaker 04:
It has nothing to do with eminent domains.

[00:52:38] Speaker 04:
Yes, Your Honor.

[00:52:42] Speaker 01:
I have a few questions for you.

[00:52:44] Speaker 01:
I want to start with what I asked Ms.

[00:52:48] Speaker 01:
Gelman.

[00:52:50] Speaker 01:
Why did the ATF require dispossession of remaining scrap?

[00:52:57] Speaker 04:
I don't know that my interpretation of that has always been that we didn't want people, they didn't want people taking things apart and keeping the pieces so that they could be put back together.

[00:53:09] Speaker 01:
And so that, I mean, unless you're going to... So destruction would be just taking it apart?

[00:53:19] Speaker 04:
I think that my interpretation has always been

[00:53:23] Speaker 04:
And I would have to go back and check to see if they've defined these terms, is that they didn't want to get into a question of how is this sufficiently destroyed enough and the like.

[00:53:35] Speaker 04:
And by asking people to get rid of the scrap, that

[00:53:39] Speaker 04:
prevents them from, you know, keeping it one, because under the definition of machine gun, you can't keep something sort of one step away from being a machine gun or machine gun part.

[00:53:49] Speaker 04:
That's also illegal.

[00:53:51] Speaker 04:
And so I took this to be, to making sure that people weren't keeping this one step away from being a machine gun part or being a bump stock.

[00:54:00] Speaker 01:
I want to turn, and this is what piqued my interest, go to your discussion of police powers and the examples you gave.

[00:54:08] Speaker 01:
Let me give you a hypothetical.

[00:54:11] Speaker 01:
Suppose the FDA approved a drug for a particular important medical use, and its patients are using it and it's keeping them alive.

[00:54:22] Speaker 01:
But some years later, the drug starts being used for a very dangerous recreational purpose.

[00:54:31] Speaker 01:
Could the FDA ban it entirely despite the continuing reliance of patients on the drug to keep them alive?

[00:54:40] Speaker 04:
If you're asking me, obviously, I can't answer that from an FDA point of view, but let's assume that they can, that they have the legal authority to ban it, then if your question is, would that result in it taking?

[00:54:54] Speaker 04:
Yes.

[00:54:56] Speaker 04:
That would not, Your Honor.

[00:55:02] Speaker 04:
I mean, one of presumably one of the responsibilities of the SBA is to say, you know, these drugs are safe and these drugs are not.

[00:55:10] Speaker 04:
And if they determine that a drug is not safe, then that falls within core.

[00:55:15] Speaker 04:
I mean, there's no financial benefit that somebody is going to get.

[00:55:19] Speaker 04:
It falls within core police powers.

[00:55:22] Speaker 04:
They ban it.

[00:55:23] Speaker 04:
It's not an eminent domain thing.

[00:55:25] Speaker 04:
And now the contract.

[00:55:28] Speaker 04:
Yeah, please, your honor.

[00:55:30] Speaker 01:
Is there any liability on the part of the government when those patients die?

[00:55:35] Speaker 04:
I'm not an expert in the Federal Tort Claim Act, but I would guess that there is not.

[00:55:43] Speaker 04:
I would guess that this would be the type of thing where a regulator has to make very difficult decisions about the health of the community and whether to authorize a drug or whether to ban it based on the big picture.

[00:56:00] Speaker 04:
But regardless of whether that liability is, which I don't believe it does, the people who have it in their bathrooms and on their shelves or their stores, if it's banned for all purposes, then it would not be a take.

[00:56:16] Speaker 04:
They would be obligated to flush it down the toilet or whatever.

[00:56:21] Speaker 01:
Ms.

[00:56:22] Speaker 01:
Gilman referenced that straight up machine guns,

[00:56:30] Speaker 01:
An M250 caliber can be possessed if there's a license.

[00:56:39] Speaker 01:
Am I correct that there's no licensing exception for bump stocks because they're all produced after 86?

[00:56:47] Speaker 04:
That is my understanding, Your Honor, yes, that they are all banned.

[00:56:50] Speaker 04:
I mean, the bump stocks that are defined in the statute, which are effectively all that I'm aware of, are banned and there's no licensing available.

[00:57:00] Speaker 01:
Thank you.

[00:57:02] Speaker 04:
Go ahead.

[00:57:05] Speaker 04:
Turning to the, one last comment about the police power.

[00:57:13] Speaker 04:
That even if you end up saying it's not a core police power, it should always end up in a pen central analysis.

[00:57:22] Speaker 04:
and not in a per se analysis because of the nature of the police power.

[00:57:27] Speaker 04:
And so the Lucas presumption does not apply here.

[00:57:31] Speaker 04:
Lucas was a case where it was because it was physical property, what the court held was for physical, for real property, I'm sorry, it was real property.

[00:57:40] Speaker 04:
For real property, if you ban it 100%, it has used 100% of economic value, then we're going to assume that there's some economic benefits flowing to the government and or to the public.

[00:57:52] Speaker 04:
And we're going to make that a per se taking.

[00:57:58] Speaker 05:
I think I may be just asking you the same question, but either this concept of core police power or this concept of economic benefit lying behind a government action, did either of those concepts appear in Supreme Court case law?

[00:58:19] Speaker 04:
No, Your Honor.

[00:58:21] Speaker 04:
The concept of the court's police power, basically going through these cases and trying to understand what the court is doing here.

[00:58:30] Speaker 04:
You do have, like in the Acadia case, you have the court recognizing that certain exercises of police power, quote, that they have repeatedly been treated

[00:58:40] Speaker 04:
as legitimate even in the absence of compensation.

[00:58:43] Speaker 04:
So this court has recognized that there is this subset, this group of police powers that is enough to, even without compensation at all, you're done.

[00:58:56] Speaker 04:
And then with other assertions of police power like

[00:58:59] Speaker 04:
as in Rose Acre, you need to go to the Penn Central analysis.

[00:59:02] Speaker 04:
But no, Your Honor, this is how we try to square the variety of statements that we understand that different courts have made about police power.

[00:59:12] Speaker 04:
And also, just so that it corresponds with the efforts.

[00:59:16] Speaker 04:
I mean, in Keystone, the court describes sort of the underlying theory of police power and why it exists.

[00:59:25] Speaker 04:
And basically it said that along with the concept of in-nearing, there's this sort of general concept that in-nears to all property that anybody owns that it could be subject to the police power.

[00:59:38] Speaker 04:
And so some things like dangerous drugs and dangerous weapons and things that are being imported and the like, those have

[00:59:47] Speaker 04:
I mean, the government's interest is much broader there and for health and safety reasons.

[00:59:52] Speaker 04:
And we believe that that focuses on a core police power.

[01:00:03] Speaker 04:
Just the last point on Lucas.

[01:00:07] Speaker 04:
This court has from time to time indicated that Lucas may

[01:00:14] Speaker 04:
may apply to personal property as opposed to just real property.

[01:00:18] Speaker 04:
It is the only circuit that has said that.

[01:00:21] Speaker 04:
We don't believe that that's consistent with Lucas.

[01:00:23] Speaker 04:
And in the Horn decision, the most recent time that we're aware that the federal circuit has said this is in A and B, the Horn decision, which came out after A and B, made it clear that the limitations on Lucas

[01:00:37] Speaker 04:
are still good law that is only for real property with a hundred economically worthless that personal property that look at and I'm quoting horn quote Lucas recognized that while an owner of personal property ought to be aware of the possibility that the new regulation

[01:00:52] Speaker 04:
might even render his property economically worthless.

[01:00:55] Speaker 04:
So that is the Supreme Court's most recent statement on this and we believe and the Fourth Circuit in Maryland shall issue which the same conclusion is that for personal property such as the bump stock that

[01:01:07] Speaker 05:
that there is no per se rule and that you have to, if they survive the police power, which we don't think they should, and if they have the property rights... I'm sorry, and that would be even for mandatory dispossession as opposed to a use or sale restriction?

[01:01:25] Speaker 04:
Yes, Your Honor.

[01:01:28] Speaker 04:
Yes.

[01:01:28] Speaker 04:
Even if the government actually went in and took them, which we don't believe that they did, but if physically said, bring us your bump stocks,

[01:01:36] Speaker 04:
that Lucas would not require that from going to a person analysis.

[01:01:50] Speaker 04:
But, I mean, this was a regulatory action and it should be judged under Penn Central.

[01:01:57] Speaker 04:
And with that, unless the court has any other questions,

[01:02:01] Speaker 04:
We ask the court to affirm the holdings of both of the trial courts in dismissing the complaint as failing to state.

[01:02:10] Speaker 01:
Thank you, Ms.

[01:02:10] Speaker 01:
Tam.

[01:02:11] Speaker 04:
Thank you.

[01:02:12] Speaker 04:
Thank you all for your time and attention.

[01:02:14] Speaker 01:
Thank you.

[01:02:15] Speaker 01:
Ms.

[01:02:15] Speaker 01:
Gelman?

[01:02:17] Speaker 02:
Yes, I just would like to make a couple of points.

[01:02:20] Speaker 02:
The first is about the government's position that the letters didn't create any property rights for the owners of bump stocks.

[01:02:29] Speaker 02:
It was never our contention that the letters created a property rights.

[01:02:32] Speaker 02:
The property rights came about simply by virtue of the purchase of a consumer product.

[01:02:39] Speaker 02:
There was no law in place.

[01:02:41] Speaker 02:
There was no reason why the owners of bump stocks wouldn't have the full bundle of rights in the bump stocks that they purchased.

[01:02:48] Speaker 02:
There was nothing in the machine gun ban that applied to the bundle of rights at that time.

[01:02:53] Speaker 02:
When the government speculates that it would have been possible to take someone to court,

[01:02:59] Speaker 02:
and prosecute under the machine gun ban, that's pure speculation.

[01:03:03] Speaker 02:
And in fact, the legislative rule that the agency, that the ATF chose to bring about the final rule through a legislative rule is highly indicative that the agency itself understood that the machine gun ban standing on its own would not be sufficient in a court in order to prosecute someone for owning a bump stock.

[01:03:24] Speaker 02:
That's just beside the point that they wrote

[01:03:27] Speaker 02:
letters stating that they did not believe that it covered bump stocks.

[01:03:31] Speaker 02:
So the bundle of rights that we have that owners had in these bump stocks had nothing to do with the letters coming out.

[01:03:37] Speaker 02:
That's simply a confirmation of what the ATF's view was before they made a policy decision that bump stocks ought to be regulated by the machine gun ban.

[01:03:48] Speaker 02:
Now I want to point out something about the use of this expression to the core police power.

[01:03:56] Speaker 02:
This is not an expression that's used in takings law.

[01:03:59] Speaker 02:
In fact, this is the very distinction that the Lucas Court said is not permissible.

[01:04:04] Speaker 02:
The distinction between a regulation that results in some benefits and one that prevents some harm, these are just the same size.

[01:04:13] Speaker 02:
They're two sides of a single coin.

[01:04:15] Speaker 02:
And the Lucas decision tells courts that that cannot be the determining factor in deciding how to deal with a categorical taking.

[01:04:26] Speaker 02:
But the term core police powers, when it comes up at all, I Googled it on Westlaw, it's only with respect to what powers do the states have in comparison to what powers does the federal government have.

[01:04:39] Speaker 02:
And so you will see that expression at times in these early Supreme Court decisions that address takings law because the issue there was

[01:04:47] Speaker 02:
that it was a state regulation and it was largely a due process claim.

[01:04:53] Speaker 02:
But that's not a takings principle and there is no recognition of a core police power exempting government action from a takings analysis where there's, where all of the rights in property have been taken away.

[01:05:09] Speaker 05:
And there's nothing in it.

[01:05:10] Speaker 05:
And I assume you disagree with the government's characterization of horn

[01:05:17] Speaker 05:
as reiterating the observation in Lucas about personal property insofar as the government says that Horn applies that to dispossession as opposed to a regulation of use?

[01:05:32] Speaker 02:
I think the government is totally incorrect.

[01:05:35] Speaker 02:
The only thing that Lucas said is that unlike land where personal property is concerned,

[01:05:42] Speaker 02:
It might not be sufficient that the government has taken away all economic value.

[01:05:47] Speaker 02:
It's really just a reiteration of what the Supreme Court said in Andrews v. Allard, where the owners of eagle feathers and other bird parts of protected birds could no longer be sold.

[01:05:59] Speaker 02:
Well, in that case, the Supreme Court said, you still have possession, and this is therefore not a taking.

[01:06:05] Speaker 02:
It's reasonable regulation in that you are no longer able to sell.

[01:06:10] Speaker 02:
I think that the most you can say, Lucas says, and that Horne reiterated, is that if the owner of a personal property has all rights taken away except the right to possession, that is likely a very difficult takings case.

[01:06:28] Speaker 02:
But that's not our case.

[01:06:29] Speaker 02:
In our case, possession was taken away.

[01:06:32] Speaker 02:
All rights were taken away.

[01:06:33] Speaker 02:
And I think that the words in Horne that most indicate how this case should be decided,

[01:06:40] Speaker 02:
is that the Quorum case said that whatever Lucas had to say about reasonable expectations with regard to regulation, and this is a quote, people still do not expect their property, real or personal, to be actually occupied or taken away.

[01:06:57] Speaker 02:
Now, with the understanding that the Supreme Court has viewed your property being taken away,

[01:07:04] Speaker 02:
as your rights being destroyed in it.

[01:07:07] Speaker 02:
We take the point of view of the owner of the property, not the point of view of the government.

[01:07:12] Speaker 02:
The Horn decision is saying, yes, you can expect reasonable regulations, reasonable restrictions on the use of your private property.

[01:07:22] Speaker 02:
And it might even mean you no longer have any economic use of your private property, but you'll get to keep it.

[01:07:28] Speaker 02:
And I think that my time is up.

[01:07:29] Speaker 02:
Thank you very much for hearing our argument today.

[01:07:32] Speaker 01:
Thank you.

[01:07:33] Speaker 01:
Thank you both, Council.

[01:07:35] Speaker 01:
This matter will stand submitted.