The right to own property is a pillar of American individual liberty. The Fifth Amendment is meant to protect that right: “No person shall … 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 first section is known as the Due Process Clause and the second is the Takings Clause. The Fifth Amendment wasn’t written to protect only privately owned land and homes, it was meant to protect all private property from the government’s sticky fingers. The Takings Clause requires the government to pay compensation when they take private property regardless of the nature of the property.
The State of Maryland recently enacted legislation making the possession of rapid-fire trigger activators (bump stocks) illegal to possess. In Maryland Shall Issue v. Hogan, the Plaintiffs do not challenge the State’s authority to prohibit the possession of so-called rapid trigger activators. Instead, Plaintiffs merely ask the government to pay just compensation for eliminating their right to possess lawfully acquired private property. The District Court dismissed the case and the Fourth Circuit Court of Appeals affirmed that decision— holding the plaintiffs had no legitimate claim under the Takings Clause. Plaintiffs are now petitioning the United States Supreme Court to hear the case. On Thursday, FPC filed an amicus brief in support of Maryland Shall Issue arguing the history and tradition of the Fifth Amendment’s Takings Clause make clear that it protects personal property as robustly as real property, and that the lower courts erred in holding to the contrary.
What follows is a short rundown of the substance of the FPC brief that will help lawful firearms owners better understand the stakes. The brief was authored by FPC’s Director of Constitutional Studies, Joseph Greenlee.
- Real Property v. Personal Property
Property can be classified in numerous ways. The law, however, traditionally categorizes private property in one of two ways: real property or personal property. Real property is typically considered land and all things attached to the land. Personal property, on the other hand, encompasses all other physical possessions. There are also other types of property such as intangible property (i.e., intellectual property) and public property. First, and foremost, the FPC brief argues the history and tradition of the Takings Clause is concerned with privately owned real and personal property. The Takings Clause makes no distinction between real property and personal property when taken by the government. Instead, history shows the Founders were just as concerned with the appropriation of personal property by the government as the regulation or physical invasion of real property.
- An English Birthright
On June 15, 1215, King John was presented with Magna Carta at Runnymede. The actual and symbolic significance of Magna Carta to the Founders of the United States cannot be overstated. In reality, the Founders considered themselves Englishmen. As Englishmen, they were entitled to all the rights and privileges flowing from that birthright. Importantly, this included those provisions of Magna Carta that protected personal property from being taken by the government without consent or the payment of just compensation. The FPC brief describes the historical significance of Magna Carta and its importance to the Founders, the Constitution, and the Bill of Rights.
- Taxation on Personal Property
Prior to the Revolutionary War, the Stamp Act and the Townshend Acts caused an uproar in the colonies, further garnering sentiment for the eventual revolution. The Stamp Act implemented a tax on printed materials such as newspapers and broadsides. To prove the tax had been paid, a stamp was affixed to these documents. Similarly, the Townshend Acts taxed imported lead, glass, tea, and paper. American’s considered these Acts takings of their personal property. The uproar caused by these taxes highlights the importance of property rights to early Americans, especially the right to the possession of personal property. The imposition of these taxes spurred Delegates from nine colonies to form the Stamp Act Congress on October 7, 1765. The Congress asserted “it is unreasonable and inconsistent with the principles and spirit of the British constitution for the people of Great Britain to grant His Majesty the property of the colonists.” The FPC brief argues the colonial reaction to taxes of personal property highlights the importance of personal property in early America.
- Gunpowder and Revolution
Eighteenth-century black gunpowder was volatile and dangerous. As a result, large quantities of gunpowder were often stored in a central “powder house” or “magazine.” In the face of an evermore dissident population, British authorities began to seize colonial gunpowder in the years and months preceding the start of the Revolutionary War. In addition, the British also began to seize imported arms. These actions were an attempt to destroy the ability of Americans to defend themselves. The Colonists saw these actions as an illegal taking of personal property by the government. Following one arms seizure, a note was secretly conveyed around New York asking “when Slavery is clanking her infernal chains … will you supinely fold your arms, and calmly see your weapons of defence torn from you?” The FPC brief argues the reaction to these seizures was one infringement that drove American Colonists to revolt. In fact, the Battles of Lexington and Concord began as a direct result of a British attempt to seize arms from Concord. The Colonists considered the seizures illegal and deprived them of their inalienable right to defense.
- State Constitutions at the Founding
After the Revolution was won, newly formed state governments were determined to prevent the type of takings that had sparked the Revolution. To that end, most state constitutions enacted at the time provided strong protection for property both real and personal. Moreover, many also classified the right of property ownership as a natural right affording even more protection from governmental interference. In substance, these provisions announced that private property cannot be taken by the government without either consent of the property owner or the payment of just compensation for the property taken. The FPC brief argues these state constitutional protections further emphasize the importance of personal property rights and provide valuable insight into the history and tradition of the Fifth Amendment.
The Founders intended the Fifth Amendment to protect personal property against governmental invasion. It is within a state government’s police power to prohibit the possession of personal property so long as that prohibition has a public purpose. Legislatures retain broad power to enforce policy decisions. That broad power, however, must be weighed against the constitutional protections afforded to personal property.
If you would like to read the full brief, a link is below. FPC depends on donations from citizens to fight for the rights of all Americans. Please consider donating at the link below.