OLR Report 2013-R-0079 examines how the Fifth Amendment Takings Clause could affect a ban on assault weapons that did not contain a “grandfather” clause (a provision allowing continued ownership of banned weapons by those who legally possess them when the ban takes effect). Please note that the Office of Legislative Research is not authorized to provide legal opinions and this report should not be construed as such.
The “Takings Clause” of the Fifth Amendment to the federal constitution prohibits taking private property “for public use, without just compensation.” This prohibition applies to the states through the 14th Amendment. While the Takings Clause is often discussed in the context of land and real estate, it also applies to personal property. The clause applies to actual confiscations of property as well as to regulatory takings (e.g., laws that deprive a property owner of all beneficial use of the property).
Takings Clause cases can address a variety of issues, such as (1) whether a government action sufficiently infringed upon a property interest to constitute a compensable taking; (2) whether the taking was for public use; and (3) if compensation is required, how to value the property.
We did not find any Connecticut state or federal cases addressing whether a state law banning assault weapons, without grandfathering in current owners, would be considered a taking requiring just compensation. We found cases from other states and other federal circuits concerning Takings Clause challenges to restrictions on the possession, sale, or importation of assault weapons or similar weapons, with or without the grandfathering of current owners.
In all of the cases, the courts decided against the plaintiffs on their takings claims. But it is difficult to answer in general terms how a court would decide a challenge to an assault weapons ban. None of these rulings is binding on Connecticut and the laws at issue in each of these cases varied in several respects that are important to a taking analysis. For example, some of the laws contained a grandfather clause; some contained only temporary bans; and some placed restrictions on the sale of assault weapons but did not ban their sale.
We summarize such cases below, dividing them into two groups depending on who challenged the laws: (1) gun owners or (2) gun dealers, importers, or inventors.
As further noted below, a few of these court opinions included an analysis of the Second Amendment that does not comport with the U.S. Supreme Court's later decisions in D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 130 S.Ct. 3020 (2010). Generally, these earlier opinions discussed the Second Amendment issue separately from the Takings Clause issue, and it is unclear whether their Second Amendment analyses informed their takings analyses.
For more information, read the full report.
