The gun lobby has consistently tried to use the threat of lawsuits to scare communities away from enacting smart gun laws.  One of the ways they have tried to do that is by claiming that laws prohibiting certain unreasonably dangerous guns or ammunition magazines are inconsistent with the Takings Clause of the The Fifth Amendment to the United States Constitution.  However, like other gun lobby claims about the Constitution, this claim is false.

The Takings Clause provides that the government shall not take “private property . . . for public use, without just compensation.”1  This provision requires the government to compensate property owners when it takes their property for public use.  Most commonly, the Takings Clause has been raised in litigation related to real property (land) where the government is attempting to take or regulate the use of the property through zoning in order to benefit the general public.2

Laws banning especially dangerous guns—such as assault weapons—and large capacity ammunition magazines are not takings and do not require compensation.  The Supreme Court and lower courts have long made a distinction between takings of property for public usage, which are takings, and legitimate exercises of state police power that result in a ban or limitation on property that is a threat to public safety or health, which are not takings.3

Recognizing this distinction, several courts have rejected Takings Clause challenges to laws banning the possession of dangerous weapons.  For example, in Fesjian v. Jefferson, the District of Columbia Court of Appeals upheld a D.C. law that effectively banned machine guns.4  The court found that “the statute in question is an exercise of legislative police power and not of eminent domain” and therefore did not constitute a taking, even though the ban contained no “grandfather clause” and required owners to dispose of their machine guns.5  Similarly, the Eleventh Circuit in Gun South, Inc. v. Brady rejected a Takings Clause challenge to a law temporarily suspending the importation of certain assault weapons, noting that the government in that case was acting “in a purely regulatory capacity and d[id] not profit from its actions.”6

More recently, in Akins v. United States, the Court of Federal Claims rejected a Takings Clause challenge brought by the inventor of a firearm device that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) reclassified as a machine gun, subject to certain sale and possession restrictions.7  Because ATF was acting pursuant to its conferred police power, the court held that inventor could not state a compensable takings claim under the Fifth Amendment.8 As the court plainly articulated, “[p]roperty seized and retained pursuant to the police power is not taken for a ‘public use’ in the context of the Takings Clause.”9 Quoting longstanding Supreme Court precedent, the court added, “[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed to be a taking or an appropriation of property for the public benefit.”10

Courts have also reached the same conclusion in other contexts where governments have acted to regulate or ban potentially dangerous goods or property in order to protect the public health and safety.  For example, courts have rejected Takings Clause challenges in instances where local ordinances were enacted to prohibit ownership of potentially dangerous dog breeds.11

Though courts have upheld laws requiring the destruction or disposal of dangerous property pursuant to the police power where owners could not recover any monetary value from their property, the courts have found takings arguments even weaker where the law allows the property owner to recover some monetary value from the regulated property.  For example, in Quilici v. Village of Morton Grove, the court rejected a takings challenge to an ordinance banning possession of certain firearms within a city, noting that gun owners could still sell or otherwise dispose of their prohibited firearms to individuals outside the city limits.12

In short, because laws banning dangerous guns and ammunition seek to protect the public rather than to confiscate private property for public use, they are perfectly consistent with the Takings Clause of the Fifth Amendment.


  1. U.S. Const. Amend. V. ⤴︎
  2. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (upholding the taking of property with compensation from lessors to transfer it to lessees in order to reduce the concentration of land ownership in the state of Hawaii); Berman v. Parker, 348 U.S. 26 (1954) (upholding the taking of property with compensation in a blighted area of Washington, D.C. in order to promote growth and public health). ⤴︎
  3. See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-669 (1887); Eggleston v. Pierce County, 64 P.3d 618, 623 (Wash. 2003) (“[C]learly, not every government action that takes, damages, or destroys property is a taking. ‘Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.’”); Hunter v. Adams, 180 Cal. App. 2d 511, 523 (1960) (“If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation.”) (citing Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 593-594 (1906) ) (other citations omitted). ⤴︎
  4. 399 A.2d 861 (D.C. Ct. App. 1979). ⤴︎
  5. Id. at 865-66. See also, Kuhn v. Cissel, 409 A.2d 182, 186 (D.C. Ct. App. 1979) (holding that the D.C. police department’s destruction of a shotgun voluntarily surrendered to the police by a third party, pursuant to a statute that generally required the destruction of any firearm turned over to the police, was a legitimate exercise of police power and not an unconstitutional taking of appellant’s property. ⤴︎
  6. 877 F.2d 858, 869 (11th Cir. 1989). ⤴︎
  7. 82 Fed. Cl. 619, 623 (2008). ⤴︎
  8. Id. ⤴︎
  9. Id. at 622; see also, Amerisource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008). ⤴︎
  10. Id. (quoting Mugler v. Kansas, 123 U.S. 623, 668 (1887). ⤴︎
  11. See, e.g., Garcia v. Village of Tijeras, 108 N.M. 116, 123 (1988) (upholding a  law banning pit bulls against a Takings Clause challenge because “[t]he ordinance, being a proper exercise of the Village’s police power, is not a deprivation of property without due process even though it allows for the destruction of private property . . . . [T]he Village has legitimately exercised the police power to curtail a menace to the public health and safety.”); Hearn v. City of Overland Park, 244 Kan. 638, 646 (1989) (same);  Singer v. City of Cincinnati, 566 N.E.2d 190, 192 (1990) (same). ⤴︎
  12. 532 F. Supp. 1169, 1184 (N.D. Ill. 1981). ⤴︎