Shooters Forum banner

1 - 1 of 1 Posts

·
Banned
Joined
·
548 Posts
Discussion Starter #1
In addition to the 2nd Amendment arguement that we are all familiar with, the Constitution also addresses vadid exercises of the police power and eminent domain.

The police power may only be exercised to "protect the public health, safety and welfare" and does not require compensation. This applies to all regulations. However, the police power may not be used to "take" property. Such takings are found to constitute "inverse condemnation", and require compensation because they are actually eminent domain.

Eminent domain is valid, however, only where exercised to serve a "public purpose". A public purpose has been defined by the courts as public use or a public benefit. Public use means just that - use by the public, as one would use a highway or a park.Public benefit means economic benefit as it might for an urban renewal or free trade zone or industrial park.

The public benefit arguemant does not apply to cases where the benefit is actually regulatory. These actions are left to the police power.

This means that regulating gun ownership is invalid in instances where compensation for property taken is not provided, AND that compensation, where it is given for a regulatory act, invokes the eminent domain requirement that it be for a public purpose. Regulations requiring compensation are merely cloaked applications of the law of eminent domain.

However, the taking of firearms does not serve a public purpose within the court interpretations of that term and certainly does not imply public use.

Even without the 2nd Amendment, existing firearms cannot be taken, even with compensation, because the public purpose is actually regulatory.

Future sales of firearms perhaps can be regulated, because no property is inversely taken, but there is no way to get rid of the arms that are currently owned.

The sale of arms between citizens also cannot be made unlawful, because it eliminates the value of the arms to the current owners - it's a taking.

What then of the arguement of the regulators that the elimination of firearm sales will protect the public health, safety and welfare? With millions of arms in free circulation, how is the public health, safety and welfare protected?
 
1 - 1 of 1 Posts
Top