Monday, December 24, 2012

Why a gun ban can never happen

By Donald Sensing

Would it be legal for the US government to ban possession of military-type rifles or certain categories of handguns or large-capacity magazines? I think the question is open, even considering the Second Amendment. I note that the 1994-2004 ban on "assault" rifles grandfathered possession of the existing guns and did not require anyone to surrender possession. It just forbade commercial sales of such guns. Same with the later ban on magazines with a capacity of more than 10 rounds.

But suppose the Congress passed and the president signed legislation outright banning possession of assault rifles, meaning the present owners would have to turn them in to the government. (This was done is Australia, btw, in 1996, but only 20 percent of Aussie gun owners complied.) Of course the federal courts would be tied up immediately with Second Amendment challenges, but I'll leave that aside for now.

The only precedent I can think of for such a law is the FDR administration's ban on private ownership of "monetary gold."

Executive Order 6102 is an Executive Order signed on April 5, 1933, by U.S. President Franklin D. Roosevelt "forbidding the Hoarding of Gold Coin, Gold Bullion, and Gold Certificates within the continental United States". The order criminalized the possession of monetary gold by any individual, partnership, association or corporation. ...
Executive Order 6102 required all persons to deliver on or before May 1, 1933, all but a small amount of gold coin, gold bullion, and gold certificates owned by them to the Federal Reserve, in exchange for $20.67 (equivalent to $371.10 today[3]) per troy ounce. Under the Trading With the Enemy Act of 1917, as amended by the recently passed Emergency Banking Act of March 9, 1933, violation of the order was punishable by fine up to $10,000 (equivalent to $180 thousand today[3]) or up to ten years in prison, or both. Most citizens who owned large amounts of gold had it transferred to countries such as Switzerland. 
Order 6102 specifically exempted "customary use in industry, profession or art"—a provision that covered artists, jewellers, dentists, and sign makers among others. The order further permitted any person to own up to $100 in gold coins (a face value equivalent to 5 troy ounces (160 g) of Gold valued at about $7800 as of 2011). The same paragraph also exempted "gold coins having recognized special value to collectors of rare and unusual coins." This protected recognized gold coin collections from legal seizure and likely melting.
Note that, whether the order was Constitutionally supportable or not, the government paid citizens for their gold. Constitutionally, the "takings" clause of Fifth Amendment requires "just compensation" to be paid to owners of private property taken for public use (including policy purposes). 

That gives an insight why the 1994 ban did not include requiring existing owners of specified types of weapons to turn them in. The plain fact is that neither then nor today is it remotely financially possible. 

Exhibit A: "New York can’t afford assault rifle buyback - it could cost the state $1B"
New York state can’t afford to confiscate all the assault rifles out there. 
The number of such military-style weapons in the state — including the New York-made Bushmaster used in the Sandy Hook massacre — is at least 1 million, far higher than even some local criminal-justice experts realize, gun-industry experts say/ 
And given that the weapons are worth $1,000 or more apiece, a buyback would cost the state at least $1 billion, since even Cuomo administration officials concede that their owners would have to be compensated financially. 
Try to figure the cost on a national scale. No one really know how many "assault" weapons there are in America, but tens of millions seems reasonable to estimate. So "just compensation" would come to, minimally, hundreds of billions of dollars. Not. A. Chance.

Besides, as I have pointed out before, the past and proposed assault rifle ban (being re-sponsored by Sen. Diane Feinstein, D.-Calif.) is literally purely cosmetic. For in 1994, this was a banned rifle:


And this was not:



So the Congress might re-ban the top rifle and its stylistic cousins, but public safety will not be improved. And banning possession, rather than mere future sales, is both politically and financially impossible. As comedian Bill Dana used to put it as character Jose Jimenez, "No tengo el dinero, SeƱor!"

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