CT Against Gun Violence

P.O. Box 523 Southport, CT 06890 tel: 203-335-3802 www.cagv.org

March 15, 2013 TO: FROM: All Legislators Ron Pinciaro, Executive Director

SUBJECT: Ban on large capacity magazines WILL NOT WORK without a BAN ON POSSESSION While we sincerely appreciate your efforts to consider all arguments before recommending a final bill on firearms provisions, we believe from statements made and rumors circulating that there is one limitation being discussed that we find intolerable. That discussion centers around the possibility of grandfathering existing magazines capable of holding more than ten rounds. If such a provision is included in the final bill, the ban will have no meaning. Because there are no markings on the magazines that differentiate pre-ban vs. post-ban manufacture, there will be no enforcement possibilities to preclude purchases made in nearby states and brought back to Connecticut. This provides an enormous loophole that renders that provision completely ineffective. When the federal ban on future purchase of the magazines was passed in 1994, the marking for law enforcement only was required on magazines manufactured during the term of the federal ban. Since the ban expired in 2004, there are no markings that differentiate new manufacture from old. When New York originally banned the sale of magazines of more than ten rounds, they found that the law was ineffectual for exactly the reason stated above. Their new bill, passed just this year recognized the inadequacy and banned possession, including existing magazines, with the capacity to hold more than seven rounds (they did allow owners to keep magazines holding seven to ten rounds, but feeding more than seven rounds into those magazines is a crime). Current California law does not ban possession but prohibits manufacturing, importing, keeping for sale, offering or exposing for sale, giving, or lending , but not possession. California, recognizing the need for that correction, has a bill in the current session that would now ban possession as well. New Jersey bans possession of magazines over 15 rounds. An exemption is made only to a person who has registered an assault weapon and only if the magazine is maintained and used in connection with participation in competitive shooting matches sanctioned by the Director of Civilian Marksmanship of the United States Department of the Army. Hawaii bans possession of magazines holding over ten rounds for handguns. DC bans possession of any magazine over ten rounds.

Letter to Senators

March 15, 2013

Arguments of constitutionality have also been raised. Having sought out expert opinion from a number of sources, we are confident that we are on safe constitutional ground in seeking a ban on possession of the magazines. Two of those opinions follow here. One is based on the fact that this is not a taking for Government use, and the other on the fact that it is a regulatory, not a public domain taking.

1)

From Yale University professor and scholar, Akhil Reed Amar, on this particular question, I believe that seminal work done by Jed Rubenfeld would clearly suggest that no just compensation is owed by the government when once-lawful property is subsequently deemed contraband, but is not affirmatively "used" by the government. See generally Rubenfeld, Usings, 102 Yale LJ 1077 (1993). Thus, cocaine was once legal, but later became generally illegal, but no just compensation was required because the government did not itself "use" the cocaine. (The government did not, for example, use confiscated cocaine to set broken noses in gov't-run hospitals.) I would think one important precedent is Mugler v. Kansas, 123 U.S. 623 (1887), ruling that no compensation had to be paid when a once-legal brewery was adversely impacted by a new prohibition law. See also US v. Caltex (Phillipines) Inc., 344 U.S. 149 (1952), ruling that no compensation was owed when gov't simply burned certain crops in the field to prevent the enemy army from feasting on the crops; again, the key fact in the case was that the US gov't did not ITSELF USE the crops (say, by feeding them to its own troops). And in the situation at hand, the government will not be affirmatively using the banned ammo/guns for its own purposes.

2)

From Benjamin Van Houten, Managing Attorney, Law Center to Prevent Gun Violence, San Francisco: The court cited Lamm v. Volpe, 449 F.2d 1202 (10th Cir. 1971), to support that a taking for the public benefit under a power of eminent domain is...to be distinguished from a proper exercise of police power to prevent a perceived public harm, which does not require compensation. 399 A.2d at 866. In Lamm, the Tenth Circuit, in rejecting plaintiffs claim that Congress determination that the removal of outdoor advertisements from highways required just compensation was a usurpation of Colorados police power, outlined the differences between police power and eminent domain: We recognize that police power is a matter of legislative prerogative. In this field the legislature has wide discretionary powers. It includes everything essential to public safety, health, and morals. Police power should not be confused with eminent domain, in that the former controls the use of property by the owner for the public good, authorizing its regulation and destruction without compensation, whereas the latter takes property for public use and compensation is given for property taken, damaged or destroyed. Lamm, 449 F.2d at 1203. Acknowledging the three alternative ways that a person could dispose of an unregisterable firearm, the Fesjian court concluded, That the statute in question is an exercise of legislative police power and not of eminent domain is beyond dispute. The argument of petitioner, therefore, lacks merit. 399 A.2d at 866. The Fesjian court held that strict gun control regulations, regulations that in effect prohibited the possession of machine guns, did not constitute a takings requiring just

Letter to Senators

March 15, 2013

compensation, finding instead that the firearms restrictions at issue were part of the legitimate range of state police power. In addition to the two opinions cited, a number of additional citations are included in the attached documents. We strongly ask you to carefully consider the factors being brought to you in this letter. We feel that the obvious conclusions are that: 1) Banning possession is essential to effective law in this matter and is consistent with ongoing trends among enlightened state legislatures, among which Connecticut has the fourth highest ranking; ; and 2) The Fifth Amendment takings clause does not apply as this is not a taking for the public benefit under eminent domain which would require just compensation. but it is rather a proper exercise of police power to prevent a perceived public harm which does not require compensation and is a clear matter of legislative prerogative. The people of Connecticut are asking for bold action by their legislature in the aftermath of the December 14th rampage. The people of Newtown deserve nothing less.
Sincerely,

Ron Pinciaro Executive Director

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