James Madison’s Take on Banning Assault Weapons

Memo to:  Senator Dianne Feinstein (D.-CA), principal author of legislation to ban assault weapons

From: James Madison (deceased), principal author of the Constitution and Bill of Rights

Re:  A constitutional problem with your legislation

Dear Sen. Feinstein:  It’s rare that I borrow Mr. Kauffmann’s space to weigh in from the grave on a political issue (have only done it twice before), but I have a problem with your legislation banning assault weapons, and my problem isn’t related to my Second Amendment.  I agree that there are reasonable restrictions on most of the amendments in the Bill of Rights, including the First Amendment (free speech notwithstanding, one can’t falsely yell “Fire!” in a crowded theatre), and the Second Amendment (felons can’t own guns; laws banning guns in schools and schoolyards easily pass the “reasonable restrictions” test).  Whether banning assault weapons qualifies as a “reasonable restriction” to gun ownership is certainly worthy of debate, but having died before even the six-shooter was invented, I leave that debate to you and your fellow citizens.

Rather, my problem with your legislation is my Fifth Amendment, specifically that amendment’s “takings clause,” which says that no American can be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Granted, your legislation “grandfathers” citizens who currently own assault weapons; that is, while acquiring such weapons in the future would be illegal, those who already own them can keep them.  But your legislation forbids those gun owners from reselling those weapons, which are their property, or even handing them down to their heirs, which is a transfer of property.  As a result, these gun owners are being denied the right to recover the value of the investment they made in purchasing that weapon — that property — thereby depriving them of that property without due process.  It is also, in effect, a “taking” of their private property for a “public use” (purpose), reducing gun violence, without just compensation.  Both violate the Fifth Amendment.

What puzzles me is that you of all people should know this since your last automatic weapons ban, in 1994, allowed the resale or transfer of grandfathered weapons, which I assume you allowed because it avoided this Fifth Amendment problem.

To be clear, I speak strictly from a constitutional viewpoint, but I worry that you are setting a dangerous precedent.  If you can ban the resale of guns for the “public purpose” of reducing gun violence, can’t you also ban the resale of, say, heavily polluting products — gas-guzzling cars, for example — to improve our environment?

Both worthy goals, certainly, but where does it end, especially since no end that is unconstitutional is justifiable.