McCutchen v. United States ( 2021 )

Case: 20-1188 Document: 44 Page: 1 Filed: 10/01/2021
United States Court of Appeals
for the Federal Circuit
______________________
ROY LYNN MCCUTCHEN, PADUCAH SHOOTER’S
SUPPLY, INC., INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1188
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01965-EDK, Judge Elaine Kaplan.
______________________
Decided: October 1, 2021
______________________
JENNIFER GELMAN, Flint Law Firm LLC, Edwardsville,
IL, argued for plaintiffs-appellants. Also represented by
ADAM MICHAEL RILEY.
KENNETH DINTZER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR., LOREN MISHA PREHEIM, NATHANAEL YALE.
______________________
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2 MCCUTCHEN v. UNITED STATES
Before TARANTO, WALLACH, * and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Opinion concurring in the result filed by Circuit Judge
WALLACH.
TARANTO, Circuit Judge.
On December 26, 2018, the U.S. Department of Justice,
exercising congressionally granted authority to implement
various federal firearms statutes, promulgated a rule that
is the basis for the takings claim in this case. Bump-Stock-
Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (Final
Rule). The impetus for the proceeding was the massacre in
Las Vegas on October 1, 2017, when a lone shooter, using
“rifles with attached bump-stock-type devices,” fired “sev-
eral hundred rounds of ammunition in a short period of
time, killing 58 people and wounding approximately 500.”
Id. at 66,516. Since 1986, 18 U.S.C. § 922(o) has declared
it to be unlawful to possess or transfer a “machinegun”
(with exceptions not applicable here, for governments and
for lawful possession before the 1986 law took effect), with
“machinegun” defined with specificity by statute, 26 U.S.C.
§ 5845(b) (incorporated by 18 U.S.C. § 921(a)(23)). In the
Final Rule, the Department, which houses the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), adopted
regulations that interpret the statutory definition and spe-
cifically provide that the definition includes “a bump-stock-
type device, i.e., a device that allows a semi-automatic fire-
arm to shoot more than one shot with a single pull of the
trigger by harnessing the recoil energy of the semi-auto-
matic firearm to which it is affixed so that the trigger resets
and continues firing without additional physical manipula-
tion of the trigger by the shooter.” 83 Fed. Reg. at 66,553–
54. The Final Rule states that “[t]he bump-stock-type
*Circuit Judge Evan J. Wallach assumed senior sta-
tus on May 31, 2021.
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MCCUTCHEN v. UNITED STATES 3
devices covered by this final rule were not in existence prior
to” 18 U.S.C. § 922(o). Id. at 66,514. As of March 26, 2019,
the Rule’s effective date, possessors of such devices had to
destroy them or abandon them to ATF, or else face criminal
penalties under 18 U.S.C. § 924(a)(2) for a “knowing” vio-
lation of 18 U.S.C. § 922(o). See id. at 66,514, 66,520,
66,523.
Plaintiffs Roy McCutchen and Paducah Shooter’s Sup-
ply, Inc. brought this action against the United States in
the Court of Federal Claims (Claims Court) under the
Tucker Act, 28 U.S.C. § 1491. Asserting that the Final
Rule effected a taking for public use of their bump-stock-
type devices by requiring the devices’ destruction or sur-
render to ATF, plaintiffs seek just compensation under the
Fifth Amendment’s Takings Clause. Because it is the Final
Rule that plaintiffs challenge and “[t]he bump-stock-type
devices covered by this final rule were not in existence prior
to the effective date of” 18 U.S.C. § 922(o), 83 Fed. Reg. at
66,514, plaintiffs’ bump-stock-type devices necessarily
were not in existence before § 922(o) took effect. Although
the Rule’s validity has been disputed in other cases, plain-
tiffs accept, in their pursuit of their compensation claim,
that the Final Rule is an authorized and lawful (i.e., valid)
implementation of the statutory bar on possession or trans-
fer of a “machinegun.”
The government moved to dismiss the claim under
Court of Federal Claims Rule 12(b)(6). By the time the mo-
tion was fully briefed, the Rule’s effective date had arrived,
and plaintiffs had complied with the Rule and destroyed
their bump-stock-type devices. The Claims Court granted
the motion and dismissed the takings claim. It principally
relied on the “police power” doctrine, concluding that, be-
cause the Final Rule sought to protect health and safety, it
did not effect a taking for public use. See McCutchen v.
United States, 145 Fed. Cl. 42, 51–53 (2019).
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4 MCCUTCHEN v. UNITED STATES
We affirm, but we do so on a threshold ground different
from, though related to, the Claims Court’s grounds. The
interest that plaintiffs allege was taken was the interest in
continued possession or transferability of their devices.
The takings claim depends on plaintiffs having an estab-
lished property right in continued possession or transfera-
bility even against a valid agency implementation of the
preexisting statutory bar on possession or transfer. But
plaintiffs’ title, which we assume is otherwise valid under
state law, was always inherently limited by 18 U.S.C.
§ 922(o), a very specific statutory prohibition on possession
and transfer of certain devices defined in terms of physical
operation, together with a congressional authorization of a
(here undisputedly) valid agency interpretation of that pro-
hibition. That title-inhering limit means that plaintiffs
lacked an established property right in continued posses-
sion or transferability. The takings claim therefore fails.
I
A
In 1934, Congress enacted the National Firearms Act,
Pub. L. No. 73–474, 48 Stat. 1236 (NFA or 1934 Act). The
Act regulated the importation, manufacture, transfer, sale,
and possession of certain firearms, including “ma-
chineguns.” 1 See 26 U.S.C. § 5801 et seq. Congress specif-
ically defined “machinegun.” Id. § 5845(b) (current
version, quoted infra). Congress included penalty and for-
feiture provisions and also subjected violators to the gen-
eral enforcement measures available under the internal-
revenue laws. Id. §§ 5871–72.
About thirty years later, Congress enacted the Gun
Control Act of 1968, Pub. L. No. 90–618, 82 Stat. 12131 Statutory and regulatory provisions sometimes use
“machinegun,” sometimes “machine gun.” Except when
quoting, we use the latter.
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MCCUTCHEN v. UNITED STATES 5
(GCA or 1968 Act). See 18 U.S.C. § 921 et seq. In that Act,
Congress established a regulatory licensing scheme and
imposed criminal prohibitions on certain firearm transac-
tions. 18 U.S.C. § 923. The GCA incorporates the National
Firearm Act’s “machinegun” definition. Id. § 921(a)(23)
(“The term ‘machinegun’ has the meaning given such term
in section 5845(b) of the National Firearms Act (26 U.S.C.
5845(b)).”).
In 1986, Congress adopted the Firearm Owners’ Pro-
tection Act, Pub. L. No. 99–308, 100 Stat. 449 (FOPA or
1986 Act), which amended the Gun Control Act and Na-
tional Firearm Act. The 1986 Act added 18 U.S.C. § 922(o),
which provided when enacted and still provides:
(o)(1) Except as provided in paragraph (2), it shall
be unlawful for any person to transfer or possess a
machinegun.
(2) This subsection does not apply with respect to—
(A) a transfer to or by, or possession by or
under the authority of, the United States or
any department or agency thereof or a
State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession
of a machinegun that was lawfully pos-
sessed before the date this subsection takes
effect [May 19, 1986].
§ 102, 100 Stat. at 453; 18 U.S.C. § 922(o). That language
makes it unlawful to possess or transfer a “machinegun,”
with exceptions for governments and pre-FOPA lawful pos-
session. See Final Rule, 83 Fed. Reg. at 66,515 (noting that
the amendment “effectively froze the number of legally
transferrable machineguns to those that were registered
before the effective date of the statute”). A “knowing” vio-
lation subjects the violator to criminal penalties, 18 U.S.C.
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6 MCCUTCHEN v. UNITED STATES
§ 924(a)(2); a “willful” violation subjects the violator to “sei-
zure and forfeiture” remedies, id. § 924(d)(1).
The crucial term, “machinegun,” is declared, in 18
U.S.C. § 921(a)(23), to have the meaning specified in 26
U.S.C. § 5845(b). Since 1986, that definition has provided:
The term “machinegun” means any weapon which
shoots, is designed to shoot, or can be readily re-
stored to shoot, automatically more than one shot,
without manual reloading, by a single function of
the trigger. The term shall also include the frame
or receiver of any such weapon, any part designed
and intended solely and exclusively, or combination
of parts designed and intended, for use in convert-
ing a weapon into a machinegun, and any combina-
tion of parts from which a machinegun can be
assembled if such parts are in the possession or un-
der the control of a person.
26 U.S.C. § 5845(b) (emphases added). 2
2 The italicized phrase, “any part designed . . . ,” was
substituted in 1986 for the phrase, “any combination of
parts designed and intended for use in converting a weapon
into a machinegun.” 1986 Act, § 109(a), 100 Stat. at 460.
The 1968 Act enacted the following version of 26 U.S.C.
§ 5845(b): “(b) MACHINEGUN.—The term ‘machinegun’
means any weapon which shoots, is designed to shoot, or
can be readily restored to shoot, automatically more than
one shot, without manual reloading, by a single function of
the trigger. The term shall also include the frame or re-
ceiver of any such weapon, any combination of parts de-
signed and intended for use in converting a weapon into a
machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the pos-
session or under the control of a person.” § 201, 82 Stat. at
1231.
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MCCUTCHEN v. UNITED STATES 7
In 18 U.S.C. § 926(a), Congress has granted the Attor-
ney General the authority to promulgate rules and regula-
tions “necessary to carry out” chapter 44 of Title 18, U.S.
Code, which includes 18 U.S.C. § 922. In 26 U.S.C.
§ 7801(a), Congress has made the Attorney General re-
sponsible for the “administration and enforcement” of
chapter 53 of Title 26, U.S. Code, which includes 26 U.S.C.
§ 5845. The grants of implementation authority have been
in place since 1986: The current “necessary to carry out”
language of 18 U.S.C. § 926(a) was adopted in the 1986 Act,
replacing the preexisting “reasonably necessary” authority,
§ 106, 100 Stat. at 459; and even before the 1986 Act, 26
U.S.C. § 7801(a) granted the Executive the “administration
and enforcement” authority relevant here, 26 U.S.C.
§ 7801(a) (1982). Before 2002, both authorities resided
with the Secretary of the Treasury, see 18 U.S.C.
§§ 921(a)(18), 926(a) (2000); 26 U.S.C. § 7801(a) (2000), but
in 2002, they were transferred to the Attorney General as
part of the relocation of ATF to the Department of Justice,
see Homeland Security Act of 2002, Pub. L. No. 107–296,
§ 1111, 116 Stat. 2135, 2274–75; 28 U.S.C. § 599A(c)(1).
The Attorney General has delegated relevant authority to
ATF. 28 C.F.R. § 0.130(a)(1)–(2).
B
A rifle is semiautomatic if, after it has been fired,
rechambering of ammunition is automatic but refiring is
not. Specifically, “[t]he term ‘semiautomatic rifle’ means
any repeating rifle which utilizes a portion of the energy of
a firing cartridge to extract the fired cartridge case and
chamber the next round, and which requires a separate
The 1934 Act’s original definition reads: “The term ‘ma-
chine gun’ means any weapon which shoots, or is designed
to shoot, automatically or semiautomatically, more than
one shot, without manual reloading, by a single function of
the trigger.” § 1(b), 48 Stat. at 1236.
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8 MCCUTCHEN v. UNITED STATES
pull of the trigger to fire each cartridge.” 18 U.S.C.
§ 921(a)(28). A “bump-stock-type device” transforms a
semiautomatic rifle so that “a separate pull of the trigger
to fire each cartridge” is not needed. Such a device replaces
the generally stationary stock resting against the shooter’s
shoulder with a sliding stock that lets the shooter substan-
tially increase the rate of fire without a commensurate in-
crease in the number of finger motions pulling the trigger.
Final Rule, 83 Fed. Reg. at 66,516. The device channels
and directs the recoil energy from each shot “into the space
created by the sliding stock (approximately 1.5 inches) in
constrained linear rearward and forward paths.” Id. at
66,518. By maintaining constant backward pressure on
the trigger (without repeated finger motions to pull the
trigger) and constant forward pressure on the front of the
gun, a shooter can fire bullets continuously and at a high
rate to “mimic” the performance of a fully automatic
weapon. Id. at 66,516.
A variety of devices with different mechanisms for us-
ing the firearm’s recoil energy to refire without a new
movement of the finger (a separate new pull motion of the
finger) came to ATF’s attention long before the proceeding
that ended with the Final Rule. In 2002, ATF “initially re-
viewed the Akins Accelerator.” Id. at 66,517. Unlike the
devices at issue here, the Akins Accelerator used springs to
cause the trigger to continue to make contact with the
shooter’s finger rather than relying on the shooter to main-
tain pressure on the trigger and the firearm. See id. at
66,514, 66,516–17; see also Akins v. United States, 312 F.
App’x 197, 200 (11th Cir. 2009) (“After a single application
of the trigger by a gunman, the Accelerator uses its inter-
nal spring and the force of recoil to fire continuously the
rifle cradled inside until the gunman releases the trigger
or the ammunition is exhausted.”).
Initially, in 2002, ATF determined that the device was
not a machine gun “because ATF interpreted the statutory
term ‘single function of the trigger’ to refer to a single
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MCCUTCHEN v. UNITED STATES 9
movement of the trigger.” Final Rule, 83 Fed. Reg. at
66,517 (emphases added). But in 2006, ATF reversed
course in a published ruling. See ATF Ruling 2006-2. After
retesting the Akins Accelerator, ATF determined that with
the device, “a single pull of the trigger initiates an auto-
matic firing cycle [that] continues until the finger is re-
leased or the ammunition supply is exhausted.” Id. at 2.
This time ATF interpreted the statutory phrase “single
function of the trigger” as “single pull of the trigger.” Id.
(emphases added). Given that interpretation, ATF readily
determined that the Akins Accelerator was a machine gun
under the NFA and GCA. Id. at 2–3. When Akins chal-
lenged ATF’s determination in federal court, the Eleventh
Circuit, agreeing with the district court, affirmed ATF’s
statutory interpretation and consequent determination
that the Akins Accelerator was a machine gun. Akins, 312
F. App’x at 199–201; Akins v. United States, No. 8:08-cv-
988-T-26TGW, 2008 WL 11455059, at *3–8 (M.D. Fla. Sept.
23, 2008).
Thereafter, ATF considered other bump-stock-type de-
vices. As ATF later described its actions, ATF advised that
a number of such devices were not machine guns—includ-
ing the ones at issue here. See Final Rule, 83 Fed. Reg. at
66,517. Specifically, in ten unpublished classification rul-
ings between 2008 and 2017, ATF “provided different ex-
planations for why certain bump-stock-type devices were
not machineguns, but none of them extensively examined
the meaning of ‘automatically.’” Id. at 66,518. All those
decisions were subject to ATF’s publicly available hand-
book warning that such rulings could not be relied upon as
guaranteeing inapplicability of the existing statutory pro-
hibitions if reconsidered and modified. See National Fire-
arms Act Handbook § 7.2.4.1 (Handbook) (relevant
portions have stayed the same from at least 2007 to now).
Indeed, the Eleventh Circuit relied on ATF’s power to “re-
consider and rectify” a classification decision when uphold-
ing ATF’s 2006 ruling on the Akins Accelerator after ATF’s
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10 MCCUTCHEN v. UNITED STATES
contrary 2002 ruling. See Akins, 312 F. App’x at 200
(“Based on the operation of the Accelerator, the Bureau had
authority to ‘reconsider and rectify’ what it considered to
be a classification error.”).
C
Within a few months of the October 1, 2017 massacre
in Las Vegas, reconsideration of bump-stock-type devices
began. The Department of Justice issued an Advanced No-
tice of Proposed Rulemaking on December 26, 2017, to get
“information and comments from the public and industry
regarding the nature and scope of the market for” “certain
devices, commonly known as ‘bump fire’ stocks.” Applica-
tion of the Definition of Machinegun to “Bump Fire” Stocks
and Other Similar Devices, 82 Fed. Reg. 60,929, 60,929
(Dec. 26, 2017). About two months later, the President “di-
rect[ed] the Department of Justice to dedicate all available
resources . . . as expeditiously as possible, to propose for
notice and comment a rule banning all devices that turn
legal weapons into machineguns.” Application of the Defi-
nition of Machinegun to “Bump Fire” Stocks and Other
Similar Devices, 83 Fed. Reg. 7,949, 7,949 (Feb. 20, 2018).
Nearly a month after that, the Department issued a
Notice of Proposed Rulemaking that sought “to clarify that
[bump-stock-type devices] are ‘machineguns.’” See Bump-
Stock-Type Devices, 83 Fed. Reg. 13,442, 13,442 (Mar. 29,
2018). On December 26, 2018, the Department completed
its process of “reexamining” its 2008–17 decisions and is-
sued the Final Rule, which adopted new regulations, with
an effective date of March 26, 2019. 83 Fed. Reg. at 66,514,
66,520–21, 66,553–54.
The regulations specifically interpret one phrase and
one term in the detailed statutory definition of “ma-
chinegun.” Id. at 66,553–54; see also 27 C.F.R. §§ 447.11,
478.11, 479.11. Thus, codifying the 2006 definition from
the Akins Accelerator proceeding, the regulations define
the phrase “single function of the trigger” as “a single pull
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MCCUTCHEN v. UNITED STATES 11
of the trigger and analogous motions.” 83 Fed. Reg. at
66,553–54. The regulations also newly define the term “au-
tomatically”—to mean “functioning as the result of a self-
acting or self-regulating mechanism that allows the firing
of multiple rounds through a single function of the trigger.”
Id. at 66,553. The regulations also make clear that, under
those definitions, bump-stock-type devices, as specifically
defined in the regulations (quoted supra), are “ma-
chineguns.” Id. at 66,553–54. The Department explained
that the two adopted definitions were the “best interpreta-
tion” of the statutory definition of “machinegun.” Id. at
66,514, 66,517–18, 66,521. It added that, although the “fi-
nal rule reflects the public safety goals of the NFA and
GCA,” id. at 66,522, “[t]he bump-stock-type device rule is
not a discretionary policy decision based upon a myriad of
factors that the agency must weigh, but is instead based
only upon the functioning of the device and the application
of the relevant statutory definition,” id. at 66,529.
The Final Rule’s consequence was that individuals
would be subject to “criminal liability only for possessing
bump-stock-type devices after the effective date of [this]
regulation”—March 26, 2019. Id. at 66,514, 66,525; see
also, e.g., id. at 66,525 (“The rule would criminalize only
future conduct, not past possession of bump-stock-type de-
vices that ceases by the effective date of this rule.”). To
avoid liability, possessors of bump-stock-type devices had
to destroy their devices or abandon them at an ATF office
by March 26, 2019. Id. at 66,549 (describing “[d]isposal”
options); see also, e.g., id. at 66,514–15, 66,530, 66,539,
66,543.
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12 MCCUTCHEN v. UNITED STATES
II
On December 26, 2018, plaintiffs sued the United
States in the Claims Court. See J.A. 22–30 (Complaint). 3
McCutchen and Paducah possessed bump-stock-type de-
vices before the publication of the Rule and destroyed those
devices before the Rule’s effective date. J.A. 23–24, ¶¶ 10–
11; McCutchen, 145 Fed. Cl. at 45 (citing ECF No. 12).
The government moved to dismiss the complaint for
failure to state a claim under Rule 12(b)(6), and the Claims
Court granted the motion. See McCutchen, 145 Fed. Cl. at
45. In reaching that result, the court determined that the
Final Rule did not effect a taking for public use because
ATF acted “pursuant to its police power.” Id. at 51. The
Claims Court also concluded that plaintiffs’ claim of a phys-
ical taking failed because the term “take[]” does not cover
a regulation compelling dispossession of property by re-
quiring the owner to destroy the property (or else surren-
der it to the government) and that plaintiffs’ alternative
claim of total elimination of value failed because personal
(not real) property is “subject to pervasive government reg-
ulation.” Id. at 53–55. Finally, the court determined that
plaintiffs “waived” any argument for a taking under the
flexible takings standard governing use restrictions and, in
any event, could not show such a taking. Id. at 55–57.
Plaintiffs timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
III
We review the grant of a motion to dismiss de novo.
Prairie County v. United States, 782 F.3d 685, 688 (Fed.
Cir. 2015). “To survive a motion to dismiss, a complaint
3 Plaintiffs sought certification of a class. J.A. 26,
¶ 26. The Claims Court dismissed the complaint under
Rule 12(b)(6) without ruling on class certification.
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MCCUTCHEN v. UNITED STATES 13
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may con-
sider “documents incorporated into the complaint by refer-
ence, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). “Whether a taking has occurred is a
question of law based on factual underpinnings.” Caquelin
v. United States, 959 F.3d 1360, 1366 (Fed. Cir. 2020).
A
The Takings Clause of the Fifth Amendment provides
that “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amend. V. Tak-
ings have been classified in various ways. For example,
some involve “physical appropriations” and some “use re-
strictions.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063,
2071–72 (2021). Categorical rules have generally applied
to the former category. Id. at 2071. Use restrictions gen-
erally are subject to the “flexible test developed in [Penn
Central Transportation Co. v. City of New York, 438 U.S.
104 (1978)],” see Cedar Point, 141 S. Ct. at 2072, although
use restrictions that deprive a landowner of “all economi-
cally beneficial or productive use of land” have been
deemed a categorical taking, Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1015, 1019 (1992). On appeal, plaintiffs
pursue only physical-appropriation and Lucas categorical-
taking contentions. See McCutchen Opening Br. at 34–39,
39 n.9 (not making Penn Central contention).
We do not reach the grounds on which the Claims
Court relied. In particular, we do not decide under what
circumstances a measure that newly bars possession of per-
sonal property (as opposed to restricting a use of property)
and that serves a “police power” purpose (and is constitu-
tionally authorized for the federal government) is not a
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14 MCCUTCHEN v. UNITED STATES
“taking,” and thus requires no compensation. 4 Nor do we
decide whether mandating permanent dispossession by or-
dering destruction of personal property cannot be a “phys-
ical taking,” even if the government-specified alternative to
destruction is surrender to the government and the man-
date is backed by government remedies of seizure and for-
feiture for a willful violation as well as criminal remedies
for a knowing violation.
We do not resolve substantial questions raised by those
issues. For example, the Supreme Court has said that the
Takings Clause both bars takings that are not for a “public
use” and requires payment for takings that are for such a
use, see Kelo v. City of New London, 545 U.S. 469, 480
(2005); Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
240 (1984), and it has also said that “[t]he ‘public use’ re-
quirement is . . . coterminous with the scope of a sover-
eign’s police powers,” Midkiff, 467 U.S. at 240; see also
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984).
Under those premises, the question arises: If a “police
power” justification for a measure means that there is no
taking, what government acts would fall into the category
of takings that the Clause permits (because the act is for a
“public use,” i.e., within the “sovereign’s police powers”) but
only upon payment of just compensation? And if the “police
power” doctrine is to be cabined to some subset of police
powers, as the Claims Court suggested might be necessary,
4 We have recognized that a “police power” rationale,
where the federal government is concerned, must be con-
sidered within the context of constitutional authorization
of particular powers. See, e.g., Rose Acre Farms, Inc. v.
United States, 373 F.3d 1177, 1191–92 & n.10 (Fed. Cir.
2004); Florida Rock Indus., Inc. v. United States, 18 F.3d
1560, 1568 n.17 (Fed. Cir. 1994); Allied-Gen. Nuclear
Servs. v. United States, 839 F.2d 1572, 1576 (Fed. Cir.
1988).
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MCCUTCHEN v. UNITED STATES 15
145 Fed. Cl. at 51, and the government suggested at oral
argument, Oral Arg. at 48:42–52:53 (referring without def-
inition to “core police powers”), the questions arise: What
would that cabining be, what ground would it rest on, and
how would it address recognized challenges, among them
challenges of workable line-drawing? See Lucas, 505 U.S.
at 1024, 1026; Midkiff, 467 U.S. at 239–40.
These and other questions would be unavoidable were
we to address the Claims Court’s rationales. We have no
precedent that is so on point—involving facts and holdings
so close to those presented here—that we could justifiably
apply the rationales without extensive exploration of the
doctrinal issues. Notably, the main authorities from this
court relied on by the Claims Court for its police-power
analysis involved government dispossessions of personal
property that rested on specific government authority that
long predated the possession of the personal property at is-
sue. See, e.g., Kam-Almaz v. United States, 682 F.3d 1364,
1372 (Fed. Cir. 2012) (evidentiary seizure at airport upon
entry from overseas, exercising the “government’s power to
police the border”); AmeriSource Corp. v. United States,
525 F.3d 1149, 1150, 1153 (Fed. Cir. 2008) (seizure of drugs
for use in criminal prosecutions); Acadia Tech., Inc. v.
United States, 458 F.3d 1327, 1328–29 (Fed. Cir. 2006) (sei-
zure and forfeiture of goods entering country with counter-
feit trademarks). Reviewing the Claims Court’s rationales
would call for extensive analysis to decide how far beyond
such circumstances a “police power” rationale properly ap-
plies and whether it properly reaches this case. Cf. Cedar
Point, 141 S. Ct. at 2079 (discussing “longstanding back-
ground restrictions on property rights” including “back-
ground limitations” of “traditional common law
privileges”).
We resolve the case on a threshold ground that differs
from, though is related to, the Claims Court’s grounds—
one that involves the preexisting-law circumstance that
was present in the just-cited cases. Plaintiffs’ takings
Case: 20-1188 Document: 44 Page: 16 Filed: 10/01/2021
16 MCCUTCHEN v. UNITED STATES
claim depends on the “threshold matter” of whether they
have “established a property interest for purposes of the
Fifth Amendment” against the government action.
Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377
(Fed. Cir. 2008); see also Stop the Beach Renourishment,
Inc. v. Florida Dep’t of Envt’l Prot., 560 U.S. 702, 715 (2010)
(plurality) (“If a legislature or a court declares that what
was once an established right of private property no longer
exists, it has taken that property, no less than if the State
had physically appropriated it or destroyed its value by
regulation.” (second emphasis added)). “[T]o have a cause
of action for a Fifth Amendment taking, the plaintiff must
point to a protectable property interest that is asserted to
be the subject of the taking.” Palmyra Pacific Seafoods,
LLC v. United States, 561 F.3d 1361, 1364 (Fed. Cir. 2009);
see also, e.g., Gadsden Indus. Park, LLC v. United States,
956 F.3d 1362, 1368 (Fed. Cir. 2020) (“The plaintiff in a
takings case bears the burden to demonstrate a protectable
property interest.”); American Bankers Ass’n v. United
States, 932 F.3d 1375, 1384–85 (Fed. Cir. 2019) (“To state
a claim for a taking under the Fifth Amendment, a plaintiff
must identify a legally cognizable property interest.”); Wy-
att v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)
(“It is axiomatic that only persons with a valid property in-
terest at the time of the taking are entitled to compensa-
tion.”); Alimanestianu v. United States, 888 F.3d 1374,
1380 (Fed. Cir. 2018); Sharifi v. United States, 987 F.3d
1063, 1068 (Fed. Cir. 2021). 5
5 Unlike Judge Wallach, we see no basis for limiting
this general threshold aspect of takings analysis, concern-
ing the property right alleged to have been taken, to the
particular type of government activity—a land-use re-
striction that deprives a landowner of all economically ben-
eficial or productive use of the land—that was at issue in
Lucas.
Case: 20-1188 Document: 44 Page: 17 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 17
As explained next, we conclude that, given the preex-
isting federal statutory prohibition on possession or trans-
fer of “machineguns,” 18 U.S.C. § 922(o), subject to a valid
implementation by the Attorney General, plaintiffs lacked
a property right in what they allege was taken—continued
possession or transferability of their bump-stock-type de-
vices.
B
“[P]roperty interests . . . are created and their dimen-
sions are defined by existing rules or understandings that
stem from an independent source.” Ruckelshaus, 467 U.S.
at 1001 (cleaned up); see also Phillips v. Washington Legal
Found., 524 U.S. 156, 164 (1998) (similar). Here, we as-
sume that, as a matter of state law standing alone, plain-
tiffs had property rights in the personal property at issue.
But “the government does not take a property interest
when it merely asserts a ‘pre-existing limitation upon the
[property] owner’s title.’” Cedar Point, 141 S. Ct. at 2079
(quoting Lucas, 505 U.S. at 1028–29). As we have ex-
plained, “[t]he Supreme Court in Lucas made clear that
property interests are acquired subject to ‘background
principles’ of law, and that limitations on property rights
that otherwise would effect a categorical taking are permis-
sible if they ‘inhere in the title itself.’” Bair v. United
States, 515 F.3d 1323, 1327 (Fed. Cir. 2008) (quoting Lucas,
505 U.S. at 1029); see also A & D Auto Sales, Inc. v. United
States, 748 F.3d 1142, 1152–53 (Fed. Cir. 2014) (explaining
the principle). And valid preexisting federal-law limita-
tions on what otherwise would be state-law property rights
are among the limitations that may inhere in title so as to
limit compensable property rights. See Bair, 515 F.3d at
1329 (explaining that “a federal statute or authority can
constitute a ‘background principle’ that inheres in the title
to property interests arising after its enactment, therefore
precluding a takings claim based on the application of the
statute to those property interests”); see also Dames &
Moore v. Regan, 453 U.S. 654, 674 n.6 (1981) (rejecting
Case: 20-1188 Document: 44 Page: 18 Filed: 10/01/2021
18 MCCUTCHEN v. UNITED STATES
takings claim on this basis); cf. Columbus Reg’l Hosp. v.
United States, 990 F.3d 1330, 1349 (Fed. Cir. 2021) (reject-
ing exaction claim for lack of protected property interest
based on Dames & Moore and American Bankers Ass’n).
In this case, the federal-law prohibition on possession
and transfer, together with a congressional grant of imple-
mentation authority, predated the existence, let alone
plaintiffs’ possession, of the bump-stock-type devices that
plaintiffs were compelled to destroy or surrender. 6 That
prohibition is a very specific one, defined in terms of the
physical operation of particular devices, not in terms
simply of a broadly stated goal. The latter situation raises
issues not presented here. See Preseault v. United States,
100 F.3d 1525, 1537–38 (Fed. Cir. 1996) (en banc); see also
Bair, 515 F.3d at 1330 (explaining this court’s Preseault
conclusion that “broad general legislation authorizing a
federal agency to engage in future regulatory activity, did
not effectively limit the property right” (cleaned up)). And
the Final Rule is an interpretation of the text of that spe-
cific statutory prohibition (in context, of course), not an ex-
ercise of discretion to act in pursuit of a broadly stated
statutory goal.
Moreover, plaintiffs accept that the Final Rule’s imple-
mentation of the preexisting prohibition is an authorized
and legally valid interpretation of the statutory prohibi-
tion, making no argument to the contrary. For that reason,
and in light of our precedents, we accept that premise. See
Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352
(Fed. Cir. 2001) (“[I]n a takings case we assume that the
underlying governmental action was lawful . . . .”); Rith
6 In at least this respect, the present case differs crit-
ically from Maryland Shall Issue, Inc. v. Hogan, 963 F.3d
356 (4th Cir. 2020), which involved a state law enacted af-
ter the creation and acquisition of the property at issue
(there, bump-stock-type devices as well). Id. at 359–60.
Case: 20-1188 Document: 44 Page: 19 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 19
Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed.
Cir. 2001) (stating that a plaintiff must “litigate its takings
claim on the assumption that the administrative action
was both authorized and lawful”); see also St. Bernard Par.
Gov’t v. United States, 887 F.3d 1354, 1360 (Fed. Cir. 2018);
Acadia, 458 F.3d at 1330–31; Lion Raisins, Inc. v. United
States, 416 F.3d 1356, 1369–70 (Fed. Cir. 2005); Del-Rio
Drilling Programs, Inc. v. United States, 146 F.3d 1358,
1362 (Fed. Cir. 1998); Crocker v. United States, 125 F.3d
1475, 1476 (Fed. Cir. 1997).
The accepted validity of the Final Rule as an interpre-
tation of the preexisting statutory prohibition on posses-
sion and transfer must, at least in this case, rest on one of
three premises: (1) the interpretive-deference doctrine of
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), is inapplicable, and the Final
Rule is valid as the best interpretation of the statutory pro-
hibition; (2) Chevron applies and the Final Rule is valid at
Step 1, so that the statutory prohibition unambiguously re-
quires the interpretation articulated in the Final Rule; or
(3) Chevron applies and the Final Rule is valid at Step 2,
so that it is (merely) one reasonable interpretation of the
statutory prohibition. We do not decide which possibility
would govern in a determination of the validity of the Final
Rule (which we assume); in particular, we do not decide
whether 18 U.S.C. § 922(o), to which criminal penalties ap-
ply if the violation is knowing, is subject to Chevron. Under
any of these three possibilities, we hold, based on the preex-
isting federal law, that plaintiffs lack a property right in
continued possession or transferability of the devices at is-
sue. We first address the legal bases for so concluding and
then explain why, in this case, the ATF classification rul-
ings between 2008 and 2017 do not support a different con-
clusion.
Case: 20-1188 Document: 44 Page: 20 Filed: 10/01/2021
20 MCCUTCHEN v. UNITED STATES
1
The analysis of the first two possibilities is particularly
simple. If Chevron is inapplicable, validity entails that the
Final Rule’s interpretation is the “best interpretation” of 18
U.S.C. § 922(o), with its incorporated “machinegun” term,
as defined in 26 U.S.C. § 5845(b). See Chudik v. Hirshfeld,
987 F.3d 1033, 1039 (Fed. Cir. 2021) (“Where the Chevron
framework is inapplicable, we determine the best interpre-
tation of the statute for ourselves, while giving the agency’s
position such weight as warranted under [Skidmore v.
Swift & Co., 323 U.S. 134, 139–40 (1944)].” (citations and
internal quotation marks omitted)). Similarly, if Chevron
applies but validity is resolved at Chevron Step 1, then va-
lidity entails that the Final Rule’s interpretation is the un-
ambiguous meaning of 18 U.S.C. § 922(o). In either event,
the preexisting statute itself, properly understood, barred
the possession or transfer at issue. In these circumstances,
the bar always limited plaintiffs’ title, and plaintiffs never
had a property right against government assertion of the
duty to destroy the devices at issue or surrender them. See
Hurtado v. United States, 410 U.S. 578, 588 (1973) (“[T]he
Fifth Amendment does not require that the Government
pay for the performance of a public duty it is already
owed.”). 7
7 We do not consider whether, and if so when, it could
make a difference if, before a plaintiff’s possession, some
courts had actually, though incorrectly, adjudicated the
relevant property to be outside a statutory prohibition on
possession. No such adjudication took place with respect
to plaintiffs’ bump-stock-type devices. Relatedly, and rele-
vant to the third possibility (Chevron Step 2) discussed
next, there was no authoritative judicial adoption of a con-
trary meaning from which the agency departed in the Final
Rule. See Nat’l Cable & Telecomms. Ass’n v. Brand X In-
ternet Servs., 545 U.S. 967, 982 (2005) (holding that an
Case: 20-1188 Document: 44 Page: 21 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 21
The remaining possibility for the validity of the Final
Rule’s interpretation—that Chevron applies and the inter-
pretation is valid only at Chevron Step 2—requires some-
what more analysis, but the conclusion is the same. The
additional element is the pair of preexisting statutory
grants of implementation authority to the Executive. 18
U.S.C. § 926(a) (authority to adopt rules “necessary to
carry out” the provisions of chapter 44 of Title 18, U.S.
Code, including 18 U.S.C. § 922(o)); 26 U.S.C. § 7801(a)
(authority over “administration and enforcement” of chap-
ter 53 of Title 26, U.S. Code, including 26 U.S.C. § 5845(b)).
For plaintiffs here, the preexisting limitation on their title
included subjection to future valid agency interpretations
of the possession-and-transfer prohibition (as assumed
here) adopted in the exercise of that authority. In these
circumstances, plaintiffs had no property interest pro-
tected by the compensation requirement of the Takings
Clause against such a valid interpretation when adopted.
By 1986, the Supreme Court’s 1984 decision in Chevron
already made clear that the law, for a statute like 18 U.S.C.
§ 922(o), included the possibility of reasonable resolutions
of ambiguities. For the title-limiting § 922(o) in particular,
the choices were limited as relevant here—focused over-
whelmingly, though not exclusively, on whether 26 U.S.C.
§ 5845(b)’s “single function of the trigger” language, in con-
text, could be understood to mean a single volitional finger
movement of the shooter (which could produce multiple fir-
ings if recoil energy were captured). We cannot say that
plaintiffs had “an established right of private property,”
Stop the Beach, 560 U.S. at 715 (plurality), in the possibil-
ity that the agency would adopt one rather than another of
the limited range of interpretations (both reasonable, by
agency may depart from a prior judicial interpretation that
adopted the best reading of a statute but did not find that
reading to be the unambiguous meaning of the statute).
Case: 20-1188 Document: 44 Page: 22 Filed: 10/01/2021
22 MCCUTCHEN v. UNITED STATES
assumption) relevant here. Cf. Murr v. Wisconsin, 137 S.
Ct. 1933, 1950 (2017) (Roberts, C.J., dissenting) (reasoning
that the Takings Clause protects owners of “established
property rights”). We have no basis for deeming any inter-
est in either possibility a “recognized property interest” re-
quired for a takings claim. Skip Kirchdorfer, Inc. v. United
States, 6 F.3d 1573, 1582 (Fed. Cir. 1993) (emphasis
added). Rather, such possibilities are “contingent and un-
certain,” “speculative or discretionary,” which is not
enough. Bowers v. Whitman, 671 F.3d 905, 913 (9th Cir.
2012) (citation and internal quotation marks omitted); see
also id. (“To determine whether a property interest has
vested for Takings Clause purposes, ‘the relevant inquiry
is the certainty of one’s expectation in the property interest
at issue.’ . . . [I]f the property interest is ‘contingent and
uncertain’ or the receipt of the interest is ‘speculative’ or
‘discretionary,’ then the government’s modification or re-
moval of the interest will not constitute a constitutional
taking.” (citations omitted)); Angelotti Chiropractic, Inc. v.
Baker, 791 F.3d 1075, 1081 (9th Cir. 2015) (same).
At least in the absence of other circumstances not pre-
sent here, we conclude, the preexisting law limiting title
means that plaintiffs had no property interest in continued
possession or transferability that was taken when the Fi-
nal Rule—validly, by assumption here—required destruc-
tion or surrender of their bump-stock-type devices.
2
Only one more circumstance requires discussion, but it
does not support a different conclusion. As the Final Rule
describes, between 2008 and 2017, ATF issued “ten letter
rulings” stating that certain bump-stock-type devices, in-
cluding the ones at issue here, did not meet the statutory
definition of “machinegun” and so were not within the pro-
hibition of 18 U.S.C. § 922(o). 83 Fed. Reg. at 66,517–18.
But those rulings at best gave plaintiffs a property interest
subject to the express reservation to change the devices’
Case: 20-1188 Document: 44 Page: 23 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 23
classification if the agency later determined, as it did, that
the earlier classification was erroneous. Accordingly, those
letter rulings gave plaintiffs no property right in continued
possession or transferability.
ATF’s handbook, which is public, states that a classifi-
cation provided by letter is “subject to change if later deter-
mined to be erroneous” by ATF:
7.2.4 Do you know how ATF would classify
your product? There is no requirement in the law
or regulations for a manufacturer to seek an ATF
classification of its product prior to manufacture.
Nevertheless, a firearms manufacturer is well ad-
vised to seek an ATF classification before going to
the trouble and expense of producing it. Perhaps
the manufacturer intends to produce a GCA fire-
arm but not an NFA firearm. Submitting a proto-
type of the item to ATF’s Firearms Technology
Branch (FTB) for classification in advance of man-
ufacture is a good business practice to avoid an un-
intended classification and violations of the law.
7.2.4.1 ATF classification letters. ATF
letter rulings classifying firearms may gen-
erally be relied upon by their recipients as
the agency’s official position concerning the
status of the firearms under Federal fire-
arms laws. Nevertheless, classifications
are subject to change if later determined to
be erroneous or impacted by subsequent
changes in the law or regulations. To make
sure their classifications are current,
FFLs/SOTs [federal firearms licensees/spe-
cial occupational taxpayers] should stay in-
formed by periodically checking the
information published on ATF’s website,
particularly amendments to the law or
Case: 20-1188 Document: 44 Page: 24 Filed: 10/01/2021
24 MCCUTCHEN v. UNITED STATES
regulations, published ATF rulings, and
“open letters” to industry members.
Handbook § 7.2.4 (italics emphasis added); see also id.
§§ 1.2.6, 1.2.11 (definitions for “FFL” and “SOT”). The
quoted express reservation is present in the 2007 Hand-
book, predating the 2008–17 classification letters at issue,
and remains there today. Id. § 7.2.4.1. Moreover, it was
long ago established that, even for formal approvals of im-
port applications, ATF “must necessarily retain the power
to correct [an] erroneous approval,” consistent with the
widespread recognition of “an implied authority in other
agencies to reconsider and rectify errors even though the
applicable statute and regulations do not expressly provide
for such reconsideration.” Gun S., Inc. v. Brady, 877 F.2d
858, 862–63 (11th Cir. 1989). And the Eleventh Circuit, in
early February 2009, confirmed specifically with respect to
a classification ruling involving an early bump-stock-type
device (the Akins Accelerator) that ATF “had authority to
‘reconsider and rectify’ what it considered to be a classifi-
cation error.” Akins, 312 F. App’x at 200 (quoting Gun S.,
877 F.2d at 862–63).
Given the clear provisional character of a classification
letter, plaintiffs cannot be said to have a compensable prop-
erty right in the classification letters sent between 2008
and 2017, which have been properly corrected (as the as-
sumption of the Final Rule’s validity entails). The Su-
preme Court in Dames & Moore concluded that the
President’s nullification of an attachment against certain
bank assets was not a taking because the pre-attachment
regulations made clear that, in the Court’s words, “any at-
tachment is null and void ‘unless licensed,’ and all licenses
may be revoked at any time.” 453 U.S. at 674 n.6; see also
id. at 663 (quoting regulations). On that basis, the Court
held, the “petitioner did not acquire any ‘property’ interest
in its attachments of the sort that would support a consti-
tutional claim for compensation.” Id. at 674 n.6. We drew
a similar conclusion in American Bankers Ass’n. We held
Case: 20-1188 Document: 44 Page: 25 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 25
that the plaintiffs lacked a property right, for takings pur-
poses, in continuation of a particular statutory dividend
rate on Federal Reserve stock, where Congress had “ex-
pressly reserved” its right to change the dividend rate. 932
F.3d at 1385; cf. Bowen v. Pub. Agencies Opposed to Soc.
Sec. Entrapment, 477 U.S. 41, 55 (1986) (“The provision
simply cannot be viewed as conferring any sort of ‘vested
right’ in the face of precedent concerning the effect of Con-
gress’ reserved power on agreements entered into under a
statute containing the language of reservation.”); Colum-
bus Reg’l Hosp., 990 F.3d at 1349 (concluding that the
plaintiff “never had an unconditional interest” in certain
funds because the government “expressly reserved the
right to recover those funds for certain reasons within a
specific period of time”). For the same reason, plaintiffs
here had no property right in the 2008–17 classification let-
ters, which the agency could correct for error without ef-
fecting a taking.
Although we think that no more is needed to reject
plaintiffs’ reliance on the 2008–17 letters, we note in addi-
tion several aspects of those letters, identified by the Final
Rule itself, that undermine reliance on them as having le-
gal force and effect. They were informal rulings, not pub-
lished on ATF’s website or otherwise and not issued
through the authorized rulemaking process that is pre-
sumed to be the means of securing Chevron deference. See
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016) (“A premise of Chevron is that when Congress
grants an agency the authority to administer a statute by
issuing regulations with the force of law, it presumes the
agency will use that authority to resolve ambiguities in the
statutory scheme.”); United States v. Mead Corp., 533 U.S.
218, 230 (2001) (“[T]he overwhelming number of our cases
applying Chevron deference have reviewed the fruits of no-
tice-and-comment rulemaking or formal adjudication.”).
ATF’s Handbook, besides expressly declaring the revisabil-
ity of a classification letter, defines “ATF Ruling” to
Case: 20-1188 Document: 44 Page: 26 Filed: 10/01/2021
26 MCCUTCHEN v. UNITED STATES
“mean[] a formal ruling published by ATF stating its inter-
pretation of the law and regulations as applied to a specific
set of facts,” Handbook § 1.2.3 (emphasis added), and says,
even as to those Rulings, that they “do not have the force
and effect of law but may be cited as precedent with respect
to substantially similar fact situations,” id. § 1.4.2. All the
more so for the informal classification letters. Further, the
Final Rule suggests that those classification letters were
“procedurally defective” in a sense recognized in Encino as
eliminating Chevron deference—namely, they omitted dis-
cussion that would be needed to meet the requirement of
“adequate reasons.” 136 S. Ct. at 2125; see Final Rule, 83
Fed. Reg. at 66,518 (“Of the rulings issued between 2008
and 2017, ATF provided different explanations for why cer-
tain bump-stock-type devices were not machineguns, but
none of them extensively examined the meaning of ‘auto-
matically.’”).
Plaintiffs point to the D.C. Circuit’s conclusion that the
Final Rule is a “legislative rule.” See Guedes v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 17–
20 (D.C. Cir. 2019). But that ruling does not aid plaintiffs
in their takings claim. It does not adjudicate the essential
question here—whether plaintiffs had a compensable prop-
erty right in continued possession and transferability
when, as assumed here, the Final Rule adopted a valid in-
terpretation of the preexisting ban on possession and
transfer of “machineguns,” as defined.
IV
For the foregoing reasons, we affirm the Claims Court’s
judgment.
The parties shall bear their own costs.
AFFIRMED
Case: 20-1188 Document: 44 Page: 27 Filed: 10/01/2021
United States Court of Appeals
for the Federal Circuit
______________________
ROY LYNN MCCUTCHEN, PADUCAH SHOOTER'S
SUPPLY, INC., INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1188
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01965-EDK, Judge Elaine Kaplan.
______________________
WALLACH, Circuit Judge, concurring in the result.
I agree we should affirm the Court of Federal Claims’
decision. I do not, however, agree with the majority’s rea-
soning and concur as to the result only. I believe the “in-
here in title” exception, set forth in Lucas, is not the proper
vehicle to ascertain whether Mr. McCutchen and Paducah
failed to state a compensable takings claim. That exception
may inadvertently grant protections reserved to real prop-
erty, and limited instances of personal property under ex-
traordinary circumstances, to dangerous and unusual
weapons. I write separately to explain why the Court of
Federal Claims correctly concluded that the Bump Stock
Case: 20-1188 Document: 44 Page: 28 Filed: 10/01/2021
2 MCCUTCHEN v. UNITED STATES
Rule was not a compensable taking under the police powers
doctrine.
I. PROCEDURAL HISTORY
In December 2018, Mr. McCutchen and Paducah filed
their Complaint in the Court of Federal Claims. J.A. 22;
see J.A. 22–30 (Complaint). Paducah is a registered fire-
arms dealer and retailer of “firearm parts and accessories.”
J.A. 24. Prior to the Bump Stock Rule, it “had a property
interest in multiple bump-stock devices.” J.A. 24.
Mr. McCutchen previously purchased multiple bump
stocks “for both his personal use and for economic gain.”
J.A. 23. The Complaint alleged that the Bump Stock Rule
constitutes a compensable Fifth Amendment taking of
bump stocks as it “destroyed all economic value and all in-
vestment-backed expectations in [parties’] bump-stocks.”
J.A. 29. The Government moved to dismiss Paducah’s
Amended Complaint for failure to state a claim on which
relief can be granted. J.A. 31, 37 (Motion to Dismiss).
The Court of Federal Claims dismissed Appellants’
Amended Complaint. See McCutchen v. United States, 145
Fed. Cl. 42, 45 (2019). The Court of Federal Claims con-
cluded that Appellants had “failed to state a takings claim,”
because its “bump-stock devices were not taken for a public
use, but were instead prohibited through the government’s
exercise of its police power” and, further, “[e]ven if the po-
lice power doctrine were inapplicable,” it “would nonethe-
less dismiss the complaint because there [wa]s no merit to
[Appellants’] argument that the [Bump Stock] [R]ule ef-
fected a categorical taking of [its] bump-stock devices.” Id.
at 53. The Court of Federal Claims concluded that Appel-
lants suffered neither a physical taking, id. at 53–55, nor a
regulatory taking of their bump stocks, id. at 55–56 (noting
that Appellants had failed to raise any regulatory taking
arguments and that, “even if the argument were not
waived, [Appellants] ha[d] failed to state a regulatory tak-
ings claim”).
Case: 20-1188 Document: 44 Page: 29 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 3
There is no dispute that the Court of Federal Claims
correctly concluded that Mr. McCutchen and Paducah
failed to state a compensable takings claim. However, as I
explain below, I do not agree with the majority’s reasoning
that the Lucas “inhere in title” exception should extend to
dangerous and unusual weapons. See Maj. Op. at 4, 16–17.
In my view, the police power doctrine supports affirming
the decision of the Court of Federal Claims. For the rea-
sons which follow, I agree with the Court of Federal Claims
that the Bump Stock Rule was “an exercise of police power
and did not effect a taking for public use.” McCutchen, 145
Fed. Cl. at 51 (capitalization normalized).
II. THE “INHERE IN TITLE” EXCEPTION IS NOT THE PROPER
VEHICLE TO ASCERTAIN WHETHER MR. MCCUTCHEN AND
PADUCAH FAILED TO STATE A COMPENSABLE TAKINGS
CLAIM
Lucas holds that a “categorical” takings analysis is ap-
propriate “where regulation denies all economically benefi-
cial or productive use of land.” Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1015 (1992); see id. at 1015–16 (“As
we have said on numerous occasions, the Fifth Amendment
is violated when land-use regulation . . . denies an owner
economically viable use of his land.” (emphasis in original)
(internal quotation marks and citation omitted)). The
cases in which the Supreme Court has applied Lucas’s total
takings rule have involved real property, and Circuit
Courts have not reached a clear consensus on how broadly
to apply Lucas’s per se rule. See Murr v. Wisconsin, 137 S.
Ct. 1933, 1943 (2017) (“By declaring that the denial of all
economically beneficial use of land constitutes a regulatory
taking, Lucas stated what it called a ‘categorical’ rule.”);
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.
Agency, 535 U.S. 302, 330 (2002) (“[O]ur holding [in Lucas]
was limited to ‘the extraordinary circumstance when no
productive or economically beneficial use of land is permit-
ted.’” (emphasis in original) (quoting Lucas, 505 U.S. at
1017)); A & D Auto Sales, Inc. v. United States, 748 F.3d
Case: 20-1188 Document: 44 Page: 30 Filed: 10/01/2021
4 MCCUTCHEN v. UNITED STATES
1142, 1151–52 (Fed. Cir. 2014) (noting the question and
collecting cases).
However, Lucas understands its categorical rule to be
an application of the Supreme Court’s prior land-use regu-
lation cases, see Lucas, 505 U.S. at 1015 (citing Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980), abrogated by
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005); Nollan
v. California Coastal Comm’n, 483 U.S. 825, 834 (1987);
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.
470, 495 (1987); Hodel v. Virginia Surface Mining & Recla-
mation Ass’n., Inc., 452 U.S. 264, 295–96 (1981)), and lim-
ited by “background principles of nuisance and property
law that prohibit [specific] uses” of real property, id. at
1031. As such, “a landowner may not recover for a taking
when the government forbids a use that is a nuisance at
common law.” A & D Auto Sales, 748 F.3d at 1152 (citing
Lucas, 505 U.S. at 1029–30). “The law of nuisance inheres
in the landowner’s title, so there is no taking if a use re-
striction falls within the scope of nuisance law.” Id. (citing
Lucas, 505 U.S. at 1029–30).
As such, Lucas itself expressly declines to extend its
reasoning to the regulation of personal property. Lucas,
505 U.S. at 1028; see Horne v. Dep’t of Agric., 576 U.S. 350,
361–62 (2015) (clarifying that Lucas’s per se regulatory
taking analysis applies to real property). Lucas contrasts
real property, which it concludes is subject to its per se reg-
ulatory taking rule, with “personal property,” which is not
subject to the same per se rule. Lucas, 505 U.S. at 1028;
see Horne, 576 U.S. at 361–62. The contrast makes sense,
as real property is afforded greater protections than per-
sonal property. See Lucas, 505 U.S. at 1027–28 (“[H]e
ought to be aware of the possibility that new regulation
might . . . render his property economically worthless” “by
reason of the [government’s] traditionally high degree of
control over commercial dealings[.]” (citing Andrus v. Al-
lard, 444 U.S. 51, 66–67 (1979))); see Andrus, 444 U.S. at
66–67 (finding no regulatory takings even where
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MCCUTCHEN v. UNITED STATES 5
“regulations . . . prevent[ed] the most profitable use of [the
owners’ personal] property”).
Bearing in mind that Lucas warns that personal prop-
erty owners “ought to be aware of the possibility that new
regulation might . . . render [their] property economically
worthless” “by reason of the [government’s] traditionally
high degree of control over commercial dealings,” Lucas,
505 U.S. at 1027–28, this court has “applied the categorical
test to personal property [only] on occasion,” A & D Auto
Sales, 748 F.3d at 1151. Accordingly, this court has cau-
tiously examined the “inhere title” exception in cases in-
volving non-physical personal property, specifically, liens,
permits, or higher statutory dividend rates. See American
Bankers Ass’n v. United States, 932 F.3d 1375, 1384–86
(Fed. Cir. 2019) (concluding that plaintiffs had no property
interest in a higher statutory dividend rate on Federal Re-
serve stock); A & D Auto Sales, 748 F.3d at 1151–52 (de-
clining to decide the issue of whether Lucas should extend
to “intangible [personal] property”); Bair v. United States,
515 F.3d 1323, 1327 (Fed. Cir. 2008) (concluding that the
“inhere in title” exception did apply to federal statutory
processor liens); Conti v. United States, 291 F.3d 1334,
1343 (Fed. Cir. 2002)(concluding that a swordfishing per-
mit did not constitute a cognizable property interest).
I fear that the majority has overread our case law by
extending Lucas’s per se regulatory taking analysis to dan-
gerous and unusual weapons; here, bump stocks. The ma-
jority cites cases that appear inapplicable here; those cases
address non-physical personal property—not physical per-
sonal property, like bump stocks. See Maj. Op. at 15–18
(citing Dames & Moore v. Regan, 453 U.S. 654, 674 n.6
(1981) (discussing whether the petitioner acquired a prop-
erty interest in its attachment against foreign banks’ as-
sets); American Bankers Ass’n, 932 F.3d 1375, 1384–85
(discussing whether plaintiff had a property interest in a
higher statutory dividend rate); A & D Auto Sales, 748 F.3d
at 1152–53 (discussing whether Lucas should extend to
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6 MCCUTCHEN v. UNITED STATES
“intangible [personal] property”); Bair, 515 F.3d at 1327(discussing whether plaintiff had property interest in stat-
utory processor liens)). Additionally, the majority does not
cite a single case where a court concluded that a claimant
did not have a cognizable property interest in physical
property. See Maj. Op. at 15–18. Such an overextension of
our case law may inadvertently afford dangerous and unu-
sual weapons special protections that are reserved to real
property and limited instances of personal property, as dis-
cussed in Lucas. Consequently, in my opinion, the “inhere
in title” exception is an inappropriate vehicle to ascertain
whether Mr. McCutchen and Paducah failed to state a com-
pensable takings claim. Instead, for the reasons to follow,
I would affirm under the police powers doctrine.
III. MR. MCCUTCHEN AND PADUCAH’S TAKINGS CLAIMS ARE
PRECLUDED BY THE POLICE POWERS DOCTRINE
The Court of Federal Claims concluded that the Bump
Stock Rule “did not effect a taking for public use” under the
police powers doctrine. McCutchen, 145 Fed. Cl. at 51 (cap-
italization normalized). The Court of Federal Claims ex-
plained that “it is well established that there is no
[compensable] taking for ‘public use’ where,” as here, “the
government acts pursuant to its police power” to “criminal-
ize[] or otherwise outlaw[] the use or possession of property
that presents a danger to the public health and safety.” Id.
(citing Keystone Bituminous, 480 U.S. at 491; Miller v.
Schoene, 276 U.S. 272, 279–80 (1928); Mugler v. Kansas,
123 U.S. 623, 668–69 (1887); AmeriSource Corp. v. United
States, 525 F.3d 1149, 1153 (Fed. Cir. 2008)).
Mr. McCutchen and Paducah argue that the Court of Fed-
eral Claims “erred” when it “determin[ed] that [their] prop-
erty was not taken ‘for public use’” under the police powers
doctrine. Appellants’ Br. 9. I disagree with Appellants.
“Long ago” the Supreme Court “recognized that ‘all
property in this country is held under the implied obliga-
tion that the owner’s use of it shall not be injurious to the
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MCCUTCHEN v. UNITED STATES 7
community’” and that “the Takings Clause did not trans-
form that principle to one that requires compensation
whenever the [government] asserts its power to enforce”
that implied obligation. Keystone Bituminous, 480 U.S. at
491–92 (quoting Mugler, 123 U.S. at 665). Accordingly, cer-
tain government actions in furtherance of the health,
safety, and general welfare of the public have a “special
status” within our takings jurisprudence. Id. at 491& n.20;
see id. at 491 n.20 (explaining that “since no individual has
a right to use his property so as to create a nuisance or oth-
erwise harm others, the [government] has not ‘taken’ any-
thing when it asserts its power to enjoin the nuisance-like
activity”); see also Ruckelshaus, 467 U.S. at 1005 (conclud-
ing that a health and safety regulation’s lack of “interfer-
ence with reasonable investment-backed expectations” was
“so overwhelming . . . that it disposes of the taking ques-
tion” (internal quotation marks and citation omitted)).
Courts have sometimes described such actions as a “legiti-
mate exercise of the government’s police power,” rather
than a compensable taking, Murr, 137 S. Ct. at 1947, or as
non-compensable under the “police power doctrine,” Akins
v. United States, 82 Fed. Cl. 619, 622 (2008); see Amer-
iSource, 525 F.3d at 1153. 1 Rather than being
1 This nomenclature has its roots in the Supreme
Court’s early police power cases, prior to the advent of its
regulatory takings jurisprudence, when a regulation pur-
suant to the government’s “police power” did not effect a
compensable taking. Murr, 137 S. Ct. at 1942–47; see
Horne, 576 U.S. at 360 (“Prior to th[e Supreme] Court’s de-
cision in [Pennsylvania Coal Co. v. Mahon, 260 U.S. 393(1922)], the Takings Clause was understood to provide pro-
tection only against a direct appropriation of property—
personal or real.”). In Pennsylvania Coal, the Supreme
Court held that “[t]he general rule” is that “if regulation
goes too far it will be recognized as a taking.” 260 U.S. at
Case: 20-1188 Document: 44 Page: 34 Filed: 10/01/2021
8 MCCUTCHEN v. UNITED STATES
compensable, “loss due to an exercise of the police power is
properly treated as part of the burden of common citizen-
ship.” Kimball Laundry Co. v. United States, 338 U.S. 1, 5
(1949); see Andrus, 444 U.S. at 65 (“The Takings Clause . . .
preserves governmental power to regulate, subject only to
the dictates of justice and fairness.” (internal quotation
marks and citation omitted)). For example, “[c]ourts have
consistently held that [the government] need not provide
compensation when it diminishes or destroys the value of
property by stopping illegal activity or abating a public nui-
sance.” Keystone Bituminous, 480 U.S. at 492 n.22; see Ap-
polo Fuels, Inc. v. United States, 381 F.3d 1338, 1347 (Fed.
Cir. 2004). Similarly, “[w]hen property has been seized
pursuant to the criminal laws or subjected to in rem forfei-
ture proceedings, such deprivations are not [compensable]
takings.” Acadia Tech., Inc. v. United States, 458 F.3d
1327, 1331 (Fed. Cir. 2006) (internal quotation marks omit-
ted) (citing Bennis v. Michigan, 516 U.S. 442, 452–53
(1996); Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 680 (1974); Van Oster v. Kansas, 272 U.S. 465,
468 (1926)).
The Court of Federal Claims correctly concluded that
the Bump Stock Rule was not a compensable taking under
the police powers doctrine. Congress enacted the National
Firearms Act (“NFA”) and Gun Control Act (“GCA”) to reg-
ulate “lethal weapons,” particularly machine guns, “[that]
could be used readily and efficiently by criminals.” H.R.
REP. NO. 83-1337, at A395 (1954); see GCA, Pub. L. 90-618,
sec. 101, 82 Stat. 1213 (1968); S. REP. NO. 89-1866, at 1
(1966); see also National Firearms Act: Hearing on H.R.
9066 Before the H. Comm. On Ways and Means, 73d Cong.
415; see Lucas, 505 U.S. at 1026 (explaining that in Penn-
sylvania Coal, the Supreme Court established that there
are “limits to the noncompensable exercise of the police
power”).
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MCCUTCHEN v. UNITED STATES 9
2d Sess. 4–6 (1934) (statement of the Hon. Homer S. Cum-
mings Attorney General of the United States) (“A machine
gun, of course, ought never to be in the hands of any private
individual. There is not the slightest excuse for it . . . and
we must, if we are going to be successful in this effort to
suppress crime in America, take these machine guns out of
the hands of the criminal class.”); H.R. REP. NO. 99-495, at
1–2 (1986) (explaining that the Firearm Owners Protection
Act was intended to amend certain provisions of the Gun
Control Act to, inter alia “enhance the ability of law en-
forcement to fight violent crime,” including placing “[c]on-
trols [on] all parts designed or intended to be use for
converting weapons into machine guns”). The Bump Stock
Rule, “[b]y making clear that [bump stocks] are subject to
the restrictions that the NFA and GCA place on ma-
chineguns, . . . reflect[ed] the public safety goals of those
statutes.” Bump-Stock-Type Devices, 83 Fed. Reg. 66,514,
66,520 (Dec. 26, 2018) (“Bump-Stock Rule”). In particular,
the Bump Stock Rule sought to “ameliorate th[e] threat” to
the public posed by bump stocks, Bump-Stock-Type De-
vices, 83 Fed. Reg. 13,442, 13,447 (Mar. 29, 2018) (“No-
tice”), as devices “designed to be affixed to semiautomatic
long gun . . . for the express purpose of allowing ‘rapid fire’
operation,” Bump Stock Rule, 83 Fed. Reg. at 66,516; see
id. at 66,520 (“[A] bump-stock-type device combined with a
semiautomatic firearm can empower a single individual to
take many lives in a single incident.”); Notice, 83 Fed. Reg.
at 13,447 (explaining that the Las Vegas mass shooting
“made many individuals aware that these devices exist—
potentially including persons with criminal or terrorist in-
tentions—and made their potential to threaten public
safety obvious”).
Further, the ATF promulgated the Bump Stock Rule
pursuant to its statutory authority to make such regula-
tions necessary to enforce the NFA and GCA. Bump Stock
Rule, 83 Fed. Reg. at 66,515–16; see 18 U.S.C. § 926(a); 26
U.S.C. §§ 7801(a), 7805(a); 28 C.F.R. § 0.130(a)(1)–(2). The
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10 MCCUTCHEN v. UNITED STATES
Bump Stock Rule clarified that bump stocks fall within the
statutory term “machinegun,” because they “convert an
otherwise semiautomatic firearm into a machinegun,” and
therefore, also fall within the criminal prohibition on the
transfer and possession of machine guns. Bump Stock
Rule, 83 Fed. Reg. at 66,514; see id at 66,521 (providing
that the ATF has “initiated this rulemaking to clarify the
regulatory interpretation of the NFA and GCA” and that
“the purpose of th[e Bump Stock R]ule is to clarify that
such devices are machineguns under the NFA”); see also 18
U.S.C. § 922(o); 26 U.S.C. § 5845(b); 27 C.F.R. §§ 447.11,
478.11, 479.11. “[W]illful violation” of this prohibition re-
sults in the “seizure and forfeiture” of the machine gun. 18
U.S.C. § 924(d)(1); see id. § 924(a)(2); 26 U.S.C. § 5872(a)–
(b). Accordingly, in requiring that “possessors of [bump-
stock] devices . . . destroy the devices or abandon them at
an ATF office prior to the effective date of the [Bump Stock
R]ule,” Bump Stock Rule, 83 Fed. Reg. at 66,514, the ATF
acted pursuant to its authority to “administer[] and enforce
the laws related to” firearms, 28 C.F.R. § 0.130(a)(1)–(2);
see 18 U.S.C. § 926(a); 26 U.S.C. §§ 7801(a), 7805(a); 27
C.F.R. §§ 479.181, 479.182—specifically, to enforce the
criminal prohibition on the transfer and possession of ma-
chine guns manufactured after 1986, 18 U.S.C. §§ 922(o),
924(d)(1); see Bump Stock Rule, 83 Fed. Reg. at 66,514.
“[T]he cases authorizing” such government action with-
out compensation are “firmly fixed in the punitive and re-
medial jurisprudence of the country.” Bennis, 516 U.S. at
453 (internal quotation marks and citation omitted). In
promulgating the Bump Stock Rule, the ATF acted pursu-
ant to a well-established regulatory regime and in conso-
nance with a known “limitation on the right to keep and
carry arms”—“the historical tradition of prohibiting the
carrying of ‘dangerous and unusual weapons,’” including
machine guns. District of Columbia v. Heller, 554 U.S. 570,
627 (2008) (citing, inter alia, 4 Commentaries on the Laws
of England 148–49 (1769); State v. Langford, 10 N.C. 381,
Case: 20-1188 Document: 44 Page: 37 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 11
383–84 (1824)) 2; see 18 U.S.C. §§ 922(o), 924(d)(1), 926(a);
26 U.S.C. §§ 7801(a), 7805(a); 27 C.F.R. §§ 479.181,
479.182; 28 C.F.R. § 0.130(a)(1)–(2); see also Bump Stock
Rule, 83 Fed. Reg. at 66,522 (collecting cases and noting
that “lower courts have consistently upheld prohibitions on
machine guns”). Further, in requiring Appellants abandon
or destroy their bump stocks, the ATF acted “under the ex-
ercise of governmental authority other than the power of
eminent domain,” Bennis, 516 U.S. at 452—the govern-
ment’s authority to “seize[] [property] pursuant to . . . crim-
inal laws” and “to condemn contraband . . . goods,” Acadia,
458 F.3d at 1331–32; see 18 U.S.C. §§ 924(a)(2), (d)(1); 26
U.S.C. § 5872(a)–(b); see also Bennis, 516 U.S. at 452–53
(noting the Supreme Court’s “longstanding practice” of nei-
ther requiring compensation for, nor finding unconstitu-
tional, seizures, forfeitures, and abatements of personal
property “to deter illegal activity,” even of an “innocent
owner”); Calero-Toledo, 416 U.S. at 683 (tracing in rem for-
feiture proceedings against contraband personal property
from “[l]ong before the adoption of the Constitution” to
“contemporary [F]ederal and state forfeiture statutes” that
“reach virtually any type of property that might be used in
the conduct of a criminal enterprise”).
“While it is insufficient to avoid” the Takings Clause
“to invoke the ‘police powers’ of the state,” the prohibition
of dangerous and unusual weapons, and the enforcement
of that prohibition through the criminal laws, “is the kind
of exercise of the police power that has repeatedly been
treated as legitimate even in the absence of compensation.”
2 See, e.g., Langford, 10 N.C. at 383–84 (“[W]hen a
man arms himself with dangerous and unusual weapons,
in such a manner as will naturally cause a terror to the
people; which is said always to have been an offence at com-
mon law, and is strictly prohibited by statute.” (citation
omitted)).
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12 MCCUTCHEN v. UNITED STATES
Acadia, 458 F.3d at 1332–33; see Bennis, 516 U.S. at 453;
Calero-Toledo, 416 U.S. at 683. Mr. McCutchen and
Paducah, therefore, lack a compensable takings claim for
their bump stocks against the Bump Stock Rule, because it
is precluded by the police powers doctrine. Accordingly, the
Bump Stock Rule’s requirement that possessors destroy or
relinquish their bump stocks as illegal machine guns is not
a taking of “private property . . . for public use, without just
compensation.” U.S. CONST. amend. V, cl. 4.
Mr. McCutchen and Paducah’s counterarguments are
unpersuasive. First, Appellants argue that the “‘police
powers’ exception” is inapplicable here because the doc-
trine only applies when the “government acts in its enforce-
ment capacity, e.g., when it enforces an existing criminal or
remedial statutory scheme, not when [the] government
acts in its legislative capacity to readjust legal rights.” Ap-
pellant’s Br. 7; see id. at 7–8 (asserting that Guedes held
that the Bump Stock Rule was not an “enforcement action”
but “an exercise of the ATF’s legislative authority to make
new law” (citing Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 920 F.3d 1, 17–21 (D.C. Cir.), judg-
ment entered, 762 F. App’x 7 (D.C. Cir. 2019), and cert. de-
nied, 140 S. Ct. 789 (2020)), 18 (asserting that the “Bennis
line of cases has no bearing on [Mr. McCutchen and
Paducah’s] Fifth Amendment claims” because the ATF, in
requiring they destroy or surrender their bump stocks, was
acting “under its legislative authority to make new law”
(citing Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.
Cir. 1952))). This argument is without merit.
Appellants ignore that the Bump Stock Rule was prom-
ulgated to enforce an existing criminal law—the prohibi-
tion on transfer and possession of machine guns, including
parts designed to convert weapons into a machine gun,
manufactured after 1986. 18 U.S.C. § 922(o); 26 U.S.C.
§ 5845(b); 27 C.F.R. §§ 447.11, 478.11, 479.1126; see Bump
Stock Rule, 83 Fed. Reg. at 66,536–37 (explaining that
“[b]ecause bump-stock-type devices are properly classified
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MCCUTCHEN v. UNITED STATES 13
as ‘machineguns’ under the NFA and GCA, . . . [the] ATF
must regulate them as such” and “does not have the au-
thority to restrict only the future manufacture and sale of
bump-stock-type devices” or “remove the general prohibi-
tion on the transfer and possession of machineguns that
were not lawfully possessed” prior to 1986). Appellants
also fail to recognize that the ATF acted within an estab-
lished regulatory regime, pursuant to delegated and re-
tained discretion, to conclude that Appellants’ bump stocks
“allow a shooter of a semiautomatic firearm to initiate a
continuous firing cycle with a single pull of the trigger” and
to classify Appellants’ bump stocks as illegal machine guns.
Bump Stock Rule, 83 Fed. Reg. at 66,515–16; see id.
at 66,520 (“The reason for the [ATF’s] classification change
is that ATF, upon review . . . believes that bump-stock-type
devices must be regulated because they satisfy the statu-
tory definition of ‘machinegun’ in the NFA and GCA.”); see
also 18 U.S.C. § 926(a); 26 U.S.C. §§ 7801(a), 7805(a); 27
C.F.R. §§ 478.1, 479.1, 489.1; 28 C.F.R. § 0.130(a)(1)–(2);
NFA Handbook §§ 7.2.4, 7.2.4.1; Akins v. United States,
312 F. App’x 197, 200 (11th Cir. 2009); Akins v. United
States, No. 8:08-CV-988-T-26TGW, 2008 WL 11455059, at
*8 (M.D. Fla. Sept. 23, 2008), aff’d, 312 F. App’x 197 (11th
Cir. 2009). Appellants misunderstand that, having classi-
fied bump stocks as illegal machine guns, the ATF acted in
its enforcement capacity when it required Appellants aban-
don or destroy their bump stocks—specifically, to enforce
the criminal prohibition on the possession of illegal ma-
chine guns. Bump Stock Rule, 83 Fed. Reg. at 66,530
(providing that “enforcement of and compliance with” the
Bump Stock Rule requires “possessors of bump-stock-type
devices . . . to dispose of the[ir] devices”), 66,539 (providing
that failure to comply by the “effective date” will result in
“violation of Federal law”), 66,544 (explaining that “this
rulemaking aims to apply Congress’s policy decision to pro-
hibit machineguns”); see 18 U.S.C. §§ 922(o), 924(d)(1); 26
U.S.C. §§ 5872(a)–(b), 7801(a), 7805(a); 27 C.F.R.
§§ 447.63, 478.152, 479.182; 28 C.F.R. § 0.130(a)(1)–(2); cf.
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14 MCCUTCHEN v. UNITED STATES
Appellants’ Br. 15 (agreeing that “[t]he government is not
required to pay compensation for a taking when a property
owner is deprived of his property rights as a consequence
of a government enforcement action.” (citing Bennis, 516
U.S. at 442)).
Second, Mr. McCutchen and Paducah assert that the
Court of Federal Claims erred because “[t]he Supreme
Court’s early ‘police powers’ cases do not defeat the public
use prong of [their] claims.” Appellants’ Br. 11 (citing Mil-
ler, 276 U.S. 272; Mugler, 123 U.S. 623). They argue that
“the ‘harmful or noxious use’ principle,” articulated in the
“Miller and Mugler cases was nothing more than the Su-
preme Court’s early formulation of the police power justi-
fying a regulatory diminution in value of property without
compensation,” id. (citing Lucas, 505 U.S. at 1004), and
therefore inapplicable to the “total[] depriv[ation] of their
property” effected by the Bump Stock Rule, id. at 14. This
argument is without merit.
As an initial matter, the police power doctrine is not
directed to the “public use” prong of our takings analysis.
The police power doctrine is directed to the question of
whether property has been “taken.” Keystone Bituminous,
480 U.S. at 491 n.20. If property has not been taken, then
compensation is not required. See Lingle, 544 U.S. at 536–
37. The public use prong is directed to whether property,
having been taken, was taken for a “public use.” See id. at
543. If property has not been taken for “public use,” then
“[n]o amount of compensation can authorize [the] action.”
Id.; see Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 239
(1984). The police power doctrine is premised “on the sim-
ple theory that since no individual has a right to use his
property so as to create a nuisance or otherwise harm oth-
ers, the [s]tate has not ‘taken’ anything when it asserts its
power to enjoin the nuisance-like activity.” Keystone Bitu-
minous, 480 U.S. at 491 n.20; see Bennis, 516 U.S. at 453;
Acadia, 458 F.3d at 1331. It focuses on specific exercises of
the police power in furtherance of the health, safety, and
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MCCUTCHEN v. UNITED STATES 15
general welfare of the public. Keystone Bituminous, 480
U.S. at 491–92; see Berman v. Parker, 348 U.S. 26, 32
(1954) (explaining that “[p]ublic safety” and “public health”
are “some of the more conspicuous examples of the tradi-
tional application of the police power,” and therefore “they
merely illustrate the scope of the power and do not delimit
it”). In contrast, the public use prong seeks to prevent the
government from taking property “for the purpose of con-
ferring a private benefit on a particular private party.”
Kelo v. City of New London, Conn., 545 U.S. 469, 477
(2005). It focuses broadly on whether a taking is for “public
purpose,” id. at 480, and, therefore, unlike the police pow-
ers doctrine, is “coterminous” with the full “scope of a sov-
ereign’s police powers,” Midkiff, 467 U.S. at 240; see id. at
239 (“An attempt to define [the police powers’] reach or
trace its outer limits is fruitless, for each case must turn on
its own facts.” (quoting Berman, 348 U.S. at 32)); Kelo, 545
U.S. at 483 (“[Supreme Court] public use jurisprudence has
wisely eschewed rigid formulas and intrusive scrutiny in
favor of affording legislatures broad latitude in determin-
ing what public needs justify the use of the takings
power.”).
More substantively, Appellants misunderstand the im-
port of the Supreme Court’s early police power cases to our
analysis here. We do not need to analogize solely from
cases about the state-mandated closure of breweries, see
Mugler, 123 U.S. at 623, and compelled destruction of dis-
eased cedar trees, see Miller, 276 U.S. at 279–80, to con-
clude that the government may ban dangerous and
unusual weapons, see Heller, 554 U.S. at 627, and enforce
that ban without compensation, see Bennis, 516 U.S. at
452–53; Calero-Toledo, 416 U.S. at 683; Acadia, 458 F.3d
at 1331–32. Rather, because the Supreme Court’s takings
jurisprudence has “traditionally been guided” by the rea-
sonable expectations of property owners, we may look to
these early cases to establish that, “[a]s long recognized,
some values are enjoyed under an implied limitation and
Case: 20-1188 Document: 44 Page: 42 Filed: 10/01/2021
16 MCCUTCHEN v. UNITED STATES
must yield to the police power.” Lucas, 505 U.S. at 1027(quoting Pennsylvania Coal, 260 U.S. at 413); see, e.g., Key-
stone Bituminous, 480 U.S. at 490 (explaining that in Mil-
ler, 276 U.S. 272, the Supreme Court concluded that “the
Takings Clause did not require the [state] to compensate
the owners of cedar trees for the value of the trees that the
[s]tate had ordered destroyed,” because “it was clear that
the [s]tate’s exercise of its police power to prevent the im-
pending danger was justified, and did not require compen-
sation”), 491–92 (quoting Mugler, 123 U.S. at 665, for the
proposition that “[l]ong ago it was recognized that ‘all prop-
erty in this country is held under the implied obligation
that the owner’s use of it shall not be injurious to the com-
munity’”); Allied-Gen. Nuclear Servs. v. United States, 839
F.2d 1572, 1576 (Fed. Cir. 1988) (noting that in Keystone
Bituminous “the Supreme Court has dusted off Mugler and
put it back on its pedestal”).
Further, contrary to Appellants’ arguments, the Su-
preme Court’s early police-power cases are not limited to
the “diminution of rights” through “government regulation
of use,” Appellants’ Br. 14, but instead confirm the govern-
ment’s longstanding authority to regulate personal prop-
erty, even to “the destruction of [that] property,” without a
categorical duty to compensate. Samuels v. McCurdy, 267
U.S. 188, 196 (1925). For example, in Samuels, the Su-
preme Court concluded that the seizure of “certain intoxi-
cating liquors” pursuant to a state’s criminal prohibition,
even to “the destruction of property” and disappointment
of a previously legal interest, was not a compensable taking
because the case did “not involve the power of eminent do-
main,” but the “police power.” Id. at 190, 195–96. Simi-
larly, in Omnia Com. Co. v. United States, the Supreme
Court concluded that Federal requisition of a “steel com-
pany’s entire production of steel plate for the year 1918”
was not a compensable taking of another company’s preex-
isting contract to buy that steel, as the “destruction of, or
injury to, property is frequently accomplished without a
Case: 20-1188 Document: 44 Page: 43 Filed: 10/01/2021
MCCUTCHEN v. UNITED STATES 17
‘taking’ in the constitutional sense.” 261 U.S. 502, 507–08
(1923). Thus, the early police power cases support the con-
clusion that “not every destruction or injury to property by
governmental action” is a “‘taking’ in the constitutional
sense,” Armstrong v. United States, 364 U.S. 40, 48 (1960),
but rather may be a non-compensable exercise of the police
power, Lucas, 505 U.S. at 1027 (explaining that “some val-
ues . . . must yield to the police power” (quoting Pennsylva-
nia Coal, 260 U.S. at 413)); Chicago, B. & Q. Ry. Co. v.
Illinois, 200 U.S. 561, 594 (1906) (explaining that the Tak-
ings Clause “is not intended as a limitation of the exercise
of those police powers which are necessary to the tranquil-
ity of every well-ordered community” as “[i]t has always
been held that the legislature may make police regulations,
although they may interfere with the full enjoyment of pri-
vate property, and though no compensation is given” (cita-
tion omitted)); see, e.g., Juragua Iron Co. v. United States,
212 U.S. 297, 305 (1909) (concluding that Takings “princi-
ple[s]” could not “be enforced in respect of [real and per-
sonal] property destroyed by the United States in the
course of military operations for the purpose . . . of protect-
ing the health and lives of its soldiers,” specifically, in the
belief that it would prevent the spread of infectious dis-
ease); Bowditch v. City of Bos., 101 U.S. 16, 18–19 (1879)
(finding no compensable taking for the destruction of prop-
erty to prevent the spread of fire, explaining that “[a]t the
common law every one had the right to destroy real and
personal property, in cases of actual necessity, to prevent
the spreading of a fire” with “the common law adopt[ing]
the principle of the natural law, and find[ing] the right and
the justification in the same imperative necessity”). Ac-
cordingly, the Court of Federal Claims correctly concluded
that the Bump Stock Rule was not a compensable taking
under the police powers doctrine.
IV. CONCLUSION
I would affirm the decision of the Court of Federal
Claims that, “[Mr. McCuthcen and Paducah’s] bump-stock
Case: 20-1188 Document: 44 Page: 44 Filed: 10/01/2021
18 MCCUTCHEN v. UNITED STATES
devices were not taken for a public use, but were instead
prohibited through the government’s exercise of its police
power.” McCutchen, 145 Fed. Cl. at 53. I therefore concur
in today’s result.