the counselor advised this that this will more difficult in the normal course of business because you can't get visual cues from us so i'd ask you to listen carefully for when a judge starts yana could you repeat that when you think the argues and we couldn't find anything that the supreme court has never held that a statutory prohibition on dangerous personal property as opposed to real property constitutes a taking is that correct i don't know of any supreme court case that holds that or prohibition on dangerous personal property is a taking this is a fairly novel situation were a group of cases that expressed the court's view on why the state may diminish the value of property these cases do not apply that's that's a more specific answer to your question but i think that the generally answer is that in lucas the south carolina justice scalia explained that these cases cannot be used in the modern cont honor on page twenty two of the blue briefs you argue that the final rule i am quoting you was not an exercise of police power because it was it was prompted by a change in policy not by greater familiarity with bumps docs and was obviously new legislation not interpretation of statutory language language in the shooting of all those people in las vegas who did not make the public and the government yes than the government i i believe it certainly did alert the public and the government to what a bump sack is capable of doing i don't think that's the same as  explaining showing the government how all of them thought functions and whether the way a bus stop functions would be in would fall under the the the statutory language of what constitutes a machine gun not given your client an opportunity to surrender destroy their bomb stocks if the government had waited for the final rule become effective and then seize their bum stock is unlawful with that still be a  still be a compensable taking i think the point is that the that the public owned some stock when they purchased the bonds stocks the bonds stocks were perfectly legal so they acquired the entire bundle of reasonable use of the regulated property exists in agree with me of an automatic weapon is less accurate than a single shot which you know i think that's correct what's a reasonable use for a fully automatic weapon of property would not be taking so for instance our regulations that restricted the sale on stocks would not be a taking it would have been legitimate for the government to say you can't sell these and that wouldn't take away the entire bundle of rights therefore it wouldn't be a sacred and my question was what's a reasonable use for a fully automatic weapon and while you're at it what's your cyclical rate of fire is it six i don't feel i'm not in a position to say what the full range of reasonable uses are i think that there could be sporting  acquire title to property you know property personal property maybe both at at a time at which it was perfectly lawful to do so but that later events can turn future position in to an illegality for which there is no taking such as such as but not necessarily limited to use even by somebody else in a criminal enterprise perhaps also vac you're out of you're you're correct that those are cases in which the owners of the property had a property interest before the property was taken from them but this is a very narrow lin of the administration of the criminal justice system you might even say that in exchange for the benefit of having a working system of justice we have all implicitly agreed that the state has a right to temporarily take  piece of property that is needed to administer justice that almost in here is in the title of the property that we cede the right to the state to take property from that if it's necessary to continue justice some role at least in some of the older supreme court cases like united states against stoll and whatnot seemingly having some relation to what at least used to be talked about as a background police tower when that phrase police power might have had a narrower meaning relating to health safety and morals than it has come to mean and why this might not be an instance in which property was acquired when there were statutory prohibitions on machine guns prohibitions certain measure of evolving implementation choices by the agency the agency makes an implementation choice and why should that not have the same a fact and as a title limitation being triggered as automatically effectively transferring the title away from it and the possessory interest away from the previous acquire to think about that question for a moment  mean that i mean i'm i'm groping so i i'm not i'm not trying to be precise here because i think this is an area in which there are a lot of concepts floating around not very  well organized or related to each other are precisely defined in a variety of case law at different levels and so i'm trying to explore one strand here  which which may fit with which which doesn't include this idea of sort of dormant limitations hearing and title that bring to that being a compensable taking you on of what the this court said is that there would have to be a preexisting limitation on the property and independent  preexisting limitation on the property now for the machine gun to serve as a limitation on the right owner of a bunch it would be strange court said that a background principle that inheres in the title to property has to do no more than what could have been achieved by the court i think it's very different in this instance before the final  force and effect of law no they don't they don't i i would look to what the the d c circuit has decided in the gate its case about the nature of the final rule being a legislative battle what the the c circuit did was analyze the language in the bill itself and the circumstances under which the robots adopted to conclude that the agency intended this to be a rule that would have the force of law and would have perspective effect only that the the language in the rule itself is very clear that the sox are not a legal before the final roll is passed that it would have only perspective didn't quite hear an answer to my question and i don't have the federal register materials with me in the a t s announcement of its rule does it say  banning banning machine guns that statute did not reach bunch talks until the final rule was issued in its legislative capacity that's tremendously significant for purposes of taking jur because it means that everyone who owns a bum stock has the full bundle of rights in their property and it was only the final rule itself that took all of those rights away from the people who had to either destroy their property abandon it at an a t f office that's why in our brief we've spent so much time discussing the significance of the legislative role and explaining the difference between the legislative role with respect to bunch stocks and the treatment of the so called legislative rule in an interpretive rule and i'm trying to think through why should that matter the statute that banning machine guns authorizes the government to enforce and also interpret that statute to ensure that devices that can convert a weapon into a machine gun are are likewise outlawed so i guess i'm i'm trying to understand if that's all the government is doing then the government was authorized in in making that interpretation whether you want to call it a legislative rule or an interpret the purposes of this appeal we have to assume that that regulation is in fact about your honor i think that's absolutely right and that would be a very important point if are lost or challenging  of the rules but it's not challenging to believe our lawsuit is only about whether this is a taking about whether the owners of bonds stocks had property rights that were protected that were taken by the final rule and so for that purpose i think the distinction between a legislative role and interpreter role is highly significant because under one scenario the people who purchased some stocks acquired property rights when they did so and i don't know either scenario they couldn't yes yes hear me yes i can this is just well like i have a couple more questions for you and your time is running ok on page eighteen of the red  then in addressing a similar prohibition on bus stops the district court of maryland emphasized that the principle that the government may ban hazardous materials without compensation is quote consistent with a long history of state laws that criminalize ban or other rice restrict items deemed hazardous under the police powers citing the regulation of machine guns explosive devices controlled substances child pornography fireworks and to the pornographers who possessed it before it was illegal well there's a couple of a couple of aspects to that question st of all i don't know of any instance in which anyone did challenges to taking any sort of limitation  criminalization of child pornography i think this is a question that would have to be resolved by blocking at the state laws in effect and common law and whether this is regarded as a nuisance under common law because that of course would be a background principle that would limit anyone's property rights in anything in it including something that would be deemed child pornography  nuisance i think the government has admitted in its brief that bump stocks they found no law to indicate that the software a nuisance i don't think machine guns could be a nuisance either machine guns of course were grandfathered in to the ban on machine guns many of them are still legal and are owned by people so that in itself i think suggest that it's not a nuisance i don't think property itself is often a nuisance i think it's ordinarily a use of property give you arms gauge didn't stock sales even after the a t f announced its plans to adopt the final rule displaying a countdown clock on its website and sending promotional emails pointing to the impending bann correct i believe it's correct that they did sell bump stock before the rule was and now i find that the amicus brief discussion of this is interesting because i think it points to something rather different than they more clearly they their property interests could have not been expanded or protected by those letters those letters were subject to change as a t f said and so those could not have created any of the sticks in the bundles and rights which meant that they could have been withdrawn at any time without them being taken and the withdrawal of those letters just something happened that those letters were withdrawn and then a new rule with him put in place to withdraw all of those letters alone now the way you're characterizing them m r sound like a mirage that nobody should have relied on and then ben i was on the impression that the letters are something that these owners these requesters for classification rulings are entitled to rely on them i understand they reserve the right to change your rulings on these matters but nevertheless if if i were to receive a clearance letter from a t f and that the bum stocks are in fact legal and not outlawed by the statute i don't know what i'm so i think i could make an argument that now i've detrimental relied on that classification letter that was reaffirmed over and over again for a decade and only to have the rug pulled out from the decade later respect said the new rule was legislative versus interpreters i'm not sure that's the most significant thing and what to d c circuit said but it made it a rather large point of saying it was really quite important that possession before the date of the rule not be declared illegal yes you are so i mean there's a lot your questions are i want make sure off they did make this determination about legislative interpretive we disagree both with the plaintiff's citing of this as relevant to the analysis of the taking of the analysis of the police power but even if he even if you don't disagree with the d c circuit what the d c circuit did was it cited national mining association with which had this court those general descriptions do not describe tidy categories and often a little help in whether what a t f did here was legislative or interpretive or the like and you know that to say this has never been used in taking well i will say is simply not helpful to me at the moment in trying to figure out how to make conceptual sense out of this so i'm really interested in help in making conceptual sense ok and i think i can do that your honor let's imagine for a nd that a t f withdraws these letters and doesn't pass so what we have that is we have a prohibition of a statutory probation on machines and so then we have the potential that that a t f or d l j which some federal officer arrest somebody that when we talk about the bundle of sticks that they own they don't own the bundle that protects them from being prosecuted under that statute they could have it and so they could've been found guilty all the  did was interpret the statute and give people to be fair notice about when this is you know how this interpretation was going to be applied so so that you seek to do think that the analysis that you just art siren statute by itself was void for vagueness as applied or for that because of inherent uncertaint if if the government started prosecuting people who owned stocks criminally then the value of those bonds stocks would be presumably i mean if the government started process these prosecutions presumably the value would  only you know adopted throughout the country but but i don't think so don i think that i mean ultimately the the that there's two ways that i i think th whatever it was they didn't have the full set of six in the bundle they had something that was limited by the existing staff and we have to recognize that that people who are buying bomb stuff will bind them so that they could simulate machine gun mean there's no other use for these things other than to to to get as close to a machine gun as you possibly can be a convict celebrator already held to be illegal because it had a spring and tried to simulate a machine gun and so the what exactly it said about chevron step one and chevron step two and in particular did it say the statute is ambiguous under study under chevron step one and therefore we are exercising  core of the the rule here is they interpreted elements of what a machine gun and so with that i'm going to move on to the police power and talk about why the police power here if we separate from the property interest issue as public use which is essentially the same as public purpose if that's right then what all nine justices  agreed with which is that something that is that a an action that is taking that is not for a public use is actually illegal whether or not compensation unconstitutional whether or not compensation is is paid so how does this notion of police power if it is essentially equivalent to public purpose having to pay i think i think the bennies case and other supreme court cases have been clear that there is it and there's no question that he will describe the limitation that public  provide the th and then but that that case was not a case about the limitation of police power it was a question of what happens if you have eminent domain and you don't have public you the public illegal and if you're part of part of one of one of those background principles is is you know she's in property for evidence three purposes in a criminal proceeding and that would be kind of a temporary one the customs one is a longstanding background kind of border control what what i am confused about is how it makes any sense as a constitutional matter to say the police power which at the federal level is the exercise of the commerce power or some other delegated constitutionally delegated authority for the public good how that doesn't how one could say that whenever congress or an authorized agent of congress does something for that incredibly broad range of purposes it doesn't have to pay for property as long as it doesn't say we're not using the eminent domain power or what it's like  party or destruction and i know you view the government keeps wanting to resist that but just assume for the purposes because i think that that's pretty much what our general motors i think so thirty that question whether this was a physical taking  right then it would be for public use as opposed to getting them off the street there's a fundamental difference between those two things which is recognized in the horn case and and so that's the st question is and so what  horne say about you must destroy this versus you must give it to us no no it says that it recognizes it says in acknowledging the variation in treatment between regulatory and physical taking when the result might be the same it said a physical taking  if if this thing if there's no economic benefit to the government if it either in acquiring the goods or for example in the lucas case there was you know if you stop somebody from building anything on missed gellman why did the a t f require dispossession of remaining scrap i don't i don't know but my my interpretation of that has always been that they didn't want people they didn't want people taking things apart and keeping the pieces so that they could be put back together and so i mean i think that's going to destroy destruction would be just taking it apart and the like and by asking people to get rid of the scrap that prevents them from keeping it one because under the definition of machine gun you can't keep something sort of one step away from being a machine gun or machine gun patients are using him and is keeping them on some years later the drug starts being used for a very dangerous recreational purpose because the f d a banned it entirely despite the continuing reliance of patients on the drug to keep them alive if you're asking me about i obviously i can't answer that i'm an f b i point of view but let's assume that they can and that they have the legal authority to back then if your question is would that result in a taking that that would not you are that that that the i mean one of presumably make very difficult decisions about the health of the community and whether to authorize a drug or whether to ban it based on the big picture and  dollars caliber can be possessed if there's a license am i correct that there is no licensing exception for bump stocks because they are all produced after eighty six that is my understanding yes that they are all banned i mean the bank stocks that are defined in the in the statute which are effectively all that i'm aware of are banned and there's no licensing available thank you economic benefit flowing to the government and or to the public and we're going to make that a push a taking a kid i think i think i may be just asking you the same question but either this concept of lease power or this concept of economic benefit lying behind a government action to either of those concepts appear in supreme court  think that the concept of the corporate power basically going through these cases and then trying to understand what the court is doing here you do have like in the acadia case you have the court recognizing that certain exercise the police power quote that they have repeatedly been treated as legitimate even in the absence of compensation so this court has recognized that there are is this  group of police power that is enough to even without compensation at all you're done and then with other assertions of police power like as in rose acre you need to go to the penn central analysis but now your honor this is s the court described sort of the underlying theory of police power and why it exists and and basically said that along with the concept of a nearing there's this sort of general concept that in years to all bundle of rights in the bump socks that they purchased there was nothing in the machine gun ban that applied to the bundle of rice at that time when the government speculates that it would have been possible to take someone to court and prosecute under the machine gun ban that's pure speculation and in fact the legislative rule that that the agency that the a t f chose to bring about a final rule through a legislative rule is highly indicative that the agency itself understood that the machine guns than standing on its own would not be sufficient in a court in order to prosecute someone for owning a fahnestock that's just beside the point that they wrote letters stating that they did not believe that it covered bump stocks so the bundle of rights that we have that owners had in these long stocks had nothing to do with the letters coming out that's simply a confirmation of what the a t f you was before they made a policy decisions that bonds stocks ought to be regulated by the machine come back now i want to point out something about the use of that expression to be the core police power this is not an expression that's used in taking small in fact this is the very distinction that the lucas court said is not permissible the distinction between a regulation that results in some benefits and one that prevents some harm these are just the same size they're two sides of a single googled it on westlaw it's only with respect to what powers do the states have in comparison to what powers to the does the federal government have and so we will see that expression that times in these early supreme court decisions that address taking blood because the issue there was that it was a states regulation and it was a largely a due process claim but that's not a taking principle and there is no recognition of a core with the government's characterization of warner as reiterating the observation in lucas's that personal property is so far as the government says that horton applies that dispossession as opposed to regulation of use misa government is totally incorrect the only thing that lucas said is that unlike land where personal property is concerned it might protected birds could no longer be sold well in that case the supreme court said you still have possession and this is therefore not a taking it's you know it's reasonable regulation in that you are no longer able to sell that you know  it i think that the most you can say look a says and the horn reiterated is that if the owner of a person's personal property has all right taken away except the right to possession that is likely a very case said that what esther lucas had to say about reasonable expectations with regard to regulations and this is a quote people still do not expect their property real or personal to be actually occupied or taken away now with the understanding that the supreme court has abused your property being taken away as your rights being destroyed and if we take the point of view of the owner of the property not the point of view of the government