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Thread: SCOTUS ruling on Stop The Beach Renourishment v. Florida Dept. of Environmental Regulation

  1. #1
    Regular Member TFred's Avatar
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    Oct 2008
    Most historic town in, Virginia, USA

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    I just had a chance to read some articles on this SCOTUS opinion which was released a couple days ago. This is mainly a property rights issue, concerned with the Takings Clause of the Fifth Amendment.

    While reading this commentary published by the Pacific Legal Foundation, they quoted from Section II of the opinion:

    States effect a taking if they recharacterize as public property what was previously private property.... The Takings Clause…is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor…. There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat…. 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.
    If you substitute the protections of the Second Amendment in place of the protections of the Fifth Amendment in that paragraph, it's a pretty good thing to read.

    This wording reminded me of a quote from Alan Gura during a Glenn Beck interview: "If congress can't take a gun away and President Obama can't take a gun away but the mayor takes your gun away, you still don't have a gun."

    It sounds an awful lot to me like this recent case, at least this one section of the opinion, is using some very similar reasoning. Perhaps a clue about the upcoming opinion on McDonald?


  2. #2
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    Nov 2006
    Fairfax Co., VA

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    There is another similarity. In Heller one of the core arguments was that the DC government had so regulated firearms as to effectively ban them or nullify their use. Very similar to the above-quoted text about regulating a property as to destroy its value.

    For example,some years agoa fella boughtsome beachfront property, planning to develop it.He spent a goodly sum to aquire it. Shortly after some government entity made a regulation orsomething that designated the property as some sort of protected area.Instantly, hecould not develop theproperty, nor could he sell it for anywhere near what he paid for it. Theregulation destroyed the value of the property.I heard about this in one of Judge Napolitano's books, either Constitutional Chaosor Lies the GovernmentToldYou. I'm thinking it was the former.

    Both are excellent books, by the way. If you can't afford a new copy, they're probably availableused from Amazon.

    Regulation is regulation, except when it is being used arbitrarily or for political ends. In which case it no longer fits the definition of "putting into good working order" and isn't really regulation.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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