Yet this issue confronts a number of wider conceptual questions within traditional
property law discourse and, in particular, the contested applicability of that discourse
if one or more of the standard incidents of liberal private ownership — possession,
enjoyment or use, and transfer — are abrogated by state action. For example, when a
particular form of property, such as a handgun, loses a socially-sanctioned use, is
society required to compensate its owner because such a use was once permissible?
And on what basis: because title, expectation, and security, that is, the protection of
preexisting legal and moral claims, have trumping powers? In a similar vein, should
we apply the standard model of property transfers between private individuals, in
which a transfer without consent or payment of fair market value is considered
conversion or unjust enrichment (framed, as it is, by the moral sanction ‘thou shall
not steal’), to non-consensual transfers between the individual and the state? And
does it matter, for compensation purposes, if such a non-consensual transfer is
undertaken precisely to destroy the property as opposed to a transfer for use by a new
owner, such as occurs with compulsory purchase? Finally, what does the banning of
handguns telling us about the contingent nature of property itself and its temporality?
One way, among others, to unravel and reconstruct these questions is to
conceptualise handguns and various other forms of property within particular social
contexts as ‘old property’ and to argue, as I do in this article, that the state can ban or
seize such private property without the payment of compensation to its owner(s).7By
‘old property’ I mean property which is conceptually anachronistic, that is, out of
harmony with the present, and which creates, maintains, and reproduces relations
between peoples which are no longer recognised as legitimate or morally acceptable
by the bulk of the populace. The concept of ‘old property’, which appreciates that
property is a relation, not a thing, and a temporally specific claim which serves
human needs, not a timeless or perpetually-vested object or right, natural or
otherwise,8is, I suggest, a helpful analytical tool in deciding whether to award
compensation as a consequence of various forms of state action: banning property or
seizing property or abrogating various private property rights. Sometimes abolishing
more than one property incident, such abrogations by individual states — or by the
global community generally — could include a ban on possession (in the United
Kingdom, handguns, child pornography,9or knives in public places10),aban on trade
in that property11 (in the United Kingdom, combat and flick knives, ‘dangerous and
hooligan’ fireworks,12 child pornography, dangerous dogs,13 and oral snuff;14
internationally, the trade in ivory15), and/or a ban on use (nationally and inter-
7 The notion of ‘old property’ temporally inverts the approach to property developed by Charles Reich
in his often-cited article ‘The New Property’ (1964) 73 Yale LJ 733–787. By justifying, in
appropriate circumstances, the abrogation of individual property rights, the concept of ‘old property’
is demarcated from the privileging of property rights found in Reich’s analysis.
8 C.B. Macpherson, ‘The Meaning of Property’ in C.B. Macpherson (ed), Property: Critical and
Mainstream Positions (Toronto: University of Toronto Press, 1978) 1–3.
9 Criminal Justice Act 1988, s 160.
10 Criminal Justice Act 1988, s 139 and s 141.
11 Here I am including a loss of property itself as distinct from wider business losses resulting from the
banning or seizing of property.
12 For the property losses resulting from the June 1997 decision that banned so-called ‘dangerous and
hooligan’ fireworks, see most of the ‘non-recurring costs’ detailed in the ‘Compliance Cost
(Department of Trade and Industry, 19 June 1997).
13 Dangerous Dogs Act 1991, ss 1–2.
14 See RvSecretary of State, ex p United States Tobacco International Inc  1 QB 353.
15 In June 1997, the absolute ban was replaced with a controlled legal ivory trade, revealing the
contingency of property and how a commodity can, within my analysis, move in and out of the
category of ‘old property’.
March 1998] Compensation for Banned Handguns
ßThe Modern Law Review Limited 1998 189