In what could seem to be like an impossible turn of direction under the current political climate, this week 2 state Supreme Courts ruled in favor of gun rights activists.
Wednesday, the Pennsylvania Supreme Court’s decision opened the door for legal challenges to local gun control laws, and Thursday the Illinois Supreme Court voted unanimously to declare Cook County’s tax on firearms and ammunition null and void
This case has been winding its way through the state’s court system for several years, since shortly after Cook County imposed a tax on ammunition in 2015. Three years earlier the county had also put a $25 tax on each firearm sold, with the proceeds from both taxes slated to be used for “operations related to public safety.” There were no specific programs where the money would go, however, which played a big role in the state Supreme Court’s decision to strike down the taxes.
The court did note that Second Amendment rights were being implicated by the tax, but the justices were able to bypass actually ruling on whether or not the tax violated the right to keep and bear arms (and the associated right to acquire them) by basing their opinion on the “uniformity clause” of the state constitution, which declares that “in any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.”
According to the state Supreme Court, the gun and ammo tax violates that part of the state constitution because “the relationship between the tax classification and the use of the tax proceeds is not sufficiently tied to the stated objective of ameliorating those costs.”
Under the plain language of the ordinances, the revenue generated from the firearm tax is not directed to any fund or program specifically related to curbing the cost of gun violence. Additionally, nothing in the ordinance indicates that the proceeds generated from the ammunition tax must be specifically directed to initiatives aimed at reducing gun violence. Thus, we hold the tax ordinances are unconstitutional under the uniformity clause.
A good ruling, to be sure. But as Justice Michael J. Burke wrote in a concurring opinion, it may not go far enough.
Article I, section 22, of the Illinois Constitution states that “the right of the individual citizen to keep and bear arms shall not be infringed” and is “[s]ubject only to the police power.” The majority agrees that the taxes in this case burden the fundamental second amendment right to keep and bear arms. The majority also notes that “we are not considering a reasonable regulation on the purchase of firearms or a generally applicable tax on the sale of goods.” Rather, the County has imposed a special tax on the purchase of firearms and ammunition.
… The majority’s analysis is problematic because it leaves space for a municipality to enact a future tax—singling out guns and ammunition sales—that is more narrowly tailored to the purpose of ameliorating gun violence. Specifically, the majority states that the tax ordinance fails to pass constitutional muster only because “the relationship between the tax classification and the use of the tax proceeds is not sufficiently tied to the stated objective of ameliorating [the costs that gun violence imposes on society].”
The majority then admonishes that revenue generated from the taxes is not directed at any initiative or program directed at curbing gun violence or reducing it costs. The only problem with the majority’s approach—and the guidance it offers the County—is that such counsel, if followed, would still violate the provision of the Illinois Constitution noted above that plainly states that the right of the individual to keep and bear arms is subject only to the police power, not the power to tax. Thus, the majority is leading the County down a road of futility.
I think Burke has done a pretty good job of predicting Cook County’s response to the Supreme Court decision and the legal fight that’s sure to follow. Cook County will likely go back and revise how their gun and ammo tax revenues are spent with a careful eye towards the Supreme Court’s opinion, and it won’t be long before another case is filed, with Justice Burke’s argument that the state constitution does not allow for special taxes on the exercise of the right to keep and bear arms as the thrust of the challenge.
So yes, today was a good day for Illinois gun owners, but it would have been better if the state Supreme Court hadn’t offered Cook County a way to try to revive its unconstitutional tax. This is the same court that punted on a FOID card case, choosing to send it back to a lower court rather than squarely address the constitutionality of the Firearms Owner ID requirement. That case is now headed back to the Supreme Court, and it’s going to be tough for the justices to duck the issue. I suspect the same thing is going to happen with Cook County’s gun and ammo tax. The county will try to revise it, it will be challenged, and the next time around the state Supreme Court is going to have to answer whether or not the state constitution actually means what it says.
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