On Tuesday, October 21st, the Illinois Supreme Court, in a shocking win for gun rights and 2nd Amendment advocates, ruled that Cook County’s tax on guns and ammunition is unconstitutional.
For reference, the Epoch Times reports that:
In 2012, the Cook County Board of Commissioners approved a $25 tax on the retail purchase of a firearm within the county. The county’s Firearm Tax Ordinance was enacted in April 2013.
A separate county tax was enacted in 2015, which added $0.05 per cartridge for centerfire ammunition and $0.01 per cartridge for rimfire ammunition. Americans who fail to pay those taxes are subject to a $1,000 fine for the first offense and a $2,000 fine for subsequent offenses.
The Epoch Times reports that Justice Mary Jane Theis, in her 6-0 ruling on the case, found that the taxes “violate the state’s constitution because they affect law-abiding citizens’ Second Amendment right to acquire firearms for self-defense,” reasoning that “While the taxes do not directly burden a law-abiding citizen’s right to use a firearm for self-defense, they do directly burden a law-abiding citizen’s right to acquire a firearm and the necessary ammunition for self-defense.”
Theis also noted, in the 14-page decision, that “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.” It is unclear if the decision would have been different had the revenues raised by the tax been directed toward “initiatives aimed at reducing gun violence,” but the holding hints that that may be the case.
For example Theis, on page 10 of the opinion, states that “While the standards articulated in these cases were not directly made in the context of a uniformity clause analysis, they inform our analysis in evaluating a tax classification that directly implicates a fundamental right. As in Boynton, we are
not considering a reasonable regulation on the purchase of firearms or a generally applicable tax on the sale of goods. Instead, the County has singled out the retail purchase of firearms and ammunition as “a special object of taxation.”Thus, we hold that, where a tax classification directly bears on a fundamental right, the government must establish a closer tie between the tax classification and the object of the legislation. To pass scrutiny in that instance, we hold that the tax
classification must be substantially related to the object of the legislation.”
Why the direction of the funding affects the legality of a restriction is unclear. As Justice Burke put in his concurrence, “I believe that the majority’s analysis wrongly leaves the door open for a municipality to enact a future tax on firearms or ammunition that is more narrowly tailored to the purpose of ameliorating the cost of gun violence. The only problem with that approach is that it would still violate the Illinois Constitution.”
Describing why such laws violate the Illinois Constitution, Justice Burke noted in his concurrence that “the Illinois Constitution only allows the legislature to preempt regulations, not taxes. And taxes that infringe the right to keep and bear arms are already precluded by the Illinois Constitution.” His concurrence, on that matter, at least, is similar to Justice Theis’ opinion, in which she notes that “In sum, for the foregoing reasons, we hold that to satisfy scrutiny under a uniformity challenge, where a tax classification directly bears on a fundamental right, the government must establish that the tax classification is substantially related to the object of the legislation.”
In any case, Theis remanded the case to the circuit court “for entry of summary judgment in favor of plaintiffs.” It remains to be seen if the county will attempt to rewrite the law in a way that ties the tax closer to attempts to ameliorate gun violence, and thus make it potentially constitutional under the standard set by Theis, or if Burke’s remark that such a tax would still be unconstitutional will dissuade it from doing so.