Gun, Ammo Tax in Cook County Struck Down by Illinois High Court

Oct. 22, 2021, 12:03 AM

Cook County’s tax on guns and ammunition violates the Illinois constitution, the state’s Supreme Court said Thursday, reversing an appellate court ruling that green-lighted the taxes.

The county in 2013 enacted a $25 flat tax on firearms purchases, and followed in 2016 with a 5 cents-per-cartridge tax on center fire ammunition and a one cent-per-cartridge tax on rimfire ammunition. The revenue generated from the tax on ammunition is directed to the Public Safety Fund for operations related to public safety, while the revenue generated from the tax on firearms is not directed to any specified fund or program.

A state appellate court ruled the tax didn’t violate either the Second or Fourteenth Amendments of the U.S. Constitution, and didn’t violate the uniformity clause of the Illinois Constitution. A group, Guns Save Life, Inc., appealed that decision.

The Illinois Supreme Court reversed the ruling, finding the taxes did violate the uniformity clause of the state’s constitution.

The ordinances impose a burden on the exercise of a fundamental right protected by the Second Amendment, Justice Mary Jane Theis wrote for the court. While the taxes don’t directly burden the right to use a firearm for self-defense, they do directly burden the right to acquire a firearm and ammunition for self-defense, Theis said.

Under the uniformity clause, the taxes must bear a reasonable relationship to the object of the legislation or to public policy, Justice Theis wrote for the court. But the relationship between the tax classification and the use of tax proceeds isn’t sufficiently tied to the stated objective of ameliorating the costs that gun violence imposes on society, Theis said. The taxes therefore violate the Illinois constitution.

Justices Rita B. Garman, P. Scott Neville Jr., David K. Overstreet, and Robert L. Carter joined the majority opinion.

Justice Michael J. Burke concurred, but said “there is an even graver problem with the county’s tax that the majority should not ignore.”

The majority opinion is problematic because it leaves space for a county to enact a future tax that singles out firearms as long as it is more narrowly tailored to the purpose of curbing gun violence, Burke said.

The power to regulate and the power to tax are separate and distinct governmental purposes. The government can regulate the right to keep and bear arms but doesn’t have authority to single out the exercise of that right for taxation, Burke wrote.

The Illinois constitution 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, he said.

The case is Guns Save Life Inc. v. Ali, 2021 BL 404610, Ill., No. 126014, 10/21/21.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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