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Is it OK under the Illinois Constitution for an Illinois governmental entity to tax the sale of firearms or ammunition?

No. Well, maybe.

Another wishy-washy answer to a simple legal question.

The Illinois Supreme Court recently struck down as a violation of the Illinois Constitution a Cook County tax on firearms and ammo sold by retailers in Cook County.

In 2013, Cook County passed the Firearm Tax Ordinance, which put a $25 tax on the purchase of a firearm from Cook County retailers. The county later had a separate tax on ammunition — $0.05 per cartridge for centerfire ammunition, and $0.01 per cartridge for rimfire ammunition.

The Illinois Supremes, in a case where a not-for-profit gun-rights corporation sued Cook County, ruled that the taxes violate the uniformity tax provision of Article IX, Sec. 2 of the Illinois constitution which says, “[I]n 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.”

Normally when determining if a tax on such subjects or objects is reasonable for its class, a court must see if the tax bears some reasonable relationship to the object of the legislation or to public policy. Cook County argued the tax did — the taxes would help fund the staggering economic and social cost of gun violence in Cook County.

The county asserted that firearms and ammunition are instruments of death and that their harmful effects cost the county immeasurably in terms of public health, safety and welfare.

Ah, but here’s the thing.

The Illinois Supremes ruled that when a tax impacts a fundamental right, that tax must not just be reasonably related to the object, but substantially related.

And firearm ownership by individuals has been declared by the U.S. Supreme Court to be a fundamental right under the 2nd Amendment of the U.S. Constitution. While the tax doesn’t necessarily interfere with possessing a gun to defend your home, it might interfere with getting one to take home to defend your home.

So, was the Cook County tax for retail sale of firearms and ammo substantially related to those things of public health, safety and welfare?

No, said the Illinois Supremes. Principally because the revenue generated simply got tossed into the general revenue fund of Illinois.

The revenue generated from the firearm tax was not directed to any fund or program specifically related to curbing the cost of gun violence. Such ruling by the Supremes clearly left open the door of passing a tax on firearms and ammo so long as it is specifically directed to fund things curbing gun violence.

By the way, “substantially related” tax are not words found in the Illinois’ Article IX, Sec 2 language, are they?

Nope. All stuff made up by the court.

But then, the U.S. Supremes seem to have made up the right to own firearms by individuals regardless of whether such persons were in a “well regulated Militia.”

Which is the specifically worded premise and purpose to “bear Arms” in the 2nd Amendment — conveniently explained away by the 5-4 majority of the U.S. Supreme Court.

How made up and wishy-washy was that?

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

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