I usually cover cases involving the Constitution of the United States. Today, however, I am looking at a case out of the State of Illinois involving that state’s constitution and the question of county gun and ammo taxes. While the appellant’s complaint argues that these taxes violate the both Article I, Section 22 of the Illinois Constitution and Second Amendment to the U.S. Constitution, the Illinois Supreme Court instead focused on the taxing power of the county. While Cook County gun owners may be happy with the outcome, as a constitutional scholar I find the majority opinion woefully lacking.
The case of Guns Save Life, Inc. v. Zahra Ali, Director of the Department of Revenue of Cook County brings up an interesting question. Is a tax on a constitutionally protected right an infringement of that right? The case stems from two Cook County ordinances, one that imposes as $25 tax on the retail purchase of a firearm within the county, the other a tax on ammunition of $.05 per centerfire cartridge and $.01 per rimfire. Guns Save Life, Inc. claims that these taxes violate both the Second Amendment to the Constitution of the United States and Article I, Section 22 of the Illinois Constitution, which reads.
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
Illinois Constitution, Article I, Section 22
While the court looked at several legal issues regarding the case, I am focusing on the constitutional questions involved.
We begin our analysis with the Illinois constitutional claims and need not consider the federal constitutional claim, as we find dispositive the claim that the taxes violate the uniformity clause.
Guns Save Life, Inc. v. Ali
The court decided not to even consider the violation of the right to keep and bear arms under the constitutions of either Illinois or United States. Rather, the court focused on the issue of uniformity.
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. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.
Illinois Constitution, Article IX, Section 2
The court then notes that, for a non-property tax to survive its scrutiny, it must be based on a real or substantial difference between the people taxed and not taxed, and bear some reasonable relationship to the legislation or public policy. It is the second of these requirements where the court found problems with these ordinances.
Justification of the Taxes
Here, the entity responsible for justifying the tax, the County, maintains that the tax classification is justified since a reasonable relationship exists between the special tax and the object of the ordinances. The proffered justification for the taxes is to fund the staggering economic and social cost of gun violence in Cook County. The County asserts 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.
Guns Save Life, Inc. v. Ali
The county claims that the taxes are reasonable because of the amount of money it pays to treat gunshot wounds. The county claims it spends between $30 to $40 million per year, and since 25% of those patients do not have health insurance, the county must pick up the cost of their treatment. The county also claims that firearms and ammunition are “instruments of death” and are therefore harmful to public health, safety, and welfare, which means these taxes are a source of revenue for gun safety and violence prevention programs, along with funding for the criminal justice agencies that combat gun violence.
We agree that the ordinances impose a burden on the exercise of a fundamental right protected by the second amendment. At its core, the second amendment protects the right of law-abiding citizens to keep and bear arms for self-defense in the home. District of Columbia v. Heller, …
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.
Guns Save Life, Inc. v. Ali
Guns Save Life, Inc. relied on the Boynton v. Kusper case to claim that an ordinance may not single out the exercise of a fundament right for special taxation to raise revenue for the general welfare. They claim that the revenue raised by these taxes do not specifically fund gun violence prevention measures, rather the proceeds go into the county’s general fund.
In this language, the court hides a lie in the middle of the truth. Yes, taxing something imposes a burden on it, therefore taxing a right protected by the Constitution imposes a burden on the exercise of that right. However, the court did not accurately describe either the Second Amendment or the Supreme Court opinion on which they were relying.
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
District of Columbia v. Heller
In the Heller decision, the Supreme Court attempted to limit the plain language of the Constitution when it recognized that the Second Amendment protects an individual right to possess firearms for traditionally lawful purposes, of which self-defense within the home is one.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
U.S. Constitution, Amendment II
The Constitution does not limit the lawful purposes of firearms to self-defense in the home. The right to bear arms means the right to carry them, therefore extending the right to use them outside the home as well. Neither does the Second Amendment limit the use of arms to self-defense. Furthermore, the Second Amendment protects the right to keep and bear arms, not just firearms. That means your right to carry knives, swords, chemical sprays, or basically any:
Weapons of offense, or armor for defense and protection of the body.
ARMS – Webster’s 1828 Dictionary
The court has already admitted that it was not going to consider the Second Amendment issue because it found a problem with the taxing issue.
Taxing Issues
In applying that standard to the firearm and ammunition taxes, we recognize that the uniformity clause was “not designed as a straitjacket” for the County … and acknowledge the costs that gun violence imposes on society. Nevertheless, 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.
Guns Save Life, Inc. v. Ali
According to the court, the problem with these ordinances is not that they infringe on a right protected by the constitutions of both the state and the United States, but that this tax singles out a group of people without being used for the stated purpose of the tax. It appears to be the court using the tax question to skirt the central issue of infringing on the rights of the citizens of Cook County Illinois.
Concurrence
While the decision of the Illinois Supreme Court was unanimous, Justice Burke included a special concurrence:
I agree with the majority that Cook County’s special tax on firearms and ammunition violates the uniformity clause of the Illinois Constitution. Therefore, the appellate court’s judgment must be reversed and summary judgment entered on behalf of plaintiffs. I write separately because I believe that there is an even graver problem with the County’s tax that the majority should not ignore.
Guns Save Life, Inc. v. Ali
While I agree that there was a much graver problem with the county’s tax ordinances that the court should have addressed, it is not the one that Justice Burke wrote about.
As numerous Illinois cases explain, under our state constitution, “the power to regulate and the power to tax *** are separate and distinct governmental purposes.”. … While the government may regulate the right to keep and bear arms (within other constitutional limits, under its police power), by the plain terms of article I, section 22, it has no authority to single out the exercise of that right for taxation.
Guns Save Life, Inc. v. Ali
Justice Burke points out that the Illinois Constitution does not allow government to single out the right to keep and bear arms for taxation, only to regulate it under their police powers. My problem with the justice’s analysis of the right to keep and bear arms falls squarely on the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
The Constitution clearly states that not only does it supersede the Constitution of the State of Illinois, but that the justices of the Illinois Supreme Court are bound to it. While the Illinois Constitution may subject the right of an individual to keep and bear arms to the police power, the Constitution of the United States does not. Therefore the government many not regulate the right to keep and bear arms, period. Anything else is both a violation of the justices’ oath of office and a crime under 18 U.S.C. §242.
In my opinion, Justice Burke also points out a serious problem with the way the court went about finding these taxes unconstitutional.
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. See Ill. Const. 1970, art. I, § 22. Thus, the majority is leading the County down a road of futility.
Guns Save Life, Inc. v. Ali
Rather than a road to futility, I believe the majority of the court has mapped out a plan for counties in Illinois to violate the rights of their citizens in a way the court would uphold. All Cook County, or any government within the state of Illinois, has to do to make these taxes acceptable to this court is earmark the revenue collected to something related to gun violence, such as violence prevention programs, or to offset the cost to a county’s healthcare system.
Conclusion
This is why I say constitutional scholars must trust, but verify. Simply reading the headlines around this case would lead one to believe that the Supreme Court of Illinois had stood up to defend the rights of the citizens of their state. Instead, the court found a picky problem to focus on, while ignoring the larger issue of constitutionally protected rights and placing signposts for the state and counties to continue infringing on those rights.
By sidestepping the plaintiff’s main argument, that these taxes violate both Article I, Section 22 of the Illinois Constitution and the Second Amendment of the Constitution of the United States, this court has not only denied the members of Guns Save Life, Inc. their right to petition the government for a redress of grievance, but their right to due process as well. While some may claim this decision upheld the right of Illinois citizens to keep and bear arms, it did nothing of the sort. I would urge those citizens to consider that when these justices are next up for election.
