Shelvin L. Hall
Shelvin L. Hall

An appeals court has upheld Cook County taxes on firearms and ammunition.

The 1st District Appellate Court has ruled a $25 fee for gun purchases and 5 and 1-cent surcharges on ammo do not violate the federal or state constitution.

Justice Shelvin Louise Marie Hall authored a 25-page opinion, noting that even the landmark U.S. Supreme Court decisions that affirmed individuals’ right to bear arms made clear the right “is not unlimited” and “conditions and qualifications on the commercial sale of arms” are still fair game.

She wrote that the taxes, enacted in 2012 and 2015, don’t really infringe upon gun-ownership, which is the core protected conduct of the Second Amendment.

“Nor are the taxes at issue prohibitive or exclusionary; we find it difficult to say that the taxes, $25 and $.05 per round respectively, are anything more than a ‘marginal, incremental or even appreciable restraint’ on one’s Second Amendment rights,” Hall wrote.

“To be sure, while it is clear that the firearms tax and the ammunition tax increase the costs of purchasing firearms or ammunition in Cook County, a law does not substantially burden a constitutional right simply because it makes the right more expensive or difficult to exercise,” she added.

Hall, joined by Justices Mary K. Rochford and Mathias W. Delort in the ruling Friday, also rejected claims the county taxes were unconstitutionally arbitrary and preempted by statewide laws.

The suit was filed in December 2015 by Guns Save Life, Inc., Des Plaines-based Maxon Shooter’s Supplies and Indoor Range, and a county resident named Marilyn Smolenski, a member of Guns Save Life who paid the 5-cent tax on an ammo purchase under protest and who claimed she would modify future firearms purchases because of the taxes.

That was a month after the Cook County Board enacted the ammunition taxes, $0.05 per round of centerfire ammo and $0.01 per round of rimfire ammo. The $25 fee on all retail gun purchases was enacted in late 2012.

Plaintiffs argued those taxes impermissibly burdened their Second Amendment rights as well as their rights under Article 1, Section 22 of the Illinois Constitution, which is similar to the Second Amendment but states the right to bear arms is “subject only to the police power.”

They also claimed violations of Article 9, Section 2 of the Illinois Constitution, the Uniformity Clause, which states tax classifications should be “reasonable” and subjects and objects taxed “uniformly,” and that the statewide Concealed Carry Act and Firearm Owners’ Identification (FOID) Act preempted local regulations on guns and ammo.

Cook County Associate Judge David B. Atkins partially granted a motion to dismiss filed by county officials, ruling Maxon and Smolenski only had standing to challenge the ammo tax, not the firearms tax, though, he also ruled Guns Save Life had standing to challenge both.

He then granted summary judgment for the county in August 2018, ruling the taxes did not meaningfully impair the right to bear arms, and even if they did, they were substantially related to a government interest because some of the tax funds go toward public safety. Atkins also ruled plaintiffs didn’t show the taxes violated uniformity, and that they were outside preemption because they were a proper exercise of county taxing power.

The appeals panel on Friday largely affirmed that decision. It disagreed with the circuit court on Maxon’s standing, ruling the business didn’t have a valid challenge to the firearms tax or the ammo taxes because it wasn’t really burdened by them — it only collected and remitted them.

Citing District of Columbia v. Heller, the 2008 high court decision recognizing the right to keep and bear arms, the panel noted the nation’s top justices in that case specifically mentioned it was not casting doubt on “longstanding” laws that placed conditions on firearm ownership.

“Turning to the ordinances at issue here, while they involve firearms and ammunition, it is clear that the challenged taxes on the purchases of firearms and certain types of ammunition within the [c]ounty do not restrict the ownership of firearms or ammunition,” Hall wrote.

“It is the right of ownership of firearms and correspondingly, ammunition, that is at the core of the Second Amendment, which, as noted by Heller, is not itself unlimited. The taxes could reasonably be considered a condition on the commercial sale of arms,” she added.

At the end of the day, the panel wrote, the gun surcharges are akin to sales taxes, which are levied on all kinds of goods and services.

“Plaintiffs, and any other purchasers of firearms and ammunition, are already subject to sales tax on the purchases. Plaintiffs do not argue that such sales tax on the purchase of firearms and ammunition violates their right to keep and bear arms,” Hall wrote.

“Similarly, we find that the additional [c]ounty taxes on the purchase of guns and ammunition do not infringe upon any protected Second Amendment right under the federal constitution or [S]ection 22 of Article I of the Illinois [C]onstitution,” she added.

The justices also ruled the taxes do not violate the Uniformity Clause, noting the county’s justifications for drawing certain lines within the laws are reasonable. The laws exempt certain groups such as veterans and law enforcement because of their service and charge more for centerfire than rimfire ammo because it’s more lethal.

The ammo taxes also go toward a fund for public safety.

“Here, the circuit court correctly determined that the classifications in the taxes were valid. The [c]ounty’s proffered reasons for the classifications are reasonably related to the objectives of the ordinances,” Hall wrote.

Finally, although the state Concealed Carry and FOID acts both have language limiting the power of home-rule communities to regulate in the arena of firearms, the constitution treats local regulation and local taxing powers separately.

“Section 6 of Article VII specifically states that the General Assembly may limit any power or function of a home rule unit other than a taxing power. The power to regulate and the power to tax are separate and distinct powers,” the panel noted.

“Here, it is taxes at issue and not any regulatory ordinance. Accordingly, plaintiffs’ argument that the [c]ounty’s firearms and ammunition taxes are preempted by the FOID Act and the FCCA are without merit.”

Cristin McDonald Duffy, a Cook County assistant state’s attorney, represented the county in the case. A spokesperson said in an email Wednesday that the office is “combating the devastating effects of community gun violence in every forum.”

“Our Civil Actions Bureau again defeated the NRA in its most recent attack on a Cook County Ordinance taxing firearms and ammunition sales. The proceeds of the tax offset the funds utilized by Cook County Health to provide medical treatment for victims of gun violence.”

Pete Patterson, of Cooper & Kirk PLLC in Washington, D.C., represented the plaintiffs.

He said in an interview Thursday this is really the first case in the nation to deal with guns and firearms taxes as a Second Amendment issue. He said the U.S. Supreme Court has struck down other taxes that arguably encroached on other constitutional rights, and gun rights should be be no exception.

“You can’t have a special tax that singles out a constitutional right, and that’s what Cook County has done here,” Patterson said. “The panel decision compared it to a general sales tax, and said it’s not really different than that. But there is a key difference. It’s one thing to have a generally applicable tax, but what we can’t do is single out a fundamental right for taxation.”

He said the panel didn’t go into depth on his argument about the Illinois Constitution’s language on gun rights, which states those rights are “subject only to the police power.”

“Tax powers and police powers are distinct powers. So our argument under the plain text of the Illinois Constitution, you can’t encroach on the right to bear arms with the tax power,” he added.

The case is Guns Save Life, Inc., et al. v. Zahra Ali et al., 2020 IL App (1st) 181846.