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Illinois Supreme Court shoots down Cook County’s tax on firearms and ammo

Thursday, Oct 21, 2021

* Background

The Illinois Supreme Court this year will decide whether a Cook County tax on firearms and ammunition is unconstitutional on grounds taxes can’t be levied on items that allow people to exercise their “fundamental” rights.

The state’s high court last week heard arguments on a case where Cook County has twice been victorious in lower courts.

In 2012, the Cook County Board of Commissioners passed a $25 tax on firearms, followed a few years later by a per-cartridge tax on centerfire and rimfire ammunition.

The plaintiff in the case, “Guns Save Life”, a non-profit best known for erecting pro-gun signs on the side of highways, argues the intent of the tax was to make it more difficult for Illinoisans to purchase guns and violates their Second Amendment protections.

* The Illinois Supreme Court voted 6-0 to toss it out with Justice Anne Burke not taking part in the decision

The uniformity clause provides that, “[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. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.” Ill. Const. 1970, art. IX, § 2.

Generally, to survive scrutiny, a nonproperty tax classification must (1) be based on a real and substantial difference between the people taxed and those not taxed and (2) bear some reasonable relationship to the object of the legislation or to public policy. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (2003). Before this court, plaintiffs have abandoned their argument based on differences between tax classifications for centerfire and rimfire ammunition, distinctions between in- county and out-of-county purchasers, and any distinction between retail purchasers and those exempt from the tax, including law enforcement. Instead, the inquiry is primarily focused on the second prong, whether the taxing classification at issue— a special tax on the retail purchases of firearms and firearm ammunition—bears some reasonable relationship to the object of the legislation or to public policy.

This second prong is typically a narrow inquiry. While a municipality must “produce a justification” for its classification, we normally uphold a taxing classification as long as “a set of facts ‘can be reasonably conceived that would sustain it.’ ” Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 73 (2008) (quoting Geja’s Cafe v. Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 248 (1992)). Once the municipality produces a justification, the plaintiff then has the burden to persuade the court that the explanation is insufficient as a matter of law or unsupported by the facts. Arangold, 204 Ill. 2d at 156. […]

Relying primarily on Boynton v. Kusper, 112 Ill. 2d 356 (1986), plaintiffs assert that the ordinances may not single out the exercise of a fundamental right for special taxation to raise revenue for the general welfare. Plaintiffs further argue that the firearm tax merely funds the general revenue fund and that neither the firearm nor the ammunition tax is specifically directed at gun violence prevention measures.

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, 554 U.S. 570, 635 (2008). In McDonald v. City of Chicago, 561 U.S. 742, 778 (2010), the United States Supreme Court stated that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” See also Johnson v. Department of State Police, 2020 IL 124213, ¶ 37 (“the second amendment right recognized in Heller is a personal liberty guaranteed by the United States Constitution and the fourteenth amendment” (citing McDonald, 561 U.S. at 791)).

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. See Illinois Ass’n of Firearm Retailers v. City of Chicago, 961 F. Supp. 2d 928, 938 (2014) (noting that the acquisition of firearms is a fundamental prerequisite to legal gun ownership); Jackson v. City & County of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (the right to possess a firearm for self-defense implies a corresponding right to acquire the ammunition necessary to use them for self-defense).

This court has not yet considered the analytical framework for addressing a tax classification that bears on a fundamental right in the context of a uniformity clause challenge. Thus, we look to other contexts for guidance. In Boynton, we struck down a tax imposed upon those who applied for marriage licenses as violative of the due process clause. The statute required that $10 of the fee collected for issuing a marriage license must be directed into the Domestic Violence Shelter and Service Fund (see Ill. Rev. Stat. 1983, ch. 40, ¶¶ 2403, 2403.1). Boynton, 112 Ill. 2d at 359-60. The plaintiffs challenged that portion of the license fee as an unconstitutional tax violative of due process and the uniformity clause. Id. at 360. […]

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.

Since our holding disposes of this case, we need not address plaintiffs’ additional challenges to the ordinances.

…Adding… Sun-Times

In a statement, a spokesman for Cook County Board President Toni Preckwinkle said the county is “disappointed” in the Illinois Supreme Court’s recent decision.

“We intend to meet with our legal counsel and determine any next steps that may be warranted,” the spokesman said. “It is no secret that gun violence continues to be an epidemic in our region. … Addressing societal costs of gun violence in Cook County is substantial and an important governmental objective.

“We continue to maintain that the cost of a bullet should reflect, even if just a little bit, the cost of the violence that ultimately is not possible without the bullet. We are committed to protecting County residents from the plague of gun violence with or without this tax.”

- Posted by Rich Miller        

32 Comments
  1. - Lake Villa Township - Thursday, Oct 21, 21 @ 10:13 am:

    Good decision


  2. - Flyin' Elvis'-Utah Chapter - Thursday, Oct 21, 21 @ 10:15 am:

    In many ways the ILSC remind me of the GOP I knew in my teens and early adulthood, before they went bat**** crazy.


  3. - thisjustinagain - Thursday, Oct 21, 21 @ 10:17 am:

    A victory for the law-abiding gun owner in Illinois. This also places Cook County gun and ammunition dealers on a more level playing field with online ordering (completely legal under IL and Fed laws), since the punitive taxes on guns and ammunition were struck down. The ruling also prevents other local governments or the State from passing such laws under the guises of “gun safety” or “crime control”.


  4. - Not a lawyer - Thursday, Oct 21, 21 @ 10:22 am:

    So, if they pass a new ordinance specifically earmarking revenue for reducing gun violence, it should be OK?


  5. - Rich Miller - Thursday, Oct 21, 21 @ 10:24 am:

    ===it should be OK? ===

    Not necessarily, because then they could bring in the 2A stuff


  6. - Bothanspied - Thursday, Oct 21, 21 @ 10:35 am:

    So voter ID should be free and easily accessible. There should be no fee for permits to demonstrate. There should be no court costs to face your accuser.


  7. - hisgirlfriday - Thursday, Oct 21, 21 @ 10:38 am:

    Aren’t there taxes allowed on things relating to exercising other fundamental rights though?

    Taxes on phones or Internet to contact your politicians to express 1st Amendment protected speech are allowed.

    Protesters may have to pay money to the govt. to get a protest permit.

    Companies and individuals engaged in exercising the freedom of the press can be taxed.

    This ruling seems nutso to me.


  8. - thisjustinagain - Thursday, Oct 21, 21 @ 10:46 am:

    To hisgirlfriday: Feel free to file lawsuits on those issues, but be ready to lose. The taxes on telecomm/Internet are not inherent solely to the 1st Amendment; those items are used for other non-related purposes not involving the 1st Amendment. The protest challenge may have better luck, but protests cost taxpayers money for security and cleanup. The freedom of the press is similarly likely to be a losing challenge, because corporations are taxed on their profits from sales and advertising, not merely because they invoke the 1st Amendment to do so. Gun owners were blamed for gun violence and taxed solely for exercising their 2nd Amendment rights, which is impermissible.


  9. - wayward - Thursday, Oct 21, 21 @ 10:47 am:

    Wouldn’t that rule have just encouraged people to buy their guns and ammo outside Cook County?


  10. - fs - Thursday, Oct 21, 21 @ 10:53 am:

    == So voter ID should be free and easily accessible. There should be no fee for permits to demonstrate. There should be no court costs to face your accuser.==

    Legally there is a difference between a fee and a tax, and has been for a long time. You cannot tax a fundamental right for general revenue purposes. You can, however, impose a fee to cover costs associated with enforcement or licensing activity that involves a fundamental right, so long as those fees actually go towards something related to enforcement and costs, and the amount is so high that it effectively prohibits a person from exercising that right. To your attempted point, voter id laws have been upheld where it was indeed possible for someone to obtain a free id.

    This was a tax that went to general revenue. A pretty clear and easy decision, and not shocking that it was unanimous. What is surprising is that Cook County thought they could get away with it.


  11. - hisgirlfriday - Thursday, Oct 21, 21 @ 10:55 am:

    @thisjustinagain - You know what costs taxpayers more money for security and cleanup than protests? Guns and ammo.

    So by your own logic these taxes should be fine.


  12. - fs - Thursday, Oct 21, 21 @ 10:55 am:

    Should’ve read: *and the amount is not so night that it effectively prohibits*


  13. - Ares - Thursday, Oct 21, 21 @ 10:57 am:

    The IL Supremes will soon hear oral argument on a challenge to another Cook Co ordinance which diverted gas tax money from the roads / bridges “lockbox” added by the “lockbox amendment”


  14. - Dungeons and Flagons - Thursday, Oct 21, 21 @ 10:58 am:

    Friday, sales tax still applies, cook county levied an additional tax on guns and ammo, the courts decision was correct.

    Bothanspied, absolutely.


  15. - theCardinal - Thursday, Oct 21, 21 @ 10:59 am:

    “Wayward” Lots of people were doing just that. Buying ammo etc out of Cook co. Cost savings of $2.50 on a box of shotgun shells to go to trap range is significant when you shoot 100 plus rounds in a session.


  16. - WestBurbs - Thursday, Oct 21, 21 @ 11:27 am:

    As a former recreational shooter and (current) anti-violence guy, I’m puzzled by efforts like this. Why not just enforce reasonable gun laws, including universal background checks, and stiff punishment for violating possession, sale laws? Combine this with justice reform that lowers incarceration rates for non-gun crimes and maybe we make some real progress. Polls show that most gunowners go along with enforcing most gun laws…


  17. - Donnie Elgin - Thursday, Oct 21, 21 @ 11:38 am:

    ” Why not just enforce reasonable gun laws, including universal background checks”

    I have posted about this dozens of times - in IL We have universal background checks. All firearms sales/transfers are covered - every purchaser must have a valid FOID and the seller must check the status of that FOID - allow for the 72 hour waiting period for long guns and handguns. There there is no gun show loophole. Private sales are covered as are inherited guns. Guns bought at stores or out-of-state online orders must be processed through an FFL sale. All of the above require a background check and waiting period, and the seller has to keep the paperwork for 10 years.


  18. - Blue Dog - Thursday, Oct 21, 21 @ 11:42 am:

    ‘Shoots down’. That’s catchy.


  19. - The Dude Abides - Thursday, Oct 21, 21 @ 11:52 am:

    Chicago has a past record of not respecting the rights of law abiding gun owners. They banned ownership of handguns of its citizens until the high court told them they couldn’t do that. That makes you wonder what the real intent of this tax was.
    I do agree with passing reasonable laws that make it more difficult for criminals to get their hands on guns.


  20. - Brett Bellmore - Thursday, Oct 21, 21 @ 12:07 pm:

    This is one of those decisions where the court, in ruling for the plaintiff, draws a road map for the defendant on how to win next time.

    In this case, the court is telling Cook County that next time, direct the revenue to something gun related, and the court will find in their favor.

    “Since our holding disposes of this case, we need not address plaintiffs’ additional challenges to the ordinances.”

    Thus carefully avoiding addressing any issues that would get in the way of Cook County doing this again with the court’s fix in place. So that the county will be able to harass gun owners one more time before getting a legal beatdown delivered by a higher court.


  21. - theCardinal - Thursday, Oct 21, 21 @ 1:01 pm:

    From the Background NPR article:
    “At least we’re going to make it difficult for people to have guns,” County Board Commissioner Deborah Sims said in November 2012. “If you can’t afford it, you won’t buy it.”
    The issue was then and is now; criminals are not buying guns over the counter (usually) and guessing they don’t pay a tax on their illegal purchases.


  22. - Anonymous - Thursday, Oct 21, 21 @ 2:07 pm:

    They won’t be able to fix it, ultimately, because there is too much evidence that they enacted this tax openly to dampen the sales of guns and ammo. This is no different than taxing newsprint to hurt the press.


  23. - Huh? - Thursday, Oct 21, 21 @ 3:00 pm:

    “Cost savings of $2.50 on a box of shotgun shells”

    Do you seriously think that the gun stores are going to lower the price of ammo because the tax is repealed? Buyers are already accustomed to the price. The extra $2.50 will become extra profit.


  24. - Ben Tre - Thursday, Oct 21, 21 @ 3:37 pm:

    I think Texas has provided the answer to Chicago’s gun violence problems: pass an ordinance allowing anyone to sue a gun user, gun manufacturer, or ammunition manufacturer for the use of a gun in a crime. This even gets around the problem of identifying the gun user, as shell casings at a crime scene would be sufficient evidence to sue.


  25. - Brett Bellmore - Thursday, Oct 21, 21 @ 4:09 pm:

    “pass an ordinance allowing anyone to sue a gun user, gun manufacturer, or ammunition manufacturer for the use of a gun in a crime.”

    They already tried that, the result was the Lawful Commerce Act, barring lawsuits premised on that sort of indirect liability.

    The basic problem the gun controllers have isn’t that the 2nd amendment is in the Constitution, it’s that it’s fairly popular, so gun control really only has a local appeal.


  26. - Padraig - Thursday, Oct 21, 21 @ 9:29 pm:

    The U.S.S. Ct. was wrong in it’s interpretation of the 2nd. Amendment and the right to bear arms by militia. Justice Stevens lamented it in his book and talked about it incessantly until his death.


  27. - Elmer Keith - Thursday, Oct 21, 21 @ 10:06 pm:

    Some background for those outside the “pro-gun” (cough) movement: Champaign County Rifle Association, now doing business as Guns Save Life, started as a county affiliate of ISRA. GSL is a creature of John Boch, a U of I grad who used to be one of the young turks pushing Richard Pearson and the oldsters at ISRA to advance concealed carry, before he became what he used to hate.

    After Valinda Rowe, Boch, and NRA lobbyist Todd Vandermyde sold out Otis McDonald and every gun owner yet unborn to the anti-gun police unions in Brandon Phelps’ carry bill, Boch has now changed his title to “executive director” of GSL, the same as his old nemesis Pearson at ISRA. “Gun rights” is a full time business for these sellouts.


  28. - We've never had one before - Thursday, Oct 21, 21 @ 10:43 pm:

    >>>>The basic problem the gun controllers have isn’t that the 2nd amendment is in the Constitution, it’s that it’s fairly popular

    Gosh, there’s a lot of constitutional amendments that are “fairly popular”.

    But it’s not about popularity, it’s about civil rights, and that’s not a popularity contest. The majority of the voters cannot whisk away the rights of a section of society, even if they comprise a minority.


  29. - We've never had one before - Thursday, Oct 21, 21 @ 10:49 pm:

    Elmer,
    Come on, man, give it a rest and give John his due. This is his day.


  30. - Todd - Friday, Oct 22, 21 @ 8:21 am:

    Elmer to bad for you this was a lawsuit I brought to NRA was green lighted by chris Conte and at my suggestion brought in GSL as the organizational plaintiff


  31. - JJJJJJJJJJ - Friday, Oct 22, 21 @ 9:32 am:

    The truth is there’s not much we can do with gun control laws at the state level. Certainly we can better enforce what we have and prevent the Aurora shooting. But, we could have pristine gun laws and still guns would reach bad actors since we are a long narrow state that borders states with weaker laws and since bad actors always circumvent.

    Now violence prevention on the other hand is possible. Perhaps we should invest more in communities that see a lot of violence.


  32. - PJB - Thursday, Oct 28, 21 @ 12:59 pm:

    So when do I get my refund?


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