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Illinois Supreme Court Weighs Constitutionality Of Cook County Tax On Guns And Ammo

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. 

Prior to oral arguments, Guns Save Life’s plaintiff’s brief referenced various statements made by County Board members when the policy was first passed, to convince the court of bias against firearm purchases in the board’s legislative intent. 

“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.” 

Proponents of the firearm and ammunition tax — who won favorable rulings in the lower court decisions — argue the revenue collected goes toward combating gun violence throughout the county.

Martha-Victoria Jimenez, an attorney representing Cook County, referenced the financial strain gun violence has had on public services like the county’s hospital system. 

“In 2017 alone, it treated 1,100 gunshot patients, spending anywhere from $30,000 to $50,000 on each,” Jimenez said. “This doesn't include the staggering expenses borne by the Cook County sister criminal justice agencies that actually have to deal day to day with gun crimes. The taxes at issue are a local solution that was devised by the county to defray these staggering expenses unique to Cook County.”

But plaintiff attorney Pete Patterson argued case law was on Guns Safe Life’s side, pointing out the Illinois Supreme Court had previously ruled against placing taxes on fundamental rights, regardless of whether the tax funds public aid initiatives. 

Back in the 1980s, Illinois placed a $10 tax on marriage license fees for counties with a population over one million. Revenue collected from the tax went to the Domestic Violence Shelter and Service Fund.

However, in Boynton v. Kusper (1986), the state Supreme Court ruled the tax unconstitutional. 

“The court held that a tax on a fundamental right is not a reasonable way to raise revenue to pay for [a] general welfare program,” Patterson said “We have the same structure here where it's a tax on a fundamental right meant to pay for general welfare programs.”

Although the defense argued the firearm tax should be considered an insignificant or “de minimis” burden, Justice Michael Burke said even small fees go against the analysis reached in Boynton

“A $10 fee may be de minimis, but once we give you the power to tax then all of a sudden it turns into a $1000 fee,” Burke said during arguments Thursday. “This is a $25 fee that if we give Cook County the right to tax, it could turn into a $250 or a $2500 fee, especially based on the preamble to the statute which is basically ‘we're doing this to try and keep guns out of the system.’”

Patterson also argued he does not need to show a fee is overly burdensome in order to prove his argument. He said taxes, like sales taxes, can be applied to goods like firearms as long as they are generally applicable and do not single out a fundamental right. 

“Under the use tax that was struck down in Boynton, there was no evidence that anyone's marriage plans were affected,” Patterson said. “It is the fact of the special tax that constitutes the burden.”

Jimenez, however, cautioned the court to not conflate rulings made on one fundamental right and try to apply it to another. 

“While all fundamental rights are co-equal, they are not the same and they're not dealt with the same,” Jimenez said. “Each fundamental right has its own distinct body of case law that has been developed over our 200 years of American jurisprudence. And the Second Amendment is unique from the other fundamental rights.”

Justice Mary Jane Theis, however, referenced the ruling made in District of Columbia v. Heller (2008), in which the U.S. Supreme Court affirmed that while an individual does have a right to bear arms, certain limitations still apply. 

“[Former U.S. Supreme Court Justice Antonin Scalia] said ‘nothing in our opinion should be taken to cast doubt on longstanding prohibition on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,’” Theis said. “Clearly, the Heller decision looked at the issue when there is a commercial sale of arms.”

The Heller decision paved the for concealed carry in Illinois in 2013.

Jimenez also referenced the 2017 Washington state supreme court ruling which found in favor of a similar firearm tax enacted in Seattle. 

“While there wasn't a Second Amendment analysis in that case, the fact that there wasn't a Second Amendment analysis is what's instructive for our purposes,” Jimenez said. “It implies that the tax was considered to be safe from constitutional infringements in the post-Heller era.”

The Illinois Supreme Court will decide the case later this year.

Derek Cantù is NPR Illinois' graduate student Public Affairs Reporting intern for the spring 2021 legislative session.
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