CHICAGO — A state appeals panel shot down a lawsuit challenging the constitutionality of Cook County’s gun-sale fee and ammunition tax.
Nonprofit advocacy group Guns Save Life, Maxon Shooter’s Supplies and Indoor Range, of Des Plaines, and individual gun owner Marilyn Smolenski sued Cook County, Sheriff Tom Dart and Revenue Department Director Zahra Ali in December 2015. They said a $25 fee on guns and taxes of a penny-per-cartridge of rimfire ammunition and 5 cents for each cartridge of centerfire ammunition violated the Second Amendment and the state constitution’s uniformity clause. They argued the taxes and fees also were preempted by the state's Firearm Owners Identification and Concealed Carry laws.
In October 2016, Cook County Judge David Atkins first partially dismissed the lawsuit on the grounds Maxon and Smolenski didn’t have full standing to challenge both taxes. In August 2018, Atkins granted summary judgment in favor of the county defendants, finding the taxes to be legal under the county’s home rule taxing powers and not meaningful impediments to exercising Second Amendment rights. He also noted that the plaintiffs didn’t demonstrate how the different tax levels violated the uniformity clause.
The defendants challenged those rulings before the state's First District Appellate Court in Chicago. Justice Shelvin Hall wrote the opinion, issued March 13; justices Mary Rochford and Thomas Hoffman concurred.
The panel endorsed Atkins’ partial dismissal, noting neither tax burdened Maxon since it didn’t have to pay anything or incur additional expense for computing and reporting on customer transactions. Smolenski lacked standing with respect to the firearm tax because she hadn’t bought a gun in Cook County, only ammunition, meaning she was only allowed to challenge the ammo taxes.
Hall said the argument against summary judgement was essentially “that because the right to keep and bear arms (and by implication the right to acquire ammunition) is a constitutionally protected fundamental right, there can never be any government restriction or limitation on such right.”
However, she continued, both the U.S. and Illinois supreme courts have repeatedly held governments can enact limitations on that right by meeting certain criteria.
“It is clear that the challenged taxes on the purchases of firearms and certain types of ammunition within the county do not restrict the ownership of firearms or ammunition,” Hall wrote. “The taxes at issue are more akin to various other types of sales taxes imposed on the purchase of goods and services — the responsibility of paying such taxes falls on the consumer and are collected by the retailer because of the impracticality of the county collecting such tax from the consumer.”
The panel further noted that people who bought guns and ammunition before the tax went into effect in 2012 already paid sales taxes on such purchases. Finding the taxes to be in line with the Second Amendment, the panel didn’t consider the arguments about the county’s taxing power.
Instead, the analysis turned to an examination of the uniformity clause. While the plaintiffs said the tax was unfair because it could only apply those with an FOID card, the panel agreed with the county’s position that it applies its tax equally throughout the county. Further the justices said the county was justified in having a higher tax on the allegedly more lethal centerfire ammunition because the county claims to use the funds to finance medical services for gun violence victims.
Finally, the panel said although the Illinois FOID and Concealed Carry laws preclude local laws regulating possession of guns and ammunition, the county can use its so-called home rule taxing powers to impose the taxes. The justices said the state's General Assembly is barred from usurping that authority.
The plaintiffs have been represented in the case by attorneys with the firm of Stone & Johnson, Chartered, of Chicago.