Cook County's tax on the sale of firearms and ammunition should continue to be treated as unconstitutional, a Cook County judge has ruled, saying the county's decision to find new destinations for the tax money doesn't render superfluous a decision by the Illinois Supreme Court striking down the tax more than three years ago.
On Jan. 10, Cook County Judge David Atkins granted summary judgment to Guns Save Life, a pro-Second Amendment rights group engaged in a long-running court fight challenging the constitutionality of Cook County's so-called gun and ammo tax.
In the ruling, Atkins said he had no choice but to rule in favor of the plaintiffs after the Illinois Supreme Court struck down the tax.
John Boch
| Guns Save Life
The court fight dates back to 2015, when Guns Save Life, together with a Des Plaines gun shop and firing range owner, and an individual Cook County gun owner filed suit.
The first version of the tax was implemented in 2012, when Cook County Board President Toni Preckwinkle and the Cook County Board of Commissioners enacted a $25 fee on the purchase of firearms in the county.
Three years later, the county government followed with a measure imposing taxes on ammunition of either a penny or 5 cents per cartridge, depending on the type of ammunition.
The taxes have been just a part of a years-long campaign by gun control advocates and their allies in Chicago and Springfield to either ban or restrict the ability of Illinoisans to legally own and use a wide range of firearms in Cook County and elsewhere in Illinois.
Most recently, Illinois state lawmakers approved new legislation to force police to confiscate firearms from anyone who may have an order of protection imposed on them, whether or not they have have been charged or convicted of a crime. Critics have said the law would rob gun owners of their constitutional rights, as gun owners would be given no opportunity to contest the seizure of their property before a court orders it.
Gov. JB Pritzker is expected to sign that measure into law, with likely court challenges to follow.
Illinois also faces a host of ongoing legal challenges to the state's ban on so-called "assault weapons" and so-called large capacity magazines. Those legal actions are pending before the U.S. Seventh Circuit Court of Appeals. The fate of the Illinois gun ban law, however, could ultimately be decided by the U.S. Supreme Court, either as part of proceedings directly addressing Illinois' law or in a decision from the high court deciding the constitutionality of a very similar gun ban law in Maryland. The high court is currently deciding whether to take up a case challenging the Maryland law.
And legal challenges also remain pending in federal court in Chicago seeking to strike down a similar local "assault weapons" ban ordinance in Cook County.
However, in 2021, gun owners' rights advocates scored a significant win before the Illinois Supreme Court when that court's Democratic majority agreed Cook County's gun and ammo taxes were unconstitutional.
Guns Save Life and their co-plaintiffs had argued the fees and taxes violated their rights to keep and bear arms, enshrined in both the U.S. and Illinois state constitutions. They also argued the taxes and fees violated another provision of the Illinois state constitution, known as the uniformity clause.
Those arguments lost in both Cook County court and at the Illinois First District Appellate Court, which upheld the county's taxes and fees as constitutional.
In a ruling in 2021, the Illinois Supreme Court said the taxes and fees are unconstitutional.
The high court, however, largely sidestepped the Second Amendment questions. Rather, justices found the taxes should be invalidated by the uniformity clause.
That provision governs the manner in which the Illinois state government and its so-called local subdivisions – in this case, county governments – can impose taxes on Illinois residents.
Essentially, the uniformity clause has been interpreted by the Illinois Supreme Court, in part, to require state and local governments to make the tax line up with its stated purpose.
In this case, the Illinois Supreme Court said, Cook County enacted the taxes with the stated purpose of helping Cook County raise money to offset some of the “staggering economic and social cost of gun violence in Cook County.”
But in its 2021 decision, the Illinois Supreme Court ruled the Cook County gun and ammo taxes failed to hold up under the uniformity clause, because the county never specified that the funds from the taxes would actually be used to accomplish those goals.
The justices said that standard is required in this instance, specifically because the taxes burdened the ability of Cook County residents to exercise a constitutional right.
In response to the ruling, Cook County officials quickly revised the gun and ammo tax ordinances to pecifically direct tax money to programs and agencies the county claims will combat gun violence and deal with its effects.
Back in Cook County court, Cook County attorneys argued these changes addressed the Illinois Supreme Court's uniformity clause concerns and should mean the courts can again try to pull the plug on the challengers' legal action.
However, in his ruling, Judge Atkins said simply changing which county or community programs benefit from the taxes doesn't undo the Illinois Supreme Court's ruling or render the plaintiffs' challenge moot.
"The Illinois Supreme Court has made clear that 'where a case has been tried in this court, and remanded with specific directions to dismiss the bill, or do some other act, the court below has no power to do any thing but carry out the specific directions,'" Atkins wrote. "Defendants (Cook County) argue this court should do otherwise because the challenged portion of the Taxes was later amended to at least arguably impact the merits of the uniformity clause claim or even render it moot.
"But it is simply not within this court's power to consider those merits any further..." Atkins wrote.
In his order, Judge Atkins entered judgment in favor of the challengers and against the county, "consistent with the Opinion of the Illinois Supreme Court filed in this matter October 21, 2021."
It is not known if the county will appeal the matter, perhaps directly to the Illinois Supreme Court once more, as Atkins indicated the state high court is the only court that can provide the ruling the county seeks.
In a post to their website, Guns Save Life celebrated Atkins' ruling.
"We filed our lawsuit challenging the Cook County gun and ammo tax back in 2015. Yeah, it’s been a few years. We lost all the way up to the Illinois Supreme Court which handed us a victory in striking down the lower courts rulings against us," Guns Save Life wrote in a post attributed to Executive Director John Boch.
"Yeah, that was pretty sweet ... And today, the Cook County Circuit Court handed us another victory in the case.
"It's a simply order: Two pages. Which speaks volumes."
The decision is likely to be picked up by others who are suing Cook County seeking refunds for gun owners who have paid the apparently unconstitutional taxes.
That case, filed in 2022 by plaintiffs Donald Todd Vandermyde and Ana Zavala, was initially tossed by a Cook County judge, citing other rulings declaring the tax constitutional.
That ruling, however, was tossed in early 2024 and the case reinstated by an Illinois state appeals court, who said Cook County Judge Eve M. Reilly wrongly relied on decisions that had been overturned by the Illinois Supreme Court.
In her ruling, Reilly had declared the ordinance should be considered constitutional because the state Supreme Court had sidestepped the Second Amendment questions surrounding the taxes and fees.
But a unanimous three-justice panel of the Illinois First DIstrict Appellate Court ruled in February 2024 that Reilly cannot declare constitutional a tax that the state Supreme Court has called unconstitutional.
That appeals court affirmed that the county's gun and ammo taxes cannot withstand the scrutiny applied by the Illinois Supreme Court, because the taxes burden a protected constitutional right and are not assessed merely to offset the county's administrative costs or even to fund the county's public safety-related offices and programs.
"The taxes here aim to raise revenue to fund the County’s gun violence prevention programs with no connection to the administration of any regulation," wrote First District Appellate Justice Nathaniel Howse in the Feb. 20, 2024 ruling.
"The taxes are imposed exclusively for revenue purposes to fund the County’s policy objectives and priorities, and the revenue is not used to cover government costs incurred while regulating the act of purchasing a firearm.
"Accordingly, the tax cannot be countenanced as a permissible fee that can be assessed to a person in conjunction with that person’s exercise of the Second Amendment right," Howse wrote.
The lawsuit seeking refunds for gun owners remains pending in Cook County Circuit Court.
Plaintiffs in that case are represented by attorneys from the Zimmerman Law Offices, of Chicago.