On October 21, 2021 the IL Supreme Court struck down the Cook County Gun & Ammo Tax on uniformity grounds. You may read the entire decision here. We, and the entire firearms community around Chicago, celebrated the end of this unconstitutional tax. In a triumph of Hope over Experience we expected the County to take its loss and move on, as they did with the sweetened beverage tax, but unfortunately that is not the case.
is the Cook County Gun & Ammo Tax COMING back?
Exactly two weeks later on November 4, 2021, the Cook County Board voted 12-2 to reinstate the gun and ammo tax, with no debate or witness testimony. They took this action before the Supreme Court's Opinion was acted on by the Circuit Court (issuing summary judgement to us). Essentially, they're trying to sneak it back in before it is officially discarded via summary judgement. Having had the opportunity to review the amendment to the original tax, we believe that what the Board did in amending this tax is itself unconstitutional.
This was not unexpected, especially given Justice Michael Burke’s consenting opinion, but still disappointing.
Justice Burke wrote:
"I write separately because I believe that there is an even graver problem with the County’s tax that the majority should not ignore.
Article I, section 22, of the Illinois Constitution states that “the right of the individual citizen to keep and bear arms shall not be infringed” and is “[s]ubject only to the police power.” Ill. Const. 1970, art. I, § 22. The majority agrees that the taxes in this case burden the fundamental second amendment right to keep and bear arms. See supra ¶ 28; U.S. Const., amend. II. The majority also notes that “we are not considering a reasonable regulation on the purchase of firearms or a generally applicable tax on the sale of goods.” Supra ¶ 36. Rather, the County has imposed a special tax on the purchase of firearms and ammunition. Supra ¶ 20.
The majority’s analysis is problematic because it leaves space for a municipality to enact a future tax—singling out guns and ammunition sales—that is more narrowly tailored to the purpose of ameliorating gun violence."
IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 126014) GUNS SAVE LIFE, INC., et al., Appellants, v. ZAHRA ALI, Director of the Department of Revenue of Cook County, et al., Appellees.
In a 6-0 unanimous decision, the Supreme Court ruled that the tax is unconstitutional based on the Illinois Constitution’s Uniformity clause: “In 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.” The court said it had to determine whether the taxes bore some reasonable relationship to the object of the legislation or public policy.
Basically, here are the problems:
- You can’t tax a group for the benefit of the general welfare
- You must show a relationship between the subjects of the taxation and the legislative goals of the tax
- Article 1, Section 22 of the Illinois Constitution states plainly: “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” A tax clearly falls outside of this restriction.
The Supreme Court writes: “We agree that the ordinances impose a burden on the exercise of a fundamental right protected by the second amendment. But unfortunately, the majority chose not to work that constitutional violation into their opinion.
"…we are not considering a reasonable regulation on the purchase of firearms or a generally applicable tax on the sale of goods. Instead, the County has singled out the retail purchase of firearms and ammunition as “a special object of taxation.”2 Thus, we hold that, where a tax classification directly bears on a fundamental right, the government must establish a closer tie between the tax classification and the object of the legislation. To pass scrutiny in that instance, we hold that the tax classification must be substantially related to the object of the legislation."
Before the Appellate court, the county’s attorney sought to argue that the right to keep and bear arms is not a fundamental right.
Shocking, right? The court offered her the opportunity to back off that position, and she did not. So there you have it: Cook County’s position was (is?) that your right to keep and bear arms is not a fundamental right. We believe the Illinois and US Constitutions hold a somewhat different view.
Criminal misuse of firearms by violent offenders in no way relates to the lawful use of firearms and ammunition by law-abiding citizens. Period. Full Stop.
95% of criminal offenders incarcerated in the Cook County Jail obtained their weapons illegally – on the street, through their social networks, by stealing them, etc.
Criminals primarily do not obtain weapons through our legal channels, the channels the County seeks to penalize. Source
In their arguments, the County tried to justify this unconstitutional tax on the basis of costs borne by taxpayers.
Ok, let’s look at some numbers.
The County says each gunshot victim costs the County $30-50,000. This unconstitutional tax raises approximately $1.2 Million per year, or the cost of treating 30 victims. While penalizing the law abiding with this tax, the Cook County justice system has also embarked on a no-bail spree that has resulted in 48 instances so far this year of killing, attempting to kill, or shooting someone in Chicago (not the whole County) while awaiting trial for a felony. Source.
Math time: 48 * $40,000 is $1.9 million cost borne by the county for catch-and-release bond court, which involves suspected criminals, not law abiding gun and ammo purchasers. That’s even more than the $1.2 million extracted by the county with this tax.
But you, a law-abiding citizen, must pick up the cost to the county for the actions of violent offenders.
I’m not a part of the judicial system, and maybe I’m not that smart, but I think that if you simply incarcerated suspects in violent crimes until their trial, then you could reduce the mayhem in Chicago alone by at least 48 instances year to date. It’s how it works in neighboring counties and how things should work here.
Is there a connection between you, the lawful gun / ammo buyer, and violent criminal offenders?
Is there a connection between our lawful business and violent criminal offenders? The University of Chicago Crime Lab says emphatically “NO.” Source 1.5% of the weapons used by inmates in the Cook County jail with a known acquisition were purchased from an FFL. One and a half percent, but we are the problem?
So, what’s next?
As of right now we will definitely not collect any gun/ammo taxes until November 15, 2021. Between now and then, we will be busy pushing back against this action by the Board on procedural and constitutional grounds.
Of course we also will appeal though, and rather than get bogged down in Cook County Circuit and Appellate courts for another six years, we will look to return directly to the Supreme Court and seek injunctive relief from collecting this tax. The majority pointed out that the tax burdened the exercise of a fundamental right, but chose to limit the scope of its opinion to Uniformity:
“Since our holding disposes of this case, we need not address plaintiffs’ additional challenges to the ordinances.”
Well, now it appears the Court will need to address plaintiffs’ additional challenges.
Cook County had the chance to engage in good governance and responsible use of resources. Instead, they chose to ram through a small technical fix to an entirely unconstitutional tax. It will go back to court, we will spend time and money, our attorneys will spend time and money, the county will spend time and money, the courts will spend time and money, and at the end of the day it will get thrown out all over again.
Thanks again to our customers who have supported us and the other shops fighting this tax. We know you can shop elsewhere, and we truly value our relationships with all of you. We won the first time, and we will win again.