On October 21, 2021, the Illinois Supreme Court struck down two Cook County gun and ammunition tax ordinances as violations of the state constitution’s uniformity clause.[1] The case, Guns Save Lives, Inc. v. Ali,[2] revolved around a county-specific $25 tax on the retail purchase of firearms [“firearm tax”], a five cent-per-cartridge tax on the retail sale of centerfire ammunition, and a one cent-per-cartridge tax on the retail sale of rimfire ammunition [collectively, the “ammunition tax”]. The revenue generated from the firearm tax was not directed toward any specific fund or program, while the revenue generated from the ammunition tax was directed toward the general public safety fund.

The plaintiffs – a resident of Cook County, a Cook County gun store, and an Illinois Second Amendment advocacy group – filed suit against the County, seeking injunctive and declaratory relief. They argued, in part, that the taxes constituted facial violations of the Second Amendment and the corresponding provision of the Illinois Constitution, and that they were preempted by aspects of the state’s Firearm Owner’s Identification (FOID) Card Act and Concealed Carry Act. Importantly, the plaintiffs also alleged that the taxes violated the state constitution’s uniformity clause, which 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, credits, refunds and other allowances shall be reasonable.”[3]

The state trial court held that the individual and retailer plaintiffs lacked standing with respect to the firearm tax, but that the advocacy group had associational standing to assert claims challenging both ordinances. The trial court then granted summary judgment in favor of the defendants, determining that the taxes constituted a proper exercise of Cook County’s home rule taxing powers and did not meaningfully impede the plaintiffs’ ability to exercise their right to keep and bear arms. Moreover, nothing in the language of the FOID Card Act or Concealed Carry Act preempted the county’s taxing powers. Finally, the trial court concluded that the taxes did not violate the uniformity clause because they were substantially related to an important government interest, with revenue directed toward gun violence prevention.

The state appellate court affirmed the grant of summary judgment in favor of the County, finding, among other things, that the taxes did not restrict the plaintiff’s ability to possess firearms and ammunition and did not violate the uniformity clause because the tax classifications were reasonably related to the objectives of the ordinances.[4]

A unanimous Illinois Supreme Court reversed and remanded with instructions to grant summary judgment in favor of the plaintiffs.[5] The court began its analysis by agreeing with both parties that the case involved only the County’s taxing authority, and not the exercise of its regulatory powers. Accordingly, it first addressed the uniformity clause claim under the Illinois constitution, which it found dispositive of the issue. It explained that “[g]enerally, to survive strict 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.”[6] Because the plaintiffs had earlier abandoned their arguments under the first prong, the court’s inquiry focused on the second prong requiring a reasonable relationship between the tax and the stated object of the tax.

The court agreed with the plaintiffs that the ordinances imposed a burden on the exercise of a core fundamental right to acquire a firearm and the ammunition necessary to use the firearm for self-defense. Acknowledging that this presented a new issue for which it had no analytical framework, the court looked to frameworks it had applied in similar contexts, including Boynton v. Kusper,[7] where it struck down a $10 tax on marriage licenses with revenue dedicated toward the prevention of domestic violence. Informed by its analysis in these parallel cases, the court concluded that “where a tax classification directly bears on a fundamental right…the tax classification must be substantially related to the object of the legislation.”

The court concluded that, while the uniformity clause was not designed as a “straight jacket” imposed on counties and the effects of gun violence are certainly devastating, the taxes and the use of their proceeds in this case were “not sufficiently tied to the stated object of ameliorating these costs.” The firearm tax ordinance did not direct revenue to any particular fund or program, much less one closely related to preventing gun violence, while the revenue generated from the ammunition tax was merely directed to a general public safety fund. The court explicitly declined to address the plaintiffs’ other legal challenges.

Justice Michael J. Burke wrote a concurring opinion, agreeing that the county’s special tax on firearms and ammunition violated the state constitution’s uniformity clause.[8] He took issue, however, with the majority’s analysis “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.”[9] He accused the majority of “leading the County down a road of futility” because such an approach would still violate the Illinois Constitution. Justice Burke noted that, under article I, section 22 of the state constitution, the “right of the individual citizen to keep and bear arms” is “subject only to the police power.”[10] Therefore, “while the government may regulate the right to keep and bear arms (within other constitutional limits, under its police power), by the plain terms of article I, section 22, it has no authority to single out the exercise of that right for taxation.”[11]

Addressing arguments proffered by the defendants but unaddressed by the majority, Justice Burke noted that the “only result permitted by the plain text” of article I, section 22, is that the right cannot be subject to discriminatory taxation measures under the guise of the police power:

Even if the statutes mentioned by the County did intend to specifically preserve for home rule units the power to tax handguns in the manner under consideration here, that would not show that the framers of our constitution intended to authorize a home-rule unit’s discretionary taxation of firearms, where the text of that constitution clearly prohibits taxation that infringes on the right to keep and bear arms.[12]

The Cook County Board of Commissioners very quickly appeared to take a page from Justice Burke’s hypothetical playbook on circumventing the court’s analysis. On November 4, just two weeks after the Illinois Supreme Court’s issued its ruling, the commission approved an amendment to the tax ordinances, specifically directing revenue toward gun violence prevention programs.[13]

[1] See Cook County Code of Ordinances ch. 74, art. XX, §§ 74-665 through 74-675 (County Code). The firearms tax was adopted November 9, 2012, while the ammunition tax was adopted as an amendment to the same code section on November 18, 2015.

[2] 2021 IL 126014 (Ill. 2021).

[3] Ill. Const. art. IX, § 2.

[4] See Guns Save Lives, Inc. v. Ali, 2020 IL App (1st) 181846 (Ill. App. 2020).

[5] Chief Justice Anne M. Burke took no part in decision.

[6] Guns Save Lives, Inc. v. Ali, 2021 IL 126014, ¶ 20 (Ill. 2021) (referencing Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (Ill. 2003)).

[7] 112 Ill. 2d 356 (1986) (striking down a $10 tax on marriage licenses as violating the due process clause and finding that the relationship between the purchase of a marriage license and domestic violence was too remote to satisfy the rational basis test, while also finding that the tax directly impeded the fundamental right to marry and that it failed to satisfy a heightened standard of review).

[8] Guns Save Lives, Inc. v. Ali, 2021 IL 126014 (Ill. 2021) (Burke, J., concurring).

[9] Id. at ¶ 47.

[10] Ill. Const. art. I, § 22.

[11] Guns Save Lives, Inc. v. Ali, 2021 IL 126014, ¶ 46 (Ill. 2021) (Burke, J., concurring).

[12] Id. at ¶ 50.

[13] See Alice Yin, Cook County Guns and Ammo Tax, Struck Down by Illinois Supreme Court, Is Back on the Books for Now After Thursday Board Vote, Chi. Tribune (Nov. 4, 2021 at 6:10 PM), https://www.chicagotribune.com/politics/ct-cook-county-guns-ammo-tax-20211104-n2bp6pxxq5a6jkdwotjeqotzza-story.html.

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