Second Amendment Foundation Director of Legal Research and Education Kostas Moros has released a blistering attack on the special taxes imposed on the sale of firearms and ammunition that we've seen from blue states like Colorado and California in recent years, but his arguments might result in some pushback from some members of the firearms industry and conservation groups as well as anti-gun activists.
That's because Moros isn't just going after the excise taxes put in place by anti-gun politicians who want to make it more expensive to exercise our right to keep and bear arms. He's also taking aim at the nearly century-old federal tax on arms and ammunition that generates millions of dollars a year for wildlife conservation and range access.
To be fair, I don't think there's any way for Moros to go after the excise taxes imposed by blue states while exempting the Pittman-Robertson Act from his arguments. In fact, those in favor of the state-level taxes point directly to Pittman-Robertson as justification for their own special taxes, even though the revenue that's generated in Colorado and California is directed at "gun violence" programs and not conservation.
Moros's argument is pretty simple, and it's also rock-solid as far as I'm concerned.
The historical record is clear: prior to 1900, the few laws that taxed weapons were limited to items like bowie knives and pocket pistols, which were weapons many contemporaries regarded as falling outside Second Amendment protection. Even then, those taxes were outliers mostly found in southern states, and sometimes applied only when such arms were carried rather than merely purchased. They conspicuously and almost uniformly excluded the prevailing combat arms of the day. Taxes on the arms seen as most useful for lawful purposes were essentially nonexistent, and under Bruen, that makes modern taxes imposed on the sale of arms unconstitutional. That includes excise taxes like those passed by California and Colorado, the federal Pittman-Robertson excise tax that has been in place since 1937, and any taxes imposed by the National Firearms Act to the extent they apply to commonly owned arms. All are repugnant to the Second Amendment and should be stricken by courts.
As Moros notes, some supporters of these state-imposed taxes have been open about their intended effect. Gavin Newsom called California's 11 percent excise tax on firearms, firearm precursor parts, and ammunition sold at retail a "sin tax" when he signed it into law, which suggests that no matter how much Newsom might claim otherwise, he views those of us exercising our Second Amendment rights as sinners.
Moros also points out that the Supreme Court decided long ago that special taxes imposed on the exercise of our First Amendment rights are unconstitutional. He believes that those laws are applicable to excise taxes on those items necessary to exercise our Second Amendment rights too, but argues that even if courts only look at the historical tradition of gun regulation in the United States, the justification for these taxes falls apart. In fact, the laws that Moros cites suggest more of a tradition of exempting these items from taxation instead of one that allows for multiple layers of taxes to be applied.
Specifically, “The Great Patent of New England,” issued by King James I of England on November 3, 1620, stated that for the first seven years of the colony’s existence, New England colonists could freely import arms, armor, powder, and other military supplies without paying any customs duties or import taxes either when importing them into the colony, or exporting them for sale abroad. Some of the earliest Virginia colonial charters did the same, with the Second Charter of Virginia declaring in 1609 that the colonists could equip themselves with sufficient “Armour, Weapons, Ordinance, Munition, Powder, [and] Shot” without “paying Subsidy, Custom, Imposition, or any other Tax or Duty.”
A 1762 New York City ordinance was likewise concerned with keeping down the cost of arms. It imposed a price control on the rate “cart-men” could charge for transporting gunpowder around New York City, setting the maximum at 2 shillings and 6 pence for up to 4 casks of gunpowder.
... The closest thing to an excise tax on arms or ammunition in the colonial era was a 1759New Hampshire law that required foreign ships that weighed over 30 tons entering port to pay a tax of two shillings per ton of gunpowder in order to support “his Majesty’s fort and fortifications within this province.” This was not a tax that applied to all arms or ammunition, but instead a port duty on imported powder, applied only to foreign ships. It differs fundamentally from a modern excise tax on retail firearm sales. Moreover, it appears to be an outlier; similar laws are sparse or nonexistent elsewhere in the colonial record. As Justice Kavanaugh noted in Rahimi, “in using pre-ratification history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind.”
The Founders did impose tariffs on the importation of gunpowder and arms, but as Moros points out, both the "how" and "why" of those regulations differ from the modern-day excise taxes imposed on arms and ammunition. The tariffs were protective in nature, and meant to aid in the establishment of a domestic firearms industry, not make it more expensive for Americans to exercise their Second Amendment rights.
If the Pittman-Robertson tax applied to all sporting goods or items associated with outdoor activity, it might withstand constitutional muster. 'That might also open the door, though, for the Pittman-Robertson funds to be used for anti-hunting and shooting efforts, not just wildlife conservation and public range projects.
I'm interested to see what kind of feedback/pushback Moros gets for touching one of the third rails of Second Amendment advocacy. Pittman-Robertson may have been put in place with the endorsement of many sportsmen 90 years ago, and the money it generates may go to causes that are broadly acceptable and even appreciated among most gun owners. That doesn't automatically make it constitutional, though. Instead, based on Moros's research, I'd say that it and the other state-level excise taxes are incredibly vulnerable to legal challenges.
