Guns Save Life, Inc. v. Ali , 2021 IL 126014 ( 2021 )

2021 IL 126014IN 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.
Opinion filed October 21, 2021.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Garman, Neville, Overstreet, and Carter concurred in the judgment and
opinion.
Justice Michael J. Burke specially concurred, with opinion.
Chief Justice Anne M. Burke took no part in the decision.
OPINION
¶1 This case involves a challenge to two tax ordinances imposed by Cook County
on the retail purchase of firearms and firearm ammunition. The circuit and appellate
courts upheld the taxes against challenges based on the second amendment to the
United States Constitution, the Illinois Constitution, and state preemption. 2020 IL
App (1st) 181846. For the following reasons, we reverse, in part, the judgment of
the appellate court.
¶2 BACKGROUND
¶3 In 2012, the Cook County Board of Commissioners (Board) enacted the Cook
County Firearm Tax Ordinance. Cook County Ordinance No. 12-O-64 (adopted
Nov. 9, 2012) (codified at Cook County Code of Ordinances art. XX, §§ 74-665
through 74-675 (County Code)). The Firearm Tax Ordinance imposed a $25 tax on
the retail purchase of a firearm within Cook County. Cook County Code of
Ordinances ch. 74, art. XX, § 74-668 (adopted Nov. 9, 2012).
¶4 Thereafter, in 2015, the Board passed an ordinance to amend the County Code
to include a tax on the retail purchase of firearm ammunition at the rate of $0.05
per cartridge for centerfire ammunition and $0.01 per cartridge for rimfire
ammunition. Cook County Ordinance No. 15-6469 (adopted Nov. 18, 2015),
(codified at Cook County Code of Ordinances ch. 74, art. XX, § 74-668 (eff. June
1, 2016)). 1
¶5 Under the ordinances, the taxes levied on the retail purchaser are imposed in
addition to all other taxes imposed by the County of Cook, the State of Illinois, or
any municipal corporation or political subdivision. Cook County Code of
Ordinances ch. 74, art. XX, § 74-668(c) (eff. June 1, 2016). The revenue generated
from the tax on ammunition is directed to the Public Safety Fund for operations
related to public safety. Id. § 74-677. By contrast, the revenue generated from the
tax on firearms is not directed to any specified fund or program. Any person who
fails to remit the taxes is subject to a $1000 fine for the first offense and a $2000
fine for subsequent offenses. Id. § 74-671.
¶6 Plaintiffs—Guns Save Life, Inc.; DPE Services, Inc., doing business as Maxon
Shooter’s Supplies and Indoor Range (Maxon); and Marilyn Smolenski, a resident
of Cook County—sought declaratory and injunctive relief against defendants: Cook
1
The 2015 amendment also amended the ordinance’s name to the Cook County Firearm and
Firearm Ammunition Tax Ordinance.
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County; Zahra Ali, Director of the Department of Revenue of Cook County; and
Thomas J. Dart, Cook County Sheriff. In plaintiffs’ second amended four-count
complaint, they alleged that the firearm and ammunition taxes facially violate the
second amendment to the United States Constitution (U.S. Const., amend. II);
article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I, § 22)
(concerning the right to bear arms); and article IX, section 2, of the Illinois
Constitution (Ill. Const. 1970, art. IX, § 2) (the uniformity clause). Plaintiffs also
alleged that the taxes are preempted by the Firearm Owners Identification Card Act
(FOID Card Act) (430 ILCS 65/13.1 (West 2020)) and the Firearm Concealed
Carry Act (Concealed Carry Act) (430 ILCS 66/90 (West 2020)).
¶7 In response, defendants filed a motion to dismiss for lack of standing and failure
to state a claim upon which relief could be granted. The circuit court granted
defendants’ motion, in part. It held that retailer Maxon and resident Smolenski
lacked standing to bring their claims with respect to the firearm tax; however, the
court ruled that the advocacy group, Guns Save Life, Inc., had associational
standing to assert claims challenging both the firearm and ammunition tax.
¶8 The parties subsequently filed cross-motions for summary judgment on the
remaining claims. The circuit court denied plaintiffs’ motion and granted summary
judgment in favor of defendants. Specifically, the court determined that the taxes
did not infringe upon any federal or state constitutional right to bear arms because
they (1) constituted a proper exercise of Cook County’s home rule taxing powers
and (2) did not meaningfully impede plaintiffs’ ability to exercise their right to bear
arms. The court found that plaintiffs provided no evidence that the taxes would
prevent ownership or possession of firearms or that the taxes would affect the
ability of law-abiding individuals to retain firearms for self-defense.
¶9 The court further concluded that, even if the taxes burdened constitutionally
protected conduct, they nonetheless were substantially related to the important
governmental interest of public safety because they directed revenue to specific
programs designed to combat gun violence. With respect to preemption, the circuit
court held that neither the FOID Card Act nor the Concealed Carry Act’s plain
language preempted Cook County’s taxing powers. Lastly, the court determined
that plaintiffs failed to carry their burden of showing that the different rates of
ammunition classification in the ammunition tax violated the uniformity clause.
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¶ 10 The appellate court affirmed in part and reversed in part. 2020 IL App (1st)
181846, ¶ 85. The court affirmed the circuit court’s dismissal of Smolenski’s claims
for lack of standing, holding that she had no standing to challenge the firearms tax
because she had not paid it. Id. ¶ 33. As to Maxon, the appellate court reversed the
circuit court’s holding that it had standing to challenge the ammunition tax and held
that the retailer lacked standing to challenge either tax because the taxes were paid
by the consumer, not the retailer. Id. ¶¶ 37-38.
¶ 11 The appellate court also affirmed the circuit court’s grant of summary judgment
to defendants, finding that the challenged taxes did not restrict plaintiffs’ ownership
of firearms and ammunition, which was at the core of the second amendment.
Rather, the court found the taxes were akin to other types of sales taxes imposed on
the purchase of goods and services and were not more than a marginal restraint
upon any protected right under the United States or Illinois Constitution. Id. ¶¶ 57-
59. The court further held that the FOID Card Act and Concealed Carry Act did not
preempt the ordinances; it determined that the Acts only preempted local authorities
from exercising the power to regulate firearms, not the power to tax them. Id. ¶ 81.
Additionally, the court affirmed the circuit court’s determination that the taxes did
not violate the uniformity clause, concluding that the classifications were valid and
reasonably related to the objectives of the ordinances. Id. ¶ 70.
¶ 12 We allowed plaintiffs’ petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct.
1, 2019).
¶ 13 ANALYSIS
¶ 14 Plaintiffs’ challenge to the firearm and ammunition taxes arises in the context
of cross-motions for summary judgment where the circuit court entered a judgment
in favor of defendants. Summary judgment is appropriate if the pleadings,
depositions, admissions, and affidavits on file establish that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter
of law. 735 ILCS 5/2-1005(c) (West 2018); Coleman v. East Joliet Fire Protection
District, 2016 IL 117952, ¶ 20. A circuit court’s order granting summary judgment
is reviewed de novo. Cohen v. Chicago Park District, 2017 IL 121800, ¶ 17.
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¶ 15 Before addressing the constitutionality of the ordinances, we consider a
threshold question regarding the nature of the ordinances. The parties concede
before this court that the ordinances do not regulate firearms or ammunition under
the County’s home rule police power authority but, rather, levy a tax under its home
rule taxing authority. See Rozner v. Korshak, 55 Ill. 2d 430, 432 (1973)
(recognizing that “[t]he power to regulate and the power to tax are distinct
powers”). We agree that, under the plain language of the ordinances, this case does
not involve any exercise of a home rule unit’s regulatory powers.
¶ 16 In construing the nature of a municipal ordinance, we apply the same rules as
those which govern the construction of statutes. Napleton v. Village of Hinsdale,
229 Ill. 2d 296, 306 (2008). As with statutes, the best indicator of a municipality’s
intent is the language used in the ordinance, given its plain and ordinary meaning.
Cooke v. Illinois State Board of Elections, 2021 IL 125386, ¶ 52.
¶ 17 The ordinances are part of chapter 74 of the Cook County Code of Ordinances,
which is titled “Taxation.” See Cook County Code of Ordinances ch. 74. The
substance of the ordinances also plainly reveals that the purpose is to levy a tax to
generate revenue. See, e.g., Cook County Code of Ordinances ch. 74, art. XX, § 74-
677 (eff. Nov. 18, 2015). Multiple sections pertain to the logistics of collecting and
remitting the taxes. See id. §§ 74-669, 74-672, 74-673. Furthermore, the express
language of the ordinances reveals that the taxes are imposed “in addition to all
other taxes imposed” by the County. Id. § 74-668(c). Thus, we are confronted solely
with a taxing measure and a type of tax that is in addition to any generally applicable
sales tax on the retail purchase of goods or services. Id. The taxing measure is also
distinct from any registration or licensing fee involving firearms and ammunition.
In that light, we turn to plaintiffs’ constitutional contentions.
¶ 18 We begin our analysis with the Illinois constitutional claims and need not
consider the federal constitutional claim, as we find dispositive the claim that the
taxes violate the uniformity clause. Ill. Const. 1970, art. IX, § 2. The
constitutionality of an ordinance presents a question of law, subject to de novo
review. Grand Chapter, Order of the Eastern Star of the State of Illinois v. Topinka,
2015 IL 117083, ¶ 10.
¶ 19 The uniformity clause provides that, “[i]n any law classifying the subjects or
objects of non-property taxes or fees, the classes shall be reasonable and the
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subjects and objects within each class shall be taxed uniformly. Exemptions,
deductions, credits, refunds and other allowances shall be reasonable.” Ill. Const.
1970, art. IX, § 2.
¶ 20 Generally, to survive 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. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (2003). Before
this court, plaintiffs have abandoned their argument based on differences between
tax classifications for centerfire and rimfire ammunition, distinctions between in-
county and out-of-county purchasers, and any distinction between retail purchasers
and those exempt from the tax, including law enforcement. Instead, the inquiry is
primarily focused on the second prong, whether the taxing classification at issue—
a special tax on the retail purchases of firearms and firearm ammunition—bears
some reasonable relationship to the object of the legislation or to public policy.
¶ 21 This second prong is typically a narrow inquiry. While a municipality must
“produce a justification” for its classification, we normally uphold a taxing
classification as long as “a set of facts ‘can be reasonably conceived that would
sustain it.’ ” Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 73 (2008)
(quoting Geja’s Cafe v. Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239,
248 (1992)). Once the municipality produces a justification, the plaintiff then has
the burden to persuade the court that the explanation is insufficient as a matter of
law or unsupported by the facts. Arangold, 204 Ill. 2d at 156.
¶ 22 Here, the entity responsible for justifying the tax, the County, maintains that the
tax classification is justified since a reasonable relationship exists between the
special tax and the object of the ordinances. The proffered justification for the taxes
is to fund the staggering economic and social cost of gun violence in Cook County.
The County asserts that firearms and ammunition are instruments of death and that
their harmful effects cost the County immeasurably in terms of public health,
safety, and welfare.
¶ 23 The County presents the following statistics to quantify the problem. In 2017
alone, the Cook County Health and Hospitals System (CCHHS) treated more than
1100 patients with gunshot wounds, spending $30,000 to $50,000 on each patient.
In total, CCHHS spends approximately $30 to $40 million annually to treat gunshot
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wound patients, 25% of whom lack health insurance entirely. During the first six
months of 2020, the number of gunshot wound victims that CCHHS treated
increased by 20% compared to the same time frame in 2019. The County asserts
that the tax is a source of funding for gun safety or violence prevention programs
and a source of revenue for the criminal justice agencies charged with combatting
gun violence, which benefit everyone in the County.
¶ 24 Further, the County maintains that, to the extent plaintiffs argue that law-
abiding citizens who purchase firearms and ammunition neither benefit from the
tax nor cause the problems asserted to be remedied by it, this court has rejected the
notion that such a nexus is required. The County relies on Marks v. Vanderventer,
where we held that a tax is proper under the uniformity clause even where “the
burden caused by imposition of [a tax] falls on a group who neither benefits from
the [tax] nor caused the problems to be remedied by the [tax].” 2015 IL 116226,
¶ 22.
¶ 25 In the context of due process, we have explained that
“ ‘[a] tax is not an assessment of benefits. It is *** a means of distributing the
burden of the cost of government. The only benefit to which the taxpayer is
constitutionally entitled is that derived from his enjoyment of the privileges of
living in an organized society, established and safeguarded by the devotion of
taxes to public purposes. [Citation.] Any other view would preclude the levying
of taxes except as they are used to compensate for the burden on those who pay
them, and would involve the abandonment of the most fundamental principle
of government—that it exists primarily to provide for the common good.’ ”
Arangold, 204 Ill. 2d at 151-52 (quoting Carmichael v. Southern Coal & Coke
Co., 301 U.S. 495, 522-23 (1937)).
¶ 26 To overcome the County’s proffered justification, plaintiffs maintain that, as
we consider whether the tax classification is justified in relation to the object of the
legislation, we must also recognize the unique nature of the classification involved
here, which they argue burdens the fundamental right to keep and bear arms for
self-defense.
¶ 27 Relying primarily on Boynton v. Kusper, 112 Ill. 2d 356 (1986), plaintiffs assert
that the ordinances may not single out the exercise of a fundamental right for special
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taxation to raise revenue for the general welfare. Plaintiffs further argue that the
firearm tax merely funds the general revenue fund and that neither the firearm nor
the ammunition tax is specifically directed at gun violence prevention measures.
¶ 28 We agree that the ordinances impose a burden on the exercise of a fundamental
right protected by the second amendment. At its core, the second amendment
protects the right of law-abiding citizens to keep and bear arms for self-defense in
the home. District of Columbia v. Heller, 554 U.S. 570, 635 (2008). In McDonald
v. City of Chicago, 561 U.S. 742, 778 (2010), the United States Supreme Court
stated that “it is clear that the Framers and ratifiers of the Fourteenth Amendment
counted the right to keep and bear arms among those fundamental rights necessary
to our system of ordered liberty.” See also Johnson v. Department of State Police,
2020 IL 124213, ¶ 37 (“the second amendment right recognized in Heller is a
personal liberty guaranteed by the United States Constitution and the fourteenth
amendment” (citing McDonald, 561 U.S. at 791)).
¶ 29 While the taxes do not directly burden a law-abiding citizen’s right to use a
firearm for self-defense, they do directly burden a law-abiding citizen’s right to
acquire a firearm and the necessary ammunition for self-defense. See Illinois Ass’n
of Firearm Retailers v. City of Chicago, 961 F. Supp. 2d 928, 938 (2014) (noting
that the acquisition of firearms is a fundamental prerequisite to legal gun
ownership); Jackson v. City & County of San Francisco, 746 F.3d 953, 967 (9th
Cir. 2014) (the right to possess a firearm for self-defense implies a corresponding
right to acquire the ammunition necessary to use them for self-defense).
¶ 30 This court has not yet considered the analytical framework for addressing a tax
classification that bears on a fundamental right in the context of a uniformity clause
challenge. Thus, we look to other contexts for guidance. In Boynton, we struck
down a tax imposed upon those who applied for marriage licenses as violative of
the due process clause. 112 Ill. 2d at 368. The statute required that $10 of the fee
collected for issuing a marriage license must be directed into the Domestic Violence
Shelter and Service Fund (see Ill. Rev. Stat. 1983, ch. 40, ¶¶ 2403, 2403.1).
Boynton, 112 Ill. 2d at 359-60. The plaintiffs challenged that portion of the license
fee as an unconstitutional tax violative of due process and the uniformity clause. Id.
at 360.
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¶ 31 Although we limited our holding to the due process clause challenge, finding
that the relationship between the purchase of a marriage license and domestic
violence was too remote to satisfy the rational basis test (id. at 367-68), we also
found that the fee was a tax that directly impeded the fundamental right to marry
and that it failed to satisfy a heightened standard of review (id. at 369). We
highlighted that
“we are not dealing with an attempt to impose reasonable regulations upon
those who desire to enter into the marriage contract. Nor are we concerned with
a general State regulation or tax. Instead, by the statute in question the
legislature has singled out marriage as a special object of taxation.” Id.¶ 32 The court found that imposing the special tax upon the issuance of a marriage
license directly impeded the exercise of the fundamental right to marry and,
therefore, must be subjected to heightened scrutiny, rather than the lesser rational
basis test. Id. The court held that “[w]hen a statutory classification significantly
interferes with the exercise of a fundamental right, it cannot be upheld unless it is
supported by sufficiently important State interests and is closely tailored to
effectuate only those interests.” Id. (citing Zablocki v. Redhail, 434 U.S. 374, 388
(1978)).
¶ 33 We further rejected the notion that, because the amount of the tax was seen as
de minimis, it did not substantially interfere with the right to marry. Rather, we held
that, “[o]nce it is conceded that the State has the power to impose a special tax on
a marriage license, that is, to single out marriage for special tax consideration, there
is no limit on the amount of the tax that may be imposed.” (Emphasis omitted.) Id.
at 369-70. We concluded that, “[o]nce we acknowledge the State’s power to
specially tax the issuance of marriage licenses, a significant interference with the
fundamental right to marry has been established.” Id. at 370. Accordingly, a more
heightened level of scrutiny was required than rational basis.
¶ 34 In other contexts, we have also applied different levels of scrutiny depending
upon the nature of the classification involved. For example, in the equal protection
context, we have held that, where a statute does not affect a fundamental right or
involve a suspect class, it need only satisfy the rational basis test, whereas
classifications affecting fundamental rights are subject to heightened scrutiny. See,
e.g., Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 323 (1996).
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¶ 35 We have further explained that the
“uniformity clause was intended to be a broader limitation on legislative power
*** than the limitation of the equal protection clause [citation] and was meant
to ensure that taxpayers would receive added protection in the state constitution
based upon a standard of reasonableness that is more rigorous than that
contained in the federal constitution [citation].” Arangold, 204 Ill. 2d at 153.
¶ 36 While the standards articulated in these cases were not directly made in the
context of a uniformity clause analysis, they inform our analysis in evaluating a tax
classification that directly implicates a fundamental right. As in Boynton, 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.
¶ 37 In applying that standard to the firearm and ammunition taxes, we recognize
that the uniformity clause was “not designed as a straitjacket” for the County
(Arangold, 204 Ill. 2d at 153) and acknowledge the costs that gun violence imposes
on society. Nevertheless, the relationship between the tax classification and the use
of the tax proceeds is not sufficiently tied to the stated objective of ameliorating
those costs.
¶ 38 Under the plain language of the ordinances, the revenue generated from the
firearm tax is not directed to any fund or program specifically related to curbing the
cost of gun violence. Additionally, nothing in the ordinance indicates that the
proceeds generated from the ammunition tax must be specifically directed to
2
The taxes levied here are novel. We know of only two other similar tax ordinances enacted by
the cities of Seattle and Tacoma, Washington. See City of Seattle Ordinance No. 124833 (eff. Jan.
1, 2016) (codified at Seattle Municipal Code § 5.50.030); City of Tacoma Ordinance No. 28624
(eff. Jan. 1, 2020).
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initiatives aimed at reducing gun violence. Thus, we hold the tax ordinances are
unconstitutional under the uniformity clause.
¶ 39 Since our holding disposes of this case, we need not address plaintiffs’
additional challenges to the ordinances.
¶ 40 CONCLUSION
¶ 41 In sum, for the foregoing reasons, we hold that to satisfy scrutiny under a
uniformity challenge, where a tax classification directly bears on a fundamental
right, the government must establish that the tax classification is substantially
related to the object of the legislation. Under that level of scrutiny, the firearm and
ammunition tax ordinances violate the uniformity clause. Accordingly, we reverse
the summary judgment entered in favor of defendants and remand to the circuit
court for entry of summary judgment in favor of plaintiffs.
¶ 42 Reversed and remanded.
¶ 43 JUSTICE MICHAEL J. BURKE, specially concurring:
¶ 44 I agree with the majority that Cook County’s special tax on firearms and
ammunition violates the uniformity clause of the Illinois Constitution. Therefore,
the appellate court’s judgment must be reversed and summary judgment entered on
behalf of plaintiffs. I write separately because I believe that there is an even graver
problem with the County’s tax that the majority should not ignore.
¶ 45 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.
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¶ 46 As numerous Illinois cases explain, under our state constitution, “the power to
regulate and the power to tax *** are separate and distinct governmental purposes.”
Greater Chicago Indoor Tennis Clubs, Inc. v. Village of Willowbrook, 63 Ill. 2d
400, 402 (1976); Paper Supply Co. v. City of Chicago, 57 Ill. 2d 553, 576 (1974);
Rozner v. Korshak, 55 Ill. 2d 430, 432-33 (1973); accord Ill. Const. 1970, art. VII,
§ 6(a) (distinguishing the power “to regulate for the protection of the public health,
safety, morals and welfare” and “to tax”). 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.
¶ 47 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. Specifically, the
majority states that the tax ordinance fails to pass constitutional muster only
because “the relationship between the tax classification and the use of the tax
proceeds is not sufficiently tied to the stated objective of ameliorating [the costs
that gun violence imposes on society].” Supra ¶ 37. The majority then admonishes
that revenue generated from the taxes is not directed at any initiative or program
directed at curbing gun violence or reducing it costs. Supra ¶ 38. The only problem
with the majority’s approach—and the guidance it offers the County—is that such
counsel, if followed, would still violate the provision of the Illinois Constitution
noted above that plainly states that the right of the individual to keep and bear arms
is subject only to the police power, not the power to tax. See Ill. Const. 1970, art. I,
§ 22. Thus, the majority is leading the County down a road of futility.
¶ 48 In upholding the tax, the appellate court did not even address plaintiffs’
argument that they made before that court that the tax violates article I, section 22,
of the Illinois Constitution. Defendants’ brief before this court hardly does any
better than the appellate court did. They raise three meritless points in response. In
that regard, they first argue that article I, section 22, is not implicated because the
County’s tax is de minimis and therefore does not infringe the right to keep and bear
arms. As the majority in the present case points out, we rejected the same sort of
argument in Boynton v. Kusper, 112 Ill. 2d 356, 359-60, 368 (1986), when we found
a nominal marriage license tax violated due process principles. See supra ¶ 32.
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¶ 49 Next, the County defendants argue that striking down the tax under section 22
of article I “would bring about the untenable situation where a home rule entity can
substantially infringe the right to bear arms pursuant to the police power yet cannot
impose a de minimis tax.” I would note that the result decried by the County is the
opposite of untenable. It is the only result permitted by the plain text of section 22
of article I. The County must also keep in mind that it cannot simply use the guise
of the police power to produce revenue or to tax. Paper Supply Co., 57 Ill. 2d at
576. And while “ ‘the safety and good order of society’ ” may justify reasonable
regulation of the right to keep and bear arms so long as it can survive scrutiny under
our state constitution and the second amendment (see Kalodimos v. Village of
Morton Grove, 103 Ill. 2d 483, 491-92 (1984) (quoting 6 Record of Proceedings,
Sixth Illinois Constitutional Convention 88)), it does not follow that the right can
be subject to discriminatory taxation in violation of the plain language of article I,
section 22, of the Illinois Constitution.
¶ 50 Additionally, the County claims that it “cannot [be] explain[ed] why the
General Assembly would specially preserve for home rule units a power to tax
handguns”—the County cites section 90 of the Firearm Concealed Carry Act (430
ILCS 66/90 (West 2020)) and section 13.1(e) of the Firearm Owners Identification
Card Act (430 ILCS 65/13.1(e) (West 2020)) for this proposition—“if article I,
section 22 prohibits such taxation.” The easy answer to this point is that the statutes
the County mentions do not “specifically preserve” the power to tax—all they do
is specifically eliminate the power to regulate. Moreover, the reason why those
statutes preempt handgun regulations, not handgun taxes, is obvious—the Illinois
Constitution only allows the legislature to preempt regulations, not taxes. And taxes
that infringe the right to keep and bear arms are already precluded by the Illinois
Constitution. See Ill. Const. 1970, art. I, § 22; id. art. VII, § 6. Moreover, 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 discriminatory taxation of firearms, where the text of that constitution
clearly prohibits taxation that infringes on the right to keep and bear arms.
¶ 51 Again, I believe that the majority’s analysis wrongly leaves the door open for a
municipality to enact a future tax on firearms or ammunition that is more narrowly
tailored to the purpose of ameliorating the cost of gun violence. The only problem
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with that approach is that it would still violate the Illinois Constitution.
¶ 52 CHIEF JUSTICE ANNE M. BURKE took no part in the consideration or
decision of this case.
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