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Eye On Illinois: Cook County’s legal loss could be watchdogs’ gain

A recent judicial opinion might serve as a useful roadmap for government watchdogs.

On Thursday, the Illinois Supreme Court nullified Cook County’s taxes and fees on the sale of guns and ammunition. While this decision understandably drew attention in Second Amendment circles, the court’s reasoning is broadly applicable.

Plaintiffs challenged two specific provisions: Cook County’s 2012 enactment of a $25 surcharge on all guns sold in the county and its 2015 ammunition tax of a penny or nickel per cartridge. The plaintiffs said the extra expense was an undue burden on individual gun rights. The majority opinion acknowledged that hurdle, but said that reality alone wouldn’t resolve the dispute.

Justice Mary Jane Theis wrote the opinion, which explained how the state constitution’s uniformity clause factored. Because the “tax classification directly bears on a fundamental right,” Theis wrote, it must “bear some reasonable relationship” to the law creating the tax. Plaintiffs have the burden of proving a municipality’s justification for its tax is insufficient, which the court acknowledged usually is a difficult hurdle.

In the case, Cook County said the money was supposed to offset the “staggering economic and social cost of gun violence” and therefore had broad public benefit. In theory, the extra funds could bolster law enforcement agencies and safety and violence prevention efforts. In reality, the law doesn’t do what the county suggested.

“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,” Theis wrote. “Additionally, nothing in the ordinance indicates that the proceeds generated from the ammunition tax must be specifically directed to initiatives aimed at reducing gun violence.”

Theis said the court earlier struck down a law directing $10 of a $25 marriage license fee to a Domestic Violence Shelter and Service Fund, in part because it interfered with the fundamental right to marry, but also that the link between marriage licenses and domestic violence didn’t hold water.

Although he agreed with the majority’s conclusion, Justice Michael Burke wrote his own concurring opinion, saying it wrongly suggests there’s a right way to single out guns and ammunition sales. Any such tax would fail, he said, because it would amount to a regulation, and under state law, governments can’t use taxes for that purpose.

“The right of the individual to keep and bear arms is subject only to the police power, not the power to tax,” he explained.

Big picture takeaways are that governments should make sure special taxes and fees actually serve their intended purposes and that taxpayers should raise a stink when they don’t.

Wise activists will study this opinion closely for future leverage.

Scott T. Holland writes about state government issues for Shaw Media. Follow him on Twitter @sth749. He can be reached at sholland@shawmedia.com.