A new Working Paper by Konstadinos T. Moros entitled Excising the Second Amendment: Why Taxes Targeting Common Firearms Are Unconstitutional is available. Kostas is Director of Legal Research and Education at the Second Amendment Foundation.
In recent years, a growing number of states have enacted or considered special excise taxes specifically targeting the purchase of firearms and ammunition. California enacted such a tax in 2023, openly labeling it a “sin tax.” The strategy is straightforward, and mirrors shameful laws that suppressed the rights of freed Blacks during the Jim Crow era: if a legislature cannot ban the exercise of a constitutional right outright, it can make that exercise progressively more expensive until it becomes practically inaccessible to ordinary citizens. Using the historical test mandated by the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen, this Article argues that special taxes on common arms—those that single out firearms, ammunition, and related items (rather than applying generally to all goods)—have no support in the Nation’s historical tradition of firearm regulation and are therefore unconstitutional. 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.
